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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052484
DEPUTY PRESIDENT WELLS
C2015/2272
s.739 - Application to deal with a dispute
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
and
Simplot Australia Pty Ltd
(C2015/2272)
AMWU and Simplot Australia Pty Limited National Collective AGreement 2011-2014
Devonport Magistrates Court
9.33 AM, TUESDAY, 22 SEPTEMBER 2015
Continued from 21/09/2015
PN664
THE DEPUTY PRESIDENT: Thank you. Mr Mead.
PN665
MR MEAD: Good morning, your Honour. I understand that the AMWU, pursuant to our discussions yesterday, intend to call now Mr Clinton Keogh to provide evidence. I've just indicated to my friend that in respect of Mr Keogh's statement there are two paragraphs that we would seek to object to. They are paragraphs 28 and 29. I've just indicated to my friend that in, I guess, assessing those two paragraphs they seem to depose a conversation with a witness who was not directly involved and perhaps was informed of the content of the discussion or purported discussion.
PN666
So whilst we accept that strictly speaking the rules of evidence don't apply, they would clearly seem to be hearsay evidence and provided solely for a hearsay purpose. So in that context they are of little probative value, we would say, in terms of the matter. I don't know if my friend now intends to rely on those paragraphs but that is the objection we put to that material.
PN667
THE DEPUTY PRESIDENT: Yes. Thank you, Mr Mead. Mr Nguyen.
PN668
MR NGUYEN: Your Honour, we included the statement only to support the evidence of Mr Hind's statement that at some point during this time these events happened where the payment was reinstated. The respondent had an opportunity to refute those paragraphs because they did call Mr Beard, and Mr Beard did make a statement. There's nothing in Mr Beard's statement which refutes or challenges what is said about the conversation that he had with Mr Keogh, and so I think it should stay in.
PN669
THE DEPUTY PRESIDENT: Okay. Thank you. Mr Mead.
PN670
MR MEAD: Just to reply, so the evidence reflects what is the witnesses' understanding of what Mr Beard said. We would say that that's not something that Mr Beard can actually respond to in terms of an understanding of another individual, and that's why Mr Beard did not address it in material in reply. We maintain our objection that it is hearsay and is only provided for a hearsay purpose.
PN671
THE DEPUTY PRESIDENT: Well, I suppose, Mr Mead, what I will say is that, I mean, whilst he used the words "understand" it's not about his understanding of what Mr Beard might have thought about the matter. What he's saying is that he understands that this is actually what occurred, that a phone call occurred.
PN672
Look, what I propose to do because I don't want to take up a lot of time arguing about this point which may or may not be relevant in the end is that 28 and 29 stay in for the purpose of the evidence that Mr Keogh is going to be giving today, and if there are particular questions which Mr Nguyen wants to ask him in relation to clarification of that, and if it is hearsay, then I will give it the appropriate weight that it deserves.
PN673
I mean, corroborating evidence is not corroborating evidence if it's simply just repeating, you know, the facts that somebody else has put when that individual had no particular first-hand knowledge of it. So, look, that's how I propose to do it and I will apply the appropriate weight at the end.
PN674
MR MEAD: Thank you.
PN675
THE DEPUTY PRESIDENT: And if you want to make submissions to that effect in your closing submissions, perhaps we handle it that way.
PN676
MR MEAD: Thank you, Deputy President.
PN677
THE DEPUTY PRESIDENT: Thank you. All right. Mr Nguyen, are you in a position to call your witness?
PN678
MR NGUYEN: Yes, your Honour.
PN679
THE DEPUTY PRESIDENT: Thank you.
MR NGUYEN: The applicant seeks to call Mr Keogh.
<CLINTON MARK KEOGH, AFFIRMED [9.37 AM]
EXAMINATION-IN-CHIEF BY MR NGUYEN [9.37 AM]
PN681
MR NGUYEN: Mr Keogh, do you have your statement that you've prepared for this matter with you?‑‑‑Yes.
PN682
Yes. Is it the statement dated 30 July?‑‑‑Yes.
PN683
Is that statement true and correct to the best of your knowledge?‑‑‑To the best of my knowledge, yes.
*** CLINTON MARK KEOGH XN MR NGUYEN
PN684
Your Honour, we seek to tender Mr Keogh's statement.
THE DEPUTY PRESIDENT: Thank you. That is a witness statement of Clinton Mark Keogh containing six pages and 40 paragraphs, dated 30 July 2015, to be marked as exhibit A3.
EXHIBIT #A3 WITNESS STATEMENT OF CLINTON MARK KEOGH DATED 30/07/2015
PN686
MR NGUYEN: Thank you, your Honour. We don't have any further questions.
THE DEPUTY PRESIDENT: Thank you very much. Mr Mead.
CROSS-EXAMINATION BY MR MEAD [9.38 AM]
PN688
MR MEAD: Thank you, your Honour. Good morning, Mr Keogh. You said you have a copy of your statement there with you. Could I just draw your attention there to paragraph 2. You indicate in the first sentence of paragraph 2 you're currently employed as a storage specialist at Simplot Ulverstone?‑‑‑Yes.
PN689
You've been in that position for approximately 10 years, so since around 2005. Is that the case?‑‑‑Yes. Thereabouts. That probably wasn't official all the time, you know. I used to look after stores, helping Leon White who is my was my supervisor then. And then, yes, became storage manager.
PN690
Okay. So I'm just trying to understand. So in terms of the responsibilities that you have a storage specialist and I will talk to you about those in a moment is it the case that those responsibilities have largely been the same for that 10-year period that you're talking about?‑‑‑Pretty well, yes.
PN691
And then the second sentence of paragraph 2 you say:
PN692
My position title has changed over the years a number of times but basically the role was the same.
*** CLINTON MARK KEOGH XXN MR MEAD
PN693
And the position once again, are you describing your role as a storage specialist in that second sentence? That the title has changed but largely the responsibilities haven't?‑‑‑I suppose my whole job role has morphed a lot. I started there just a general on-the-ground person and then and was helping Leon on the side with storage because of my previous experience in my previous jobs. And as he knew that I kind of knew what I was talking about, you know, I slowly came into the role. I got offered a position as a leading hand. I was that for a while.
PN694
Yes. And you said that you started in stores, so that's in paragraph 4 you talk about that. That was around 2001, was it?‑‑‑Yes. Yes. Thereabouts. Yes.
PN695
That period that you mentioned when you were a leading hand, was that in the period between when you started storage and then when you became a storage specialist in 2005?‑‑‑Yes.
PN696
Yes. Okay. And so just so I understand your role as a storage specialist, you've identified and this is at paragraph 3 you look after the harvested potatoes to make sure that they don't spoil, and supply good quality product to the factory. And you also look after store maintenance. If I could just deal with that last sentence first. So look after store maintenance. Am I correct in assuming that what that means is that when the stores don't have potatoes in them so when they're bare, you have responsibilities. So in a non-storage season you have responsibilities to make sure that the stores are operating in good working orders, doors are fixed, ducting is appropriately, you know, maintained. So the good working of the stores is part of your responsibilities in the non-storage season?‑‑‑Yes. Yes.
PN697
Okay. Then in the storage season, as I understand it, your responsibility is to travel to the various stores and check on the quality of the potatoes that are being stored, to ensure that the product isn't spoiling?‑‑‑Yes, that's correct.
PN698
And you also do some quality testing from time to time in relation to that product. It's correct then also that, you know, your role as a storage specialist with all those responsibilities in relation to stores maintenance, quality product, ensuring that potatoes don't spoil, you're not principally responsible for the loading or unloading of potatoes as a storage specialist, are you?‑‑‑I am to a in a way, as in as far as making sure that the people put them in right. Not dropping them, for bruising, and all that kind of stuff. And the same on the way out, to a point that they're not damaged. But not yes, my main role would be while they're sitting in the store, in dormancy, waiting to be used, yes.
PN699
So the quality issues and I think one of the discussions that we had yesterday that you didn't have the benefit of is that part of the role of a person who is, I guess, a field service operator, someone like Mr Stephen Hind, is to ensure that there's no bruising to the potatoes, that there's the right drop distance it's six inches, I think?‑‑‑Yes.
*** CLINTON MARK KEOGH XXN MR MEAD
PN700
From the top of the pile down to the pile of potatoes. Things like that. So you've got some responsibility for the quality issues - - -?‑‑‑Yes.
PN701
- - - that go with storing potatoes. Is that the case?‑‑‑Yes. Some. Yes.
PN702
But not the core responsibilities of loading and unloading. That doesn't - - -?‑‑‑No. No. That's no. In early days I used to do it but and sometimes I still do it if they're short of people but, yes, mainly it would be the bloke the people that are actually operating that shed at the time.
PN703
Yes. And the early days I just want to understand the timeline, so we're talking in that early 2001/2002/2003 period. Is that what you're saying?‑‑‑In the early days I would have - - -
PN704
Yes. I'm just trying to understand the early days; what time that represents, in terms of which years. Is it 2001 to around 2003? 2001 to 2004?‑‑‑What? My own job?
PN705
Yes. Yes?‑‑‑Yes. Probably 2002. Prior to that I was doing a bit of casual work and - - -
PN706
Sure?‑‑‑Yes, and then - - -
PN707
Okay?‑‑‑And probably about 2002 maybe I started taking on a bit more I was casual still but I was yes.
PN708
Okay. That's fine. Okay. Thank you. And if we could just draw your attention now to paragraph 5 and just take a look at paragraphs 5 through 9 of your statement, Mr Keogh. I guess I'm basing this in part on what you say in paragraph 6 about the truck drivers driving the trucks in and then when we then start loading the trucks with potato spuds. Is what you're describing in paragraph 5 through 9 what's been called the hogging out process? So I'm just asking at paragraphs 5 to 9. I'm just trying to understand your evidence there?‑‑‑Yes.
PN709
Is that about the hogging out process? The loading of trucks from the stores?‑‑‑Yes. That would be hogging out, yes.
PN710
Okay. Thank you. And then at paragraph 10, if you just see that there, you say:
*** CLINTON MARK KEOGH XXN MR MEAD
PN711
For the other side of the season we are then unloading the potato spuds from the trucks into storage.
PN712
And really at paragraph 10 through paragraph 17 you identify a number of off-site stores. So it's correct at paragraphs 10 through 17 what you're describing there is the loading process. So the loading of potatoes into the off-site stores. That's what that evidence is about, isn't it?‑‑‑I think I - - -
PN713
I'm not trying to trick you.
PN714
THE DEPUTY PRESIDENT: Unloading, do you mean, Mr Mead?
PN715
MR MEAD: I think - - -
PN716
THE WITNESS: I think basically what I was saying - - -
PN717
MR MEAD: Unloading. So loading into the stores, which would be unloading, yes.
PN718
THE DEPUTY PRESIDENT: Yes. Yes.
PN719
MR MEAD: Yes. The unloading process. Thank you.
PN720
THE DEPUTY PRESIDENT: Does that clarify the question for you, Mr Keogh?‑‑‑Yes. It's when I was getting asked these questions, those it was basically what was the process, yes. And that can be basically the process is the same whether you're loading or unloading. You get down there at a certain time. You've got to be there by the time the trucks are at the gate. You know, there's an opening time for gates. Now, whether that's in or out and this was more to determining what travel times it was taking to get there, when this was all getting done.
PN721
MR MEAD: That's fine. So your evidence is that what you're describing at paragraph well, 10 seems to describe the other side of the season. So the unloading period. But are you saying what paragraphs 11 through 17, that could be equally applied to loading and unloading?‑‑‑Pretty well.
PN722
Okay?‑‑‑Where I've said there's a bit in there where I've said about depending on demand at the factory. Well, that would be an unloading time, you know.
*** CLINTON MARK KEOGH XXN MR MEAD
PN723
Yes?‑‑‑But, I mean, these stores have to be filled as much as they have to be emptied. You know, basically it's just the reverse role of what you do.
PN724
Yes. I see. And can I just ask so paragraph 13, you talk about Wings Farm. Is that Wings Longford? There's been some evidence about Wings Longford - - -?‑‑‑Yes.
PN725
- - - being a location for off-site storage?‑‑‑Yes. Longford, yes. Point Road at Longford.
PN726
Would you agree with me that that store hasn't been used since around 2005?‑‑‑Probably, yes.
PN727
Okay?‑‑‑Yes.
PN728
And then paragraph 14, Lindsay's is that Lindsay's Bishopsbourne? There's been some evidence about a store - - -?‑‑‑Yes. Bishopsbourne. Yes.
PN729
Yes. And once again, would you agree with me that that store hasn't been used since 2005?‑‑‑That would be about correct.
PN730
Yes. Thank you. And the Latrobe Valley, on paragraph 16, once again there has been some evidence that that store hasn't, once again, consistently been used since around 2005 as well. Is that consistent with your recollection?‑‑‑Yes. I think we used it two years ago. It comes on and off. That usually is the last one. If we haven't got enough storage room, that we will use it if we have to, or not, and whether it's available or not. Sometimes the companies that own them, use them themselves and we can't get hold of them.
PN731
Okay?‑‑‑Yes.
PN732
So just so I understand, so paragraphs 11 through 17, you said that that applies equally to the loading and unloading tasks?‑‑‑Pretty well. Like the times and all that, yes.
*** CLINTON MARK KEOGH XXN MR MEAD
PN733
Yes. And your direct experience in relation to the loading and unloading tasks occurred in that period prior to 2005 when you took on the role as storage specialist?‑‑‑Yes. Like I say, I still do it now, depending on labour demands. You know, if we haven't got enough people, I'll go out and help, if they can't get enough people or all the rest of it.
PN734
So occasionally you will - - -?‑‑‑Occasionally, I will do it, yes.
PN735
But in terms of your direct knowledge of the unloading and loading process as part of your core day-to-day activities, we're talking about pre-2005, are we?‑‑‑That I actually person done it, the majority, back then, yes. But I deal with these blokes every day because I check the stores nearly every day. So if they're down there hogging, I will go and talk to them and say, "How's things going?" You know, I have dealings with them every day.
PN736
I understand, yes. Okay. Now, if I can take you to paragraphs 18 and 19 of your statement, once again you're talking there about the time when I guess the methodology that you understood applied for clocking on and off in terms of travel time. Once again, do I understand that what you're talking about there is that period when you were engaged in the loading and unloading of part of your principle duties, so that pre-2005 period?‑‑‑Yes.
PN737
Yes?‑‑‑Basically.
PN738
Okay. Yes?‑‑‑For the majority of it, yes.
PN739
And at paragraph 21, you say there:
PN740
I will be paid for overtime for the amount of hours worked over eight hours in a day.
PN741
Do you see that there?‑‑‑Yes.
PN742
And you go on to say:
PN743
This is exactly the same as for my peers on site at Ulverstone.
PN744
I just want to understand, when you say your peers, you're talking about the other food employees at Ulverstone. Is that the case?‑‑‑Anyone on day shift, yes, pretty well.
*** CLINTON MARK KEOGH XXN MR MEAD
PN745
In the food processing section or in the - - -?‑‑‑Storage.
PN746
Storage?‑‑‑At Ulverstone, I'm assuming that every person who does day shift would get roughly the same thing. If they do eight hours they get they're entitled to an allowance. You know, a payment, overtime payment.
PN747
Yes. Okay. And then at paragraph 22, see there you say:
PN748
Normally we wouldn't get paid unless it's a big day and a big requirement.
PN749
Sorry.
PN750
We wouldn't get paid overtime unless it's a big day and a big requirement at the factory because we get the work done in the eight hours.
PN751
?‑‑‑Yes.
PN752
Can I just understand, are you talking there about the employees that work exclusively on site? So just I'm trying to understand who is the "we" that we're talking about there at paragraph 20?‑‑‑No, that's again everyone. If we were working at Powranna and they only wanted four loads, and say it's, you know, an hour and a half down. Well, you drive down, you do your four loads which will take, you know, say, an hour, two hours by the time you clean up and that, and then drive home, well, you're going to be within your eight hours so you don't get your you know, you're just like anyone else. You don't get overtime.
PN753
Okay?‑‑‑If you're paid if you do your overtime down there, well, you used to be paid well, they used to be paid time double time on the way back, single time, whatever rate applied at that time. It's just like yes.
PN754
Okay. So I'm just trying to understand, so paragraph 22 you're not talking about your on-site peers at Ulverstone. So you're talking there about - - -?‑‑‑I would say there I was talking about the blokes that this is affecting going off-site.
PN755
Yes. And when you say you're including yourself in that?‑‑‑Yes.
*** CLINTON MARK KEOGH XXN MR MEAD
PN756
Yes. So once again, if I'm trying to understand the timeline for when this evidence applies, you're talking about that period when you were doing the unloading and loading pre-2005. Is that correct? Yes? Sorry, the transcript doesn't pick up you're nodding. So is that yes?‑‑‑Yes. Sorry.
PN757
Thank you?‑‑‑I just you keep going back to that 2005 thing but, like I say, I still do this. Like, I'm doing it next week because on Sunday I will be working. So this might apply to me if I was working off-site still. So, like I said, even though I've taken on a more responsible role as in storage manager or storage specialist now, I still do that work and I'm still on wages, so it still applies to me today.
PN758
Yes?‑‑‑It's just that the bulk of it was in those early days, yes.
PN759
Yes. So but I'm just trying to understand, the evidence you're giving here, what time period that relates to because you talk about "we" so it clearly means you and other people. So I'm trying to understand, is that when you were working with other people in that pre-2005 period?‑‑‑No. There I'm talking about the people today as came up, the blokes that it's affecting now, I would have been talking about. I wouldn't bother about myself.
PN760
THE DEPUTY PRESIDENT: Sorry, what was that, Mr Keogh, that last bit?‑‑‑I'm not too bothered about it because it doesn't affect me that much, or at all at this stage. So this is about the blokes that are going off-site.
PN761
MR MEAD: Yes?‑‑‑Yes.
PN762
And it doesn't affect you because - - -?‑‑‑Well, I actually don't know why it doesn't affect me. I'm assuming if this all goes pear shaped, it probably will affect me. I don't know. I've asked that question but I've been told that it won't affect me.
PN763
I see?‑‑‑But I don't see the difference in what they do to what I do, so that's - - -
PN764
So if I could take you then to paragraph 23 of your statement, you talk there about do you see that there, yes, at paragraph 23 a new superintendent coming in. Who was that?‑‑‑That would be Phil Guard, I was talking about there.
PN765
Okay?‑‑‑He was a new superintendent.
PN766
And then you say:
*** CLINTON MARK KEOGH XXN MR MEAD
PN767
He said, "We have to pay them travelling time."
PN768
Did he say that to you?‑‑‑Yes. He came down into our weigh bridge area where we all work. Kerry Beard, Leon White and myself, you know, that's our office. And we all get on reasonably well and we all work well together and, you know, you talk about normal things when you're not thinking I don't suppose anyone thought this was going to get to where it is now. But, yes, he came down and said "we won't be paying the casuals overtime for travelling anymore."
PN769
So he said that to you? Is that correct?‑‑‑He said it just to just as in more probably to Kerry but I was sitting there, yes.
PN770
Okay. So, I'm sorry, just later on in your statement you've said he came downstairs and said we're not going to pay travel. This is still at paragraph 23, and then you go on to say this is the second-last sentence:
PN771
I can't recall how exactly it came to me.
PN772
Are you saying now that you can recall exactly how it came to you, and that Phil Guard said that to you?‑‑‑He said it to us.
PN773
Okay?‑‑‑He did say it to me.
PN774
So just so I - - -?‑‑‑You've got to remember this statement was taken over a phone. You're trying to remember things and the questions are asked and, you know, and I kept saying, "Well, I'm pretty sure." Because, I mean, like I said, I didn't no one realises that this is going to go off into something bigger than it needed to be but so you don't tend to write notes and take you know, put dates on things and all the rest of it.
PN775
I understand?‑‑‑Yes. Yes.
PN776
I'm just trying to understand the evidence you're giving today and the evidence you've given in your statement?‑‑‑Yes.
*** CLINTON MARK KEOGH XXN MR MEAD
PN777
So you've said today that you do recall that Phil Guard told you, "We have to pay them travelling time." So you're stating here that you can't recall exactly how it came to you. You can recall. Is that the case?‑‑‑Yes. I remember. The more I've thought about it since this has been I know that's exactly what happened. He walked in downstairs. Like I said, he wasn't saying it to me but we all sit like this close to each other, like how we are here. This is about the size of our office. And he has gone to Kerry, "We can't we're not paying travelling time anymore for the boys going off-site."
PN778
Okay. I'll ask this question now to be fair. Is there anything else now, having had the benefit of further considering your statement, that you think that you would like to change?‑‑‑No. I'm happy to work through it because, like I said, a lot of this is you know, you get asked late at night about what's going on.
PN779
I appreciate that, Mr Keogh, but I think Mr Nguyen asked you when you were giving your evidence and before the statement was tendered, that to the best of your knowledge is the statement true and correct?‑‑‑Yes.
PN780
And you said, yes, it was. So I just want to make sure, before we go any further, having the benefit of reviewing the statement, is there anything else that you want to change in your statement before we further move through the questions?‑‑‑No, not really. Not that I can say.
PN781
Okay?‑‑‑If you make a mistake, you've made a mistake. You can't I'm only human.
PN782
No, and I'm not trying to be critical. I'm just trying to understand - - -?‑‑‑That's all right.
PN783
- - - where the evidence sits, Mr Keogh?‑‑‑Yes.
PN784
Paragraph 23, you say there once again:
PN785
It went down to the pay section and someone said, "What's going on?"
PN786
Can I ask you, you weren't present for that comment? Is that something that you've been told or - - -?‑‑‑23?
PN787
Do you see that it's the third sentence in 23:
PN788
When that went to the pay section someone said, "What's going on?"
*** CLINTON MARK KEOGH XXN MR MEAD
PN789
You weren't there for that comment being made?‑‑‑I think Hoss came in. I think what that means is when Hoss it's not probably written as good as it could be, but I think Hoss came in and said, you know, "What's going on again?" Like, "Is it changing again," kind of thing.
PN790
Okay. So whilst you've said in your statement, "Someone said" you now want to change that to, "Hoss said"? Is that am I understanding that correctly?‑‑‑Hoss has said that to me, "What's going on?" I'm thinking that's what I I don't know if this is written quite right.
PN791
Well, take your time, Mr Keogh. I'm not trying to trap you. I'm just trying to understand this paragraph?‑‑‑Yes. I'm not sure about that, "What's going on" bit in there.
PN792
Okay?‑‑‑It doesn't make sense to me now.
PN793
Okay. Did you have some assistance in drafting this statement, Mr Keogh?‑‑‑Only the questions I was asked, yes.
PN794
Okay. So you were asked some questions and then it was put into - - -?‑‑‑It was probably it was probably getting a bit heated because it was a long thing and, you know, when people ask you questions and you go and but, no, I didn't have any coaching or anything, no.
PN795
No. No. I'm not saying - - -?‑‑‑No.
PN796
I'm just trying to understand how your statement came to be formed. So what you said you were interviewed and then did you review the statement before it was filed?‑‑‑Yes, I read over it.
PN797
Okay?‑‑‑Probably should have read it a bit better.
PN798
Sorry, what was that, Mr Keogh?‑‑‑I said I probably should have read it a bit better but yes.
PN799
Okay. And then if I could take you to paragraph 24. In paragraph 24 you refer to an email that you sent to Jenny Dowe. And then that's included as an attachment at attachment A. Could I ask you to just go to attachment A for me, please, Mr Keogh?‑‑‑Yes.
*** CLINTON MARK KEOGH XXN MR MEAD
PN800
So halfway down the email to Ms Dowe this is dated 5 March 2013 you see it says there there's a sentence that starts, "The problem is". Do you see that there?
PN801
The problem is that the same gangs that work on site - - -
PN802
Do you see that?‑‑‑Yes. Yes.
PN803
Can you just read that onto the record for me?‑‑‑
PN804
The problem is that the same gangs that work on site get paid all their overtime requirements and a lot better conditions.
PN805
Okay?‑‑‑Yes.
PN806
So is it correct that I understand that what you're saying there is the problem is that those employees who work only on-site get overtime after eight hours of work? Is that the problem that you're identifying there?‑‑‑Yes.
PN807
Yes. Okay. And then if you just go one sentence up, you say do you see that, one sentence up?‑‑‑Mm-hm.
PN808
Could you just read that for me, please?‑‑‑
PN809
During storage season the crews can work 12 hours a day and then half to drive one and a half hours back to Ulverstone, so three hours a day will be paid at single time.
PN810
Okay. So it's correct though that those people who work greater than eight hours a day off site so between eight hours and 12 hours you also understand that they would have received overtime for that period as well? For performing work for the 12 hours in the day that you identified?‑‑‑Yes.
PN811
They were - - -?‑‑‑The people back on site would have received overtime, yes.
PN812
But also those who were doing the storage work that you've identified, who are working 12 hours a day - - -?‑‑‑Off site.
*** CLINTON MARK KEOGH XXN MR MEAD
PN813
Off site?‑‑‑Yes.
PN814
We're not saying that those who perform 12 hours of work aren't receiving overtime, are we?‑‑‑I beg your pardon?
PN815
So we're not saying so just look at the second sentence. It's broken up into two concepts, as I can see it. Those who are performing work for 12 hours a day and then driving home for a further one and a half hours we're not saying, are we, that those who are working for the 12 hours in that day off-site aren't also getting paid overtime for those 12 hours of work?‑‑‑People working off site aren't getting paid, no.
PN816
Sorry, so are you saying - - -?‑‑‑It's pretty simple. The people that work on site get paid overtime. The people that work off site aren't getting paid their overtime until they do 11 hours. That's really it's really that simple.
PN817
So are you saying that your understanding of what was occurring is that people off site who are working greater than eight hours in a day, weren't getting paid overtime until they worked greater than 11 hours in the day?‑‑‑Yes. If this if they if this came in. If what they were saying, that no one was going to get paid overtime, if that comes in that's what I was trying to explain to Jennifer.
PN818
So I will make it a little bit simpler, I hope. If I get to the store, the off-site store at 7 am and I work at the store until 6.30 pm I think that's your evidence that, you know, you could work up to 11 and a half hours at the store and then have to drive back to Ulverstone. From working from 7 am to 6.30 pm, those hours that are greater than eight hours in that period, you would receive overtime for that, wouldn't you?‑‑‑Off site, we used to receive overtime for that.
PN819
Yes?‑‑‑But if this comes in, we won't receive overtime for it because it's classed as all of a sudden they're classing it as travel time.
PN820
No, no, I'm not talking about the travel. I'm talking about if I spent 11 and a half hours unloading potatoes at Powranna, I would get paid overtime for the hours of work that I work greater than eight hours unloading potatoes at Powranna?‑‑‑No. Not if this comes in. Not if when they're running under this.
PN821
So, sorry, Mr Keogh, I just don't know if you're not - - -?‑‑‑Obviously I'm not.
*** CLINTON MARK KEOGH XXN MR MEAD
PN822
I'm not talking about travel time. I'm talking about an employee who is at Powranna and is unloading potatoes?‑‑‑Yes.
PN823
Unloading, you know, 20 trucks in a day. And to unload those trucks it takes me 11 and a half hours to unload those trucks. I'm still on site at Powranna at the 11 and a half hour mark, I would receive overtime payments, would I not?‑‑‑At the 11 and a half hour mark?
PN824
So do I just is it your understanding that they receive ordinary time for the hours between eight hours and 11 and a half hours, even if they're unloading potatoes between those hours?‑‑‑If they're working eight hours - - -
PN825
Yes, and then I continue working unloading potatoes for hour 9, hour 10, hour 11, hour 12 so I'm doing a 12-hour shift unloading potatoes?‑‑‑Yes.
PN826
You're not saying, are you, that I don't get paid overtime for unloading those potatoes?‑‑‑For 12 hours you would get paid what an hour overtime or something, I think it works out to be. I don't know exact I'm not the pay clerk but three hours out of that day they're getting paid single time when they're actually because you are saying they're in travel time.
PN827
Okay. So I don't want to labour this but I think the evidence is getting a little bit confused. I'm not talking about travel time.
PN828
MR NGUYEN: Your Honour, I object. It's haranguing the witness. The witness doesn't have to accept the respondent's definition that travel time is not time worked.
PN829
MR MEAD: Okay.
PN830
MR NGUYEN: That's the issue in dispute.
PN831
MR MEAD: I was going to say - - -
PN832
MR NGUYEN: And what he's asking the witness to agree to is clearly the opposite of what he doesn't agree to, with respect.
*** CLINTON MARK KEOGH XXN MR MEAD
PN833
THE DEPUTY PRESIDENT: Thank you, Mr Nguyen. Look, I can see that there is some confusion here and I think it is just simply the way probably that the different parties are understanding or have it in their head. Maybe if I might have an opportunity, Mr Mead, to see. So, I think, Mr Keogh, what you're saying is when the questions were being asked by Mr Mead, that your understanding is that if they if somebody left at a quarter-past 5 to travel down to Powranna and then start work at, say, 7 o'clock. If we took aside the fact that they had already been working for an hour and a half or an hour and three-quarters let's just park that for a minute - if we were saying that their actual work time started at 7 and they worked through until 6.30 at night and that ended up being 11 hours or something, if you took out the half an hour for lunch, and putting aside the hour and a half that they're going to travel back, under the enterprise agreement from 7 o'clock to eight hours after that, what would they get paid? I'm not talking about travel time at all anywhere. Let's say they sprouted up out of the ground at Powranna and they started working?‑‑‑Yes. If they were on site and they were just working, they would get paid overtime.
PN834
Okay. So they would get eight hours at ordinary time?‑‑‑That's right.
PN835
And then anything over that eight hours they would get paid overtime?‑‑‑Overtime, that's right.
PN836
Right. And then I think what you were saying was but, look, you your understanding is that they clock on at 5.15?‑‑‑Yes.
PN837
And that's when the work day will commences?‑‑‑Starts. Because where this goes a little bit out of shape, I think - and I think this needs to be cleared up somewhere along the line is these blokes cart stuff for the company down there a lot of the time. Tools and stuff that the company actually requires. It's not like you're just going on a drive down somewhere. You're actually taking gear; you're bringing gear back. We were getting a bloke who was getting paid single time and he was bringing all the samples back which actually saved the company a lot of money but they're still saying, well, he should be paid single time. Call it travel time if you want but it's actually doing company work. So it's like saying a truck driver can't get penalty rates because he's travelling. You know, you're carting stuff around for your company. And what defines travel? What defines work?
PN838
I think that clarified that, Mr Mead. I think that got the yes answer.
PN839
MR MEAD: Yes. Thank you. Paragraph 37, Mr Keogh. Do you see there that you're talking about making contact with Shane Littler and Wally Mosko?‑‑‑Yes. Yes.
*** CLINTON MARK KEOGH XXN MR MEAD
PN840
And this is in that period after March 2014. Do you recall approximately when you made that call to Shane Littler? First of all, did you make two separate calls? One to Shane Littler and one to Wally Mosko?‑‑‑I talked to Wally and I actually talked to him verbally. Shane Littler, I called I think I emailed. I think they've got or they should have the emails there that I've sent out. All the emails I sent.
PN841
So there are no emails attached to your statement. You haven't provided that evidence. Are you saying that you didn't call Shane Littler and you sent him an email? I'm just trying to understand what your evidence is?‑‑‑I think I did both. I think I called him and sent him an email.
PN842
Can you tell - - -?‑‑‑But then that's - - -
PN843
Can you tell me when you did that?‑‑‑No, not off the top of my head, no.
PN844
Other than talking to Wally Mosko on site sorry, I withdraw that. When you say you don't recall, are you saying you don't recall in relation to either conversation when they occurred?‑‑‑It was back in those times. I don't know the dates. When this trouble started.
PN845
Okay?‑‑‑This is probably taken a bit out of context too. We're talking about what the process was because the union was trying to understand when because I said, well, I've already seen Shane and I was under the impression that he was going to put it in dispute and all the rest, but apparently he had been having health issues and there was a whole lot of other issues going on.
PN846
Sorry, so what - - -?‑‑‑And a lot of the stuff that I thought was happening actually wasn't happening, yes.
PN847
Okay. Sorry. What part - - -?‑‑‑And that's why I said in 38 I understand that Shane Littler had raised the issue. I thought I understood that he had raised the issue but and was handling the dispute because that's when it was came up that it hadn't actually been put in dispute or anything like that. I thought they would do that.
PN848
Okay. So when you say a lot of this has been taken out of context, what are you talking about now?‑‑‑No, I didn't say a lot. I just said that paragraph there is probably a bit out of context.
*** CLINTON MARK KEOGH XXN MR MEAD
PN849
But what does what do you mean by that? Which paragraph are you referring to? Is it paragraph 37 you're saying it out of context?‑‑‑Well, it's saying I called Shane. Well, I called and emailed him.
PN850
Yes?‑‑‑And I actually verbally talked to Wally saying, "Can you see next meeting and bring this up at the next delegates meeting," and all that kind of thing.
PN851
Okay. Is it correct that other than the two telephone calls and the email that you've referred to in paragraph 37, that you had no other further discussions or meetings in relation to this issue with either Shane or Wally?‑‑‑I did try to ring Shane quite a few times, to no avail. That's why I started talking to Wally.
PN852
Okay?‑‑‑And I don't think that went too far either.
PN853
Sorry, so just in answer to my question, you had no further discussions with Shane or Wally in relation to this issue?‑‑‑I think I sent more emails and I like I just said to you, I talked to Wally about this up to this day. So we have plenty of discussions still, me and Wally. Shane, I'm sure I sent a few more emails. I kept trying to get hold of him but he yes, for whatever reason there was all the other stuff going on with the union.
PN854
So are you saying that did you ever get in contact with Shane Littler or you sent - - -?‑‑‑Yes, I did eventually.
PN855
- - -an email?‑‑‑Yes, I did eventually.
PN856
Okay. And do you know approximately when that was?‑‑‑Not off the top of my head, like, yes.
PN857
Okay. Did you speak to Wally Mosko at all in the course of making this statement? Did you speak to him about the issue in dispute in the course of you making this statement?‑‑‑Not that I recall. As in I probably said that, you know, I had to have an interview and stuff like that, because I see him every day at work.
PN858
Sure?‑‑‑But nothing officially, like, I don't think.
PN859
Do you recall speaking at all in relation to Shane Littler in the course of making this statement?‑‑‑No.
*** CLINTON MARK KEOGH XXN MR MEAD
PN860
Okay?‑‑‑Not at all. Not after the statement was made.
PN861
That's okay. Is it correct that Wally Mosko is still - his role is a delegate, isn't he?‑‑‑Yes.
PN862
Yes. And it's correct that is Wally Mosko responsible for the field services employees?‑‑‑He is now, yes.
PN863
Yes?‑‑‑As far as I've been told. That was second-hand though. I'm not sure.
PN864
Yes. And is it the case that Wally Mosko is still the union delegate for field services, to the best of your knowledge?‑‑‑To the best of my knowledge.
PN865
Okay. Thanks, Mr Keogh. Thanks, your Honour.
PN866
THE DEPUTY PRESIDENT: Thank you very much, Mr Mead. Mr Nguyen.
PN867
MR NGUYEN: No further questions.
PN868
THE DEPUTY PRESIDENT: Thank you very much, Mr Keogh, for your testimony. You're free to go?‑‑‑Thank you.
And inspect some more potatoes?‑‑‑I will. Thank you.
<THE WITNESS WITHDREW [10.17 AM]
PN870
THE DEPUTY PRESIDENT: Ms Kashmirian, are you ready to call Mr O'Keefe?
PN871
MS KASHMIRIAN: I am, your Honour.
THE DEPUTY PRESIDENT: Lovely.
<PHILLIP JOHN O'KEEFE, SWORN [10.17 AM]
EXAMINATION-IN-CHIEF BY MS KASHMIRIAN [10.17 AM]
*** PHILLIP JOHN O'KEEFE XN MS KASHMIRIAN
PN873
MS KASHMIRIAN: Good morning, Mr O'Keefe. Would you please state your full name for the Commissioner?‑‑‑Phillip John O'Keefe.
PN874
And your position?‑‑‑I'm the General Manager for the Agricultural Services in the supply chain division of Simplot.
PN875
Have you prepared a witness statement in these proceedings?‑‑‑I have.
PN876
Do you have a copy of that statement in front of you?‑‑‑I do.
PN877
Can you just check for me if that copy that you have is signed and dated?‑‑‑No. This one is not signed and dated.
PN878
Okay. I might ask the associate to hand you up Mr O'Keefe can you just take some time and have a look at that statement and let the Commission know if that is your statement?‑‑‑Yes, I believe it is.
PN879
And is that version signed and dated?‑‑‑Yes.
PN880
What's the date on that statement?‑‑‑25 August 2015.
PN881
Are there any changes that you wish to make to your statement?‑‑‑No. I'm fine with that.
PN882
Is the information in your statement true and correct to the best of your knowledge and belief?‑‑‑To the best of my knowledge, yes.
PN883
Your Honour, I wish to tender that statement.
THE DEPUTY PRESIDENT: Thank you. That is a witness statement of Phillip John O'Keefe containing four pages and 29 paragraphs, dated 25 August 2015, to be known as exhibit R6.
EXHIBIT #R6 WITNESS STATEMENT OF PHILLIP JOHN O'KEEFE DATED 25/08/2015
PN885
THE DEPUTY PRESIDENT: No questions?
PN886
MS KASHMIRIAN: No.
*** PHILLIP JOHN O'KEEFE XN MS KASHMIRIAN
THE DEPUTY PRESIDENT: No. Thank you.
CROSS-EXAMINATION BY MR NGUYEN [10.20 AM]
PN888
MR NGUYEN: Hello, Mr O'Keefe. Can I take you to paragraph 20 of your statement?‑‑‑Yes.
PN889
It starts with:
PN890
I made the pragmatic decision then that it was more important for the job to get done and for the system to work properly.
PN891
?‑‑‑Yes.
PN892
Did you communicate that decision to anybody?‑‑‑That would have been communicated to Peter, yes.
PN893
That's Peter Hardman?‑‑‑Yes.
PN894
And what did you say to Peter?‑‑‑I just said to Peter that he we would continue doing what we were doing until we could get to the point where we would revisit it again after we had got the things that we needed to do to get to the bottom of it, if you like.
PN895
Okay. So there was no definite timeline when you would revisit the question?‑‑‑I think at the time I said for the next storage season which would have been the next time the situation would have arisen again.
PN896
Right. Peter indicated that it was possible to resolve perhaps in the national collective agreement negotiations. Is that right?‑‑‑I beg your pardon?
PN897
Peter indicated that it was possible that the issue would be resolved in the NCA.
PN898
MS KASHMIRIAN: Objection, your Honour. I don't believe that was Mr Hardman's evidence.
*** PHILLIP JOHN O'KEEFE XXN MR NGUYEN
PN899
MR NGUYEN: He did say that it was possible that would be resolved in the NCA. You can check the transcript but that's what I heard and took a note of. He used the acronym.
PN900
THE DEPUTY PRESIDENT: He did use the acronym, NCA, yes.
PN901
THE WITNESS: I don't recall that.
PN902
MR NGUYEN: It says also in paragraph 20 that the company decided to maintain the status quo. What did you understand the status quo to be?‑‑‑Well, at the time the people that were involved the employees that were being affected said they wouldn't do the work if we didn't keep if we didn't pay, as they had been paid previously. And so I and so the status quo for me was that I needed to get the work done. That we needed to get those people to do the work, and if that's what we needed to do at the time, that that would be what we would we would leave the circumstance as it was and we would revisit it.
PN903
And did you understand how that payment was?‑‑‑Well, Peter had the payment was that people were being paid for all - for all of the time they were working they were being paid as per the award, as if they were working, not travelling. And my understanding is that travelling time is a different rate of pay for the time that people are engaged, than it is for the work time.
PN904
And did you you understood that to be better than the award?‑‑‑Well, no, the we weren't paying by the award. We were there was an error or a lack of understanding of what the payment required was. And so they were being paid by the definition that the person who was entering the information was paying them by. And that was an error in that definition.
PN905
But the payment that they were receiving, the status quo, was better than the award?‑‑‑Well, the payment they were getting was that well, that they were being paid at overtime by the award. The payment they should have been paid was travel time, which was by the award. So you can look at it and say, well, it was better than the award or it wasn't better than the award. It was the award that they were being paid by. Just that there was an error in the definition of what they should have been paid.
*** PHILLIP JOHN O'KEEFE XXN MR NGUYEN
PN906
Okay. But what they were being paid was better than what you thought they should have been paid?‑‑‑Well, when it was raised with me, there was a question about the definition of how they should be paid, and I said they should be paid correctly. Being paid correctly would mean that for the time that they were travelling, they should have been paid travel time which, by the award, is ordinary time. They weren't being paid they were being paid incorrectly because the definition that was used by the person that was doing the work at the time was that they were paying them as if it were overtime work overtime. So it was better money. It wasn't better than the award but it was better the money that they were receiving in their pocket was better but it was inappropriate and it was incorrect.
PN907
So when you came to the view that it was incorrect, did you take into account clause 7.3 of the agreement?‑‑‑No.
PN908
You didn't take that into account?‑‑‑No.
PN909
You didn't consider whether that clause had any operation?‑‑‑No. I didn't believe it was an I believed it was an error and that was and we rectify errors. It would be an error if I was underpaying them and it was an error, I would do the same. I would correct the error and pay them appropriately.
PN910
In coming to the view about whether it was an error, did you so you didn't take into account clause 7.3?‑‑‑No, because it wasn't a negotiated position and not my recollection of 7.3 is that the status quo remains or the over-award payments remain because of customer practice. Is that what you're asking?
PN911
I will read you the clause. It says:
PN912
The company will maintain existing over-award payments and conditions of employment as if they were a term of this agreement, except where expressly stipulated terms of this agreement provide otherwise.
PN913
?‑‑‑Yes. So my interpretation of that is if there's an error, we correct the error.
PN914
When was the first time that you saw clause 7.3?‑‑‑I've been around the award system for quite a long time so but what but when I first saw it, I couldn't answer that. I don't know.
*** PHILLIP JOHN O'KEEFE XXN MR NGUYEN
PN915
Okay. But you said that you didn't consider it at the time?‑‑‑No, because it was an error in payment. So if somebody came to me and said, "Look, you've paid me incorrectly for this week and these are the reasons why," and then I asked them to demonstrate that and they could, then I would correct that error. Just as if this was an error that occurred the week before. Just because it occurred a long time ago, it was still an error. And it was raised with me. When it was raised with me, I said if there's an error we should correct the error.
PN916
That's all right. I understand you said that but what I'm trying to find out is whether you actually read this clause at the time that you were deciding whether or not the error - - -?‑‑‑No, because it was an error. It was a payroll error.
PN917
That's right. So you didn't read the clause?‑‑‑No. I didn't consider it. I didn't go to the NCA and read whether or not that clause applied because it was an error of payment.
PN918
Did you communicate to any employees that you were going to revisit the decision?‑‑‑I would have spoken to Peter and said we would have been doing that. Now, whether he communicated that I didn't communicate that to any of the people affected by it.
PN919
You didn't communicate that to anybody. Can I take you to paragraph 25?‑‑‑Yes.
PN920
It says, "During negotiations" the paragraph that begins "During negotiations" what do you see as the connection between the Harvester employees' log of claims to these proceedings?‑‑‑Well, it's incidental, I suppose.
PN921
And if the union were successful in that claim, would it have any impact on the Ulverstone employees?‑‑‑Well, I'm not in a position to really answer that.
PN922
Are you aware that Harvester employees are paid under a different appendix in the agreement?‑‑‑Yes.
PN923
And you're aware that different terms and conditions apply at Harvester to Ulverstone?‑‑‑Not substantially different, no. There are some differences but there are differences with all of the there's differences between Devonport and Ulverstone. They're site specific and they're categorised as site specific.
PN924
And you were a part of the negotiations for the Harvester specific - - -?‑‑‑I was.
PN925
Can I take you to paragraph 28?‑‑‑Yes.
PN926
Where it says:
PN927
In the minutes of the bargaining meeting dated 28 March the attendees initials have been included. They are as follows.
*** PHILLIP JOHN O'KEEFE XXN MR NGUYEN
PN928
Were there any Ulverstone delegates or AMWU members or employees present at that meeting?‑‑‑From Ulverstone?
PN929
From Ulverstone?‑‑‑No, not that I recall.
PN930
And that would be because the negotiations were about conditions that didn't affect them. It only affected Harvester employees. Is that correct?‑‑‑Site specific are negotiated on each site. So if Ulverstone has a site specific log of claim, then they're negotiated with the site specific. If they're Devonport, they're negotiated with those and those log of claims are site specific. As with Kelso, Bathurst and Harvester's.
PN931
That's right. So the Harvester log of claims would not apply to employees at Ulverstone, would it? I put it this way. It was not your understanding that the claims put to you in the meeting with only Harvester employees would apply to employees at Ulverstone?‑‑‑No. That's my understanding.
PN932
So I take you back to the travel time claim being put by the AMWU on behalf of Harvester employees. That claim was not going to apply to Ulverstone employees, was it?‑‑‑That would be my understanding, yes.
PN933
And so if the union were successful in that meeting in convincing you of the travel time claim for the Harvester employees, it wouldn't have applied to the Ulverstone employees in the present dispute, would it?‑‑‑It yes, I would agree with that, that it wouldn't apply.
PN934
If I take you to paragraph 29 now, you say that:
PN935
During the time of bargaining the employees at Ulverstone were already being paid travel time in accordance with the award.
PN936
Are you aware under the disputes settlement procedure that the company is required to maintain the status quo while the dispute is being resolved?‑‑‑I hadn't been advised of a dispute.
PN937
You hadn't been advised of a dispute?‑‑‑No.
PN938
Can I take you to the attachment in your statement?‑‑‑Yes.
*** PHILLIP JOHN O'KEEFE XXN MR NGUYEN
PN939
Which is PO3. At the end of the email conversation is an email from Shane Littler dated 3 April 2014, and in that email Mr Littler describes the dispute about the travel?‑‑‑Yes. He makes reference to taking away travel and meal allowances.
PN940
And that he understands the payments have been paid for the past 10 years and refers you to clause 7.3?‑‑‑Mm-hm.
PN941
Did you receive that email?‑‑‑Well, I received notification that the email had been sent. I didn't actually receive that email.
PN942
And when did you receive notification that that email had been sent?‑‑‑Well, possibly on the day. I would have discussed it with Sandra and then she has responded.
PN943
And was that during bargaining?‑‑‑Yes, it would have been. We commenced the NCA meetings in and around February 2014.
PN944
And so when he put in that dispute notification, do you think that the status quo clause should have applied at that point?‑‑‑Well - - -
PN945
MR MEAD: Your Honour, that question assumes facts that aren't in evidence. Mr Nguyen has just characterised the email as a dispute notification. That is neither a concession that this witness has made, nor that has been in the proceedings up until this point.
PN946
THE DEPUTY PRESIDENT: Mr Nguyen, I'm interested in this line of questioning. Perhaps if you want to reframe the question.
PN947
MR NGUYEN: Well, I mean, I didn't realise it was in dispute that that constituted a notification that there was a dispute.
PN948
THE DEPUTY PRESIDENT: Well, perhaps you could ask a question about that.
PN949
MR NGUYEN: I will ask the question. Did you understand that this was a notification about a dispute?‑‑‑No.
*** PHILLIP JOHN O'KEEFE XXN MR NGUYEN
PN950
What did you understand it to be?‑‑‑I understood it to be a request from Mr Littler to reinstate payments some of which weren't taken away, so that the email was in error in some of its content anyway. So the meal allowances weren't taken away. And we responded by saying that we didn't consider 7.3 applied because it was an error in payment. So it wasn't a dispute as far as I was concerned. It was a request. We responded to the request and then, as you can see from that point, 10 April, when that was sent, there was no further correspondence with Mr Littler about it.
PN951
There was no further correspondence?‑‑‑Not on this particular matter.
PN952
Do you mean there was no correspondence from you or no correspondence from the company?‑‑‑I well, there was no correspondence from me and there was no correspondence from the company, as far as I was aware. And there was no further correspondence from Mr Littler, as far as I was aware.
PN953
Sir, how do you understand that we are currently in dispute now?‑‑‑That has arisen substantially like, it arose four months ago or whatever it was. Three months ago.
PN954
But it's about the same issue?‑‑‑Well, I don't know what to say to that. I suppose - - -
PN955
Do you agree that it's the same issue?‑‑‑Well, no, it's not actually the same issue either because at the time Mr Littler stated that the company had taken away unilaterally taken away travel and meal allowance. It was clearly an incorrect statement as well.
PN956
Are you saying now that you didn't understand that to mean the travelling time?‑‑‑Well, what I'm saying is that he has made an allegation that we had unilaterally taken away travel and meal allowances, one of which was not correct. The travel allowance, we hadn't they didn't have a travel allowance. They were being paid incorrectly. So that it wasn't an allowance. They were being paid incorrectly. So that the rate that they should have been paid was travel time, not travel allowance.
PN957
Which is the error that you were just describing earlier in your statement today?‑‑‑Well, the error that we had was that we were paying people incorrectly for the time that they were in vehicles travelling. What Mr Littler has asked for he said we've taken away now, it might be his phrasing of calling it travel allowance, but regardless, it wasn't a negotiated position. It was an error and we corrected we were correcting an error.
*** PHILLIP JOHN O'KEEFE XXN MR NGUYEN
PN958
But it is the same issue, is it not?‑‑‑Well - - -
PN959
Well, you're saying I'm sorry, I won't you're saying that it's not the same issue?‑‑‑Well, Mr Littler has written an email. We've responded to the email. We had no further correspondence with Mr Littler about this.
PN960
I just want to get to the issue about what your understanding of the issue that he was raising in that email was?‑‑‑Well, you asked me if he was - - -
PN961
Are you saying that the travel - - -?‑‑‑You asked me if - - -
PN962
Are you saying that the travel allowance issue is different to the travel payment issue in these proceedings today?‑‑‑My understanding was that he was requesting us to reinstate travel the amount of the way we were paying people for travel. That was my understanding. And we said that there was an error in the way those people were paid for their travel and that's what we were correcting, was the error. And then I heard no more about it until there was a dispute raised some three or four months ago.
PN963
But - - -?‑‑‑So in the ensuing period from April 2014 to probably almost May of 2015, a period of 12 months or more there was nothing - - -
PN964
That's right. I'll come back to I'll come back - - -?‑‑‑There was nothing that was said to us.
PN965
I'll come back to your understanding about the timeline and when communications occurred with you, but I just want to get back to the question of that issue in that email about the travel allowances. You say you understood that to be the same or a different issue to what we were discussing - - -?‑‑‑I - I'm presume - my presumption was that it was the same discussion that we had had with our employees. But that was the first time that I'd heard about it from Mr Littler was in April of 2014. We had discussed it at the plant with the employees prior to that and there was some references made that we can't do this because there's some sort of custom and practice.
PN966
So let's go to that meeting then when you spoke to the employees and - - -?‑‑‑Well, I didn't speak to the employees. Peter did.
PN967
- - - and Peter advised you that some of the employees said that you shouldn't do that?‑‑‑That's right.
*** PHILLIP JOHN O'KEEFE XXN MR NGUYEN
PN968
I'll come back then to the issue about the status quo. So when the employees - you advised that the employees said that the company shouldn't be doing that, did you understand that to mean that the status quo should have come into force by virtue of the dispute settlement procedure clause at that point?‑‑‑No, because there wasn't a dispute.
PN969
So when employees say that the company shouldn't be changing an entitlement, that's not a dispute to you?‑‑‑That's an opinion.
PN970
So what would constitute a dispute to you?‑‑‑Well, the normal formal notification that we're in dispute which is the normal practice. The employees - yes, my understanding is that the employees would go to their representatives and I think their representatives would file a dispute. That hadn't been done.
PN971
So is your understanding that employees cannot file a dispute individually under the agreement, they have to go through the union?‑‑‑I don't know whether that's my opinion or not, no.
PN972
THE DEPUTY PRESIDENT: What are you saying, please, Mr O'Keefe in relation to that? How do you understand somebody notifies a dispute?‑‑‑Well, my understanding is that the union will act on behalf of the employee.
PN973
Always?‑‑‑Well, it's I suppose always. Yes. The - I suppose the employees raise the issue with the management. The management makes their determination. If the employees don't like that then they deal - ask their delegates to deal with it. That can be done at a site level, but if it goes to a dispute my understanding is generally it's managed by the union through the dispute processes.
PN974
Can someone take me to the DSP in the agreement?
PN975
MR NGUYEN: The current agreement? The 2011 or the 2014? The one that applied at the time was the 2014 which is clause 46 on page - the 2011 agreement, sorry, was 46 on page 37 - - -
PN976
THE DEPUTY PRESIDENT: Clause 46? And what is it in the 2014?
PN977
MR NGUYEN: The 2014 is - - -
PN978
MR MEAD: 44.
*** PHILLIP JOHN O'KEEFE XXN MR NGUYEN
PN979
MR NGUYEN: 24.
PN980
THE DEPUTY PRESIDENT: Sorry?
PN981
MR MEAD: 44.
PN982
MR NGUYEN: Mr O'Keefe, the employees understood that when they raised the issue about the payment, that the company shouldn't be changing the entitlement, that that is disputing an action of the company?
PN983
MR MEAD: Your Honour, I might rise. Is that a question or a statement that's being put to Mr O'Keefe?
PN984
MR NGUYEN: It was - - -
PN985
MR MEAD: And which employees is Mr Nguyen referring to?
PN986
THE DEPUTY PRESIDENT: Could you clarify please, Mr Nguyen?
PN987
MR NGUYEN: When it was reported to you by Mr Hardman that employees had said that the company shouldn't be able to change the payment, that's understood by the employees to be a dispute. Did you consider that as a possibility at the time?‑‑‑No.
PN988
You didn't consider that as a possibility at the time.
PN989
No further questions, your Honour.
PN990
THE DEPUTY PRESIDENT: Thank you.
Ms Kashmirian?
RE-EXAMINATION BY MS KASHMIRIAN [10.46 AM]
PN992
MS KASHMIRIAN: Thank you, your Honour.
*** PHILLIP JOHN O'KEEFE RXN MS KASHMIRIAN
PN993
Mr O'Keefe, Mr Nguyen took you to paragraph 28 of your witness statement and he drew your attention to the attendees at that meeting date of 28 March 2014. Can you let the Commission know who the AMWU union organiser was in those bargaining meetings?‑‑‑Shane Littler was.
PN994
Okay, and from your evidence my understanding is that these meetings and discussions were in relation to the harvester's employees?‑‑‑Yes.
PN995
Can you let the Commission know who was the AMWU union organiser for the Ulverstone employee bargaining?‑‑‑You mean in this situation?
PN996
Yes?‑‑‑Or at Ulverstone?
PN997
At Ulverstone?‑‑‑I'm not aware. I didn't attend those meetings.
PN998
Mr Nguyen also took you to the discussions that you had with Mr Hardman in relation to the employees who travelled to Powranna not wanting to travel down there if the overtime payment for travelling was taken away. Can you recall when those discussions occurred with Mr Hardman?‑‑‑It's all started at around March 2013.
PN999
Can I get you now to turn to your exhibit PO3?‑‑‑Yes, I'm looking at that.
PN1000
And can you let the Commission know the date of the email that Ms Wilson received from Mr Littler, page 2?‑‑‑The 3rd of April 2014.
PN1001
Okay, and the date that Ms Wilson replied to Mr Littler's?‑‑‑The 10th of April 2014.
PN1002
And can you also let the Commission know after 10 April when were you next made aware that the union had agitated this?
PN1003
THE DEPUTY PRESIDENT: Sorry, we'll have to - we're just having an issue with transcript.
PN1004
MS KASHMIRIAN: Yes.
*** PHILLIP JOHN O'KEEFE RXN MS KASHMIRIAN
PN1005
THE DEPUTY PRESIDENT: I'm sorry, Ms Kashmirian.
PN1006
MS KASHMIRIAN: No, not at all, your Honour.
PN1007
THE DEPUTY PRESIDENT: We'll need an adjournment just for a couple of minutes.
PN1008
MS KASHMIRIAN: Okay.
THE DEPUTY PRESIDENT: Mr O'Keefe, if I could ask you probably just to stay seated because we'll only take two minutes hopefully to fix this. So we'll just adjourn and you'll be back in shortly.
<THE WITNESS WITHDREW [10.48 AM]
SHORT ADJOURNMENT [10.48 AM]
RESUMED [10.54 AM]
PN1010
THE DEPUTY PRESIDENT: Thank you for that little adjournment.
Ms Kashmirian?
<PHILLIP JOHN O'KEEFE, RECALLED ON FORMER OATH [10.54 AM]
RE-EXAMINATION BY MS KASHMIRIAN, CONTINUING [10.54 AM]
PN1012
MS KASHMIRIAN: Thank you, your Honour.
PN1013
Mr O'Keefe, prior to the adjournment I was asking you about a discussion that you had with Mr Hardman in relation to the employees not wanting to travel to and Powranna if they weren't being paid the penalty rates. Can you remember that?‑‑‑I can, yes.
PN1014
Yes, and your evidence was that that discussion occurred around March 2013. Is that correct?‑‑‑It did, yes.
*** PHILLIP JOHN O'KEEFE RXN MS KASHMIRIAN
PN1015
Okay, and so when was your decision to rectify the error, when was that actual decision made?‑‑‑At about that same time, that the conversation was that we've been, you know, sort of advised that there's been an error in the way we pay people travelling to the outside stores. I think in my - Peter had asked me what we - what should we do about it and I said if there was something incorrect we should correct it.
PN1016
That's right, and then Mr Hardman discussed it with employees?‑‑‑Yes, that's right. Like, that's right he went to the employees and said that there'd been an error.
PN1017
Yes?‑‑‑And that we were no longer going to be paying overtime for the travel time because that's not the way the award interprets the travel time.
PN1018
And then Mr Hardman fed back to you the employees - - -
PN1019
MR NGUYEN: Sorry, leading question, your Honour.
PN1020
THE DEPUTY PRESIDENT: Thank you.
PN1021
MS KASHMIRIAN: I'm sorry.
PN1022
THE DEPUTY PRESIDENT: Thank you.
PN1023
MS KASHMIRIAN: I'll rephrase that, your Honour.
PN1024
So after you had those discussions with Mr Hardman what was your understanding in relation to what Mr Hardman then said to the employees?‑‑‑My understanding was that he notified the affected employees. They in turn must have had a discussion with their delegate and then they advised Peter that if they weren't going to get paid the way they were being paid, that they wouldn't travel and do the task, and Peter was concerned that if they weren't going to do that then we'd compromise our storage program.
PN1025
Thank you, and in your statement, Mr O'Keefe, at paragraph 20 - Mr Nguyen took you to this paragraph - you then made the pragmatic decision?‑‑‑Yes, well I mean it was a choice of whether or not we were going to have a disrupted storage program and it wasn't something that I found - I felt was seriously - you know, an issue for us to resolve at that time. We needed to - Donna had made the connection that if there was going to be some sort of dispute about it, even though there hadn't been a notified dispute, if there was going to be some sort of dispute about it that we should have the information that, you know, to hand as to what had occurred, when it had occurred, how it had occurred, you know, and so on.
*** PHILLIP JOHN O'KEEFE RXN MS KASHMIRIAN
PN1026
Mr Hardman(sic), did you feel you had full knowledge of what had caused the error at that time?‑‑‑Not at the time. It was - it - initially it was explained to me that there was - that people were being paid overtime and it was probably as a result of the way - there was a change, and I'm not sure when this exact - this change occurred but there was a change in how people's hours were entered into the system. We got a new system and there was a change in that and it was - the - you know, the work that was required to do that was devolved to several people, team leaders. In our case it was to Kerry Beard and Kerry applied it as he understood it. But it was, you know, an error in his understanding of how people should be paid.
PN1027
And moving to paragraph then 21, Mr Hardman, your evidence in that paragraph is that you would revisit the issue in time for the next storage season, and Mr Nguyen asked you when that was?‑‑‑Yes, and that was in 2014, the season.
PN1028
At the time of that, in March 2014 when that was revisited, did you have any discussions with Mr Hardman in relation to the feedback from the employees?‑‑‑Well, at that time Mr Hardman had stepped aside and so the discussion I had was with Mr Murdoch.
PN1029
Mr O'Keefe, you said that Mr Hardman had stepped aside, what do you mean by that?‑‑‑Well, he'd been - he was assigned to another role. The - a succession role, if you like, that we had a chap who was retiring and Peter was going to take over from that job, that role. So Peter moved into that role and Les moved into his role.
PN1030
Mr O'Keefe, if I can get you to turn now to PO3 again, and I think immediately before the adjournment I'd asked you to let the Commission know the date of the email from Mr Littler to Ms Wilson. Would you mind repeating that?‑‑‑The 3rd of April 1914 - 2014.
PN1031
Okay, and Ms Wilsons reply to Mr Littler?‑‑‑It was on the 10th of April 2014.
PN1032
Your Honour, if I could hand up the dispute resolution procedure to Mr O'Keefe?
PN1033
THE DEPUTY PRESIDENT: Yes.
PN1034
MS KASHMIRIAN: Mr O'Keefe, you've been handed the 2014 agreement. Are you familiar with that dispute resolution procedure?‑‑‑I am familiar with it.
*** PHILLIP JOHN O'KEEFE RXN MS KASHMIRIAN
PN1035
Would you mind reading for the Commission - you'll see it's 44.1, "Procedure" and then underneath there it says "Site‑specific disputes" and then there's a paragraph A. Could you read out paragraph A for me?‑‑‑
PN1036
PN1037
Where the dispute between the parties concerns a matter or matters specific to a particular site the party or parties with the grievance must in the first instance raise the matter with the relevant site management in a timely manner at the company premises at which the employee works or where the dispute arises. If the matter is not resolved at the site level in a timely manner then the matter -
PN1038
Point 1:
PN1039
- must be raised with the relevant national management if applicable or may be referred to Fair Work
PN1040
- FWC or Fair Work Commission:
PN1041
- for conciliation and/or arbitration.
PN1042
MS KASHMIRIAN: So just taking you back to the email attachment, now PO3, the email that is the attachment is dated 10 April 2014. Can you let the Commission know what happened after that date in relation to the union contacting you in relation to this dispute or this matter?‑‑‑Well, nothing happened.
PN1043
And so when was the next time or after the 29th - or 10 April, pardon me, when was the next time you became aware or when did the union contact you in relation to this?‑‑‑Well, I guess it was in March. I'm not sure of the exact date but we - it was around March, April this year.
PN1044
Thank you?‑‑‑Well, sorry - yes, this year. Yes.
PN1045
Okay, and so to your knowledge was the issue raised with national management?‑‑‑No, it was dealt with as a site‑specific issue I suppose to start with and then it was raised to - and it was referred to the Fair Work Commission for conciliation.
*** PHILLIP JOHN O'KEEFE RXN MS KASHMIRIAN
PN1046
And when was that?‑‑‑I've forgotten my dates. So it's September now so that must have been in May, June?
PN1047
Of?‑‑‑This year.
PN1048
Thank you, your Honour.
PN1049
THE DEPUTY PRESIDENT: Thank you.
PN1050
Sorry, Mr Nguyen?
PN1051
MR NGUYEN: Your Honour, I just want to re‑examine on the material that has just come out of the Simplot's re‑examination. I just want to ask - - -
PN1052
THE DEPUTY PRESIDENT: Of the handing up?
PN1053
MR NGUYEN: Sorry?
PN1054
THE DEPUTY PRESIDENT: Of the handing up of the material?
PN1055
MR NGUYEN: No, of the answer that he just gave about the contact with the union.
PN1056
THE DEPUTY PRESIDENT: Is there any objection to that, Ms Kashmirian?
PN1057
MS KASHMIRIAN: There is an objection, your Honour, on the basis that Mr Nguyen took the witness to those discussions in length during his cross‑examination and there would be no reason from the material that I took the witness to that would allow or enliven an ability for Mr Nguyen to re‑cross‑examine.
PN1058
MR NGUYEN: He gave a contradictory answer to what he gave to my question when I asked, and also a contradictory answer to what was given in a previous witness's evidence about the times that employees and the unions have raised the issue with the company.
*** PHILLIP JOHN O'KEEFE RXN MS KASHMIRIAN
PN1059
MS KASHMIRIAN: Again your Honour, that's not (indistinct) that would (indistinct) material witness. There's nothing from what - and perhaps your Honour might be able to say that I'm wrong but from what Mr O'Keefe said in re‑examination that contradicted his evidence in his statement or in the cross‑examination, and if Mr Nguyen has any issues in relation to inconsistencies then, in my submission, that could be dealt with in closing.
PN1060
THE DEPUTY PRESIDENT: Yes, I tend to agree, Mr Nguyen. I think if there is contradictory evidence that was given, refer to it in your closing and we'll deal with it in that way. Thank you.
PN1061
Just before I excuse you, Mr O'Keefe, do you still have that dispute resolution process in front of you?‑‑‑Yes, just - sorry, I just closed it. Yes?
Look, I think I'll just leave it. That's fine. That's fine. All right, thank you for your testimony, Mr O'Keefe, you're free to go.
<THE WITNESS WITHDREW [11.05 AM]
PN1063
THE DEPUTY PRESIDENT: All right, are the parties in a position to enter their closing or - - -
PN1064
MR NGUYEN: I was going to request an adjournment for half an hour just to compile the evidence - - -
PN1065
THE DEPUTY PRESIDENT: I'll give you 20 minutes, Mr Nguyen.
PN1066
MR NGUYEN: Okay, thank you, your Honour.
PN1067
THE DEPUTY PRESIDENT: All right, so we'll be back at 25 past.
SHORT ADJOURNMENT [11.06 AM]
RESUMED [11.33 AM]
PN1068
THE DEPUTY PRESIDENT: Thank you, Mr Nguyen.
PN1069
MR NGUYEN: Thank you, your Honour. I intend to firstly address the evidence and the findings in relation to what occurred first, and then I'll address the interpretation of clause 7.3 in the 2011 agreement and 6.3 in the 2014 agreement.
*** PHILLIP JOHN O'KEEFE RXN MS KASHMIRIAN
PN1070
THE DEPUTY PRESIDENT: Yes.
PN1071
MR NGUYEN: I intend to address some of the matters that I think will be addressed by the respondent as they relate to our submissions, but there will be some matters in the respondent's submissions and I think in the evidence that I won't respond to until after they've given - - -
PN1072
THE DEPUTY PRESIDENT: Till the end reply.
PN1073
MR NGUYEN: That's right.
PN1074
THE DEPUTY PRESIDENT: Yes.
PN1075
MR NGUYEN: Because I'm not sure of the context in which some of the evidence that has been led has relevance. So, firstly in relation to the timeline we know that Mr Hind and others went to Powranna and other offsite storage locations beginning in and around 1999, 2000. I don't think that was in dispute. When Mr Hind was staying at the Cressy pub he was told to put as his starting time the time when he left the pub and the time that he finished when he returned to the pub. Mr Hardman agreed with this statement when it was put to him.
PN1076
Mr Hind was approved to start travelling from home to Powranna and other offsite locations, and at the time of the approval of the decision maker, Mr Hardman, assumed that he would continue to be paid at, I quote "penalty rates" for the time travelled. Mr Hardman made specific mention of the need to clock on if the employees drove past Ulverstone on the way to the offsite storage location and to clock on from home if they didn't drive past Ulverstone. Mr Keogh's evidence supports this general understanding and his experience of the process when he was working out there, and also in his day to day interactions with the employees concerned to the present day.
PN1077
We know that the company then sought to enforce a clause in the Food Award which provides for travel time, overlooking the over-award clause in the agreement some time in 2012. Mr O'Keefe's evidence suggests that he did not consider clause 7.3. Employees disputed the change at the time and the company then made an express decision to reinstate the payment of travel time as hours worked. Mr O'Keefe in re‑examination indicated he was aware at the time of the error, when he made that decision. No communication was made to employees that the company intended to revisit the issue. Mr Hardman in his evidence did not recall advising employees that the company would revisit the issue.
PN1078
Mr Hardman was also equivocal about when he thought the issue might be revisited. He suggested in his evidence that it might be revisited when the - I quote - "NCA was negotiated" or renegotiated. Mr Guard in his evidence equivocated about whether Mr Hardman had informed employees, before conceding that he did not recall him doing so - this is about whether the company would revisit the issue. Mr Guard agreed that he himself never informed employees the issue would be revisited, and Mr O'Keefe confirmed that he did not inform employees that the issue would be revisited. Then the company decided in around April 2014 that it would stop the over-award payments and pay travelling time payments again.
PN1079
THE DEPUTY PRESIDENT: Sorry, what was that date again, Mr Nguyen?
PN1080
MR NGUYEN: In or around April 2014. We have the pay slips from Mr Hind which show when - he has evidence in the pay slips of when it started and also from Mr O'Keefe's evidence that it was some time around March, April 2014; and the email from Mr Littler about the dispute also was in April 2014. So I assume it was around that time. We know that the employees immediately disputed the change. Mr Hind's evidence and Mr Littler's email support this, and we have confirmation that Mr Littler put in the email a dispute in April 2014. The email is attached to Mr O'Keefe's statement, PO3, dated the 3rd. So that dispute arose under the 2011 agreement.
PN1081
The dispute has continued unresolved and was finally referred to the Commission under the current agreement dispute settlement procedure. Mr Hind's evidence was that the company refused to acknowledge the issue was in dispute and Mr O'Keefe's evidence supports that finding, that the company have refused to acknowledge that the issue was in dispute. The union seeks a finding that the over-award payment was being made to employees up until 2012 when it was unilaterally removed. Following that, the Commission should make a finding that the company made an express decision to reinstate the over-award payment in around April 2013, and then the company of course unilaterally made the decision to take the payment away again in 2014.
PN1082
The Commission should also find that no communication was ever made to employees that this was only a temporary arrangement or that the decision would be revisited, and also I believe there's sufficient evidence to suggest that even in the company's mind it was unclear that the decision was only a temporary decision, given the conflicting evidence from Mr Hardman and Mr O'Keefe about how the issue may be resolved, whether through NCA bargaining or in the following season after further investigation. Those two pieces of evidence support the finding that there could not have been communicated to employees that the decision to reinstate the entitlement was temporary.
PN1083
At the point when employees and the union put in the dispute about the 2014 change, the status quo should have been maintained by the company as per clause 46 of the 2011 agreement. However simply because the company refused to maintain the status quo does not mean that their unilateral action should affect the actual entitlement provided to employees by the 2011 agreement. The 2011 agreement provided that the company must maintain over‑award payments and conditions of employment as if they were a term of this agreement, except where expressly stipulated terms of the agreement provide otherwise.
PN1084
So I turn now to the question of what is expressly stipulated terms. Our submission is that - sorry, I'll retract that. My first submission will be that there is no requirement that the decision to make the over‑award payment needs to be authorised in any particular fashion or manner, only that there be an existing over‑award payment or condition. Any other reading or interpretation would be reading words into the agreement that did not exist. This includes the suggestion by the respondent and various Simplot witnesses about the so-called - and I quote "error".
PN1085
Our second submission if the Commission is not minded to make a ruling on whether appropriate authority is required is that the company did make an express decision to reinstate the over‑award condition for travel to offsite storage locations. Mr O'Keefe's evidence suggests that this decision was made with full knowledge, and this is supported by the evidence he gave in re‑examination. At that point there can be no doubt that clause 7.3 comes to life and has effect. It continues to have effect causing the travel time to be considered time worked until the 2011 agreement was replaced by the 2014 agreement.
PN1086
Once the 2014 agreement replaced the 2011 agreement, clause 6.3 then comes to life which is in the same terms as 7.3, and the 2014 agreement then provides for the over‑award entitlement through clause 6.3. The actions of the company to stop payment in 2014 do not interrupt the ongoing existence of the over‑award conditions because clause 6.3 continues to apply, creating the obligation. Further to 6.3 the DSP or the dispute settlement procedure requires the status quo to be maintained without any party being prejudiced as to the final outcome. The words of clause 46.2 of the 2011 agreement say:
PN1087
No party shall be prejudiced as to the final settlements by the continuance of work in accordance with this agreement.
PN1088
Those words have particular force so while the company refused to maintain the status quo it should not be allowed to run the argument that the entitlement is not existing or is not in existence at the present time. That also clause 46.2 evinces an intention that parties to the dispute should not be prejudiced by the ongoing performance of work - in this case the ongoing travel to offsite storage - without having the dispute settled in anyone's favour.
PN1089
If I can put it in another way, the company cannot be allowed to rely on its own action in not paying the entitlement to support a submission that the entitlement does not exist. If that were allowed, the company could defeat any claim for over‑award entitlements under clause 6.3 and 7.3 by simply refusing to comply with the status quo order and refusing to make the payments, which would render clause 7.3 and 6.3 otiose. The third submission is that there are no expressly stipulated terms of the agreement providing otherwise in relation to travel time(sic).
PN1090
THE DEPUTY PRESIDENT: Sorry, say that again Mr Nguyen?
PN1091
MR NGUYEN: There are no expressly stipulated terms of the agreement which provide otherwise in relation to the treatment of travel time. This is in response to the written submissions of the respondent which I understand to be - - -
PN1092
THE DEPUTY PRESIDENT: To be that the award clauses are folded in?
PN1093
MR NGUYEN: Are incorporated.
PN1094
THE DEPUTY PRESIDENT: Yes.
PN1095
MR NGUYEN: And therefore are expressly stipulated. Clause 7.2 provides for a hierarchy between the agreement and the award and is to be read alongside 7.3. Similarly clause 7.1 incorporates particular terms of the award and should be read alongside and considered in interpreting 7.3. Now the clauses of the award that are incorporated by 7.1 cannot be considered expressly stipulated terms of the agreement. The union submits that expressly stipulated terms of the agreement must mean that the terms are written into the agreement and not incorporated by reference.
PN1096
If the Commission were to find that expressly stipulated terms includes the incorporated award terms then there would be no over‑award terms, because all the over‑award conditions would be overridden by the incorporated award term, and so 7.3 would have no use or effect. But clearly clause 7.3 has work to do. The parties have agreed to put it in there and so there must be an opportunity for it to have life. In particular it also has work to do given section 57 which provides that:
PN1097
A modern award does not apply to an employee in relation to particular employment where an enterprise agreement applies to the employee.
PN1098
So therefore the over‑award reference in clause 7.3 must be a reference to being over the award conditions that are incorporated by reference, because it can't be in reference to award terms that are existing outside the agreement because they cannot apply following section 57. A further point supporting this interpretation is that all of the clauses which are not incorporated by 7.1 have an expressly stipulated agreement clause. So there are no other award terms that are not incorporated which may be considered to be above the award. If we look at clause 7.2 it uses the words "provisions of this agreement and the award".
PN1099
We can see that there's no use of "expressly stipulated" in 7.2 however we submit that in the drafting of 7.2 it's clear, because of the juxtaposition of terms of the agreement and terms of the award which must be the terms incorporated that it must be a reference to the express terms in the agreement. Whereas in 7.3 because there's no clear juxtaposition between the clauses of the award and the agreement it's necessary to provide the additional words "expressly stipulated" to make it clear that it means terms that are written into the agreement and not incorporated by reference. So, following a plain and ordinary meaning of "expressly stipulated" that must only be a reference to the terms written in the agreement. In concluding our submissions about clause 7.3 and 6.3 the timeline of events leads to a finding an over‑award condition currently exists because - - -
PN1100
THE DEPUTY PRESIDENT: Could I just get you to slow down, Mr Nguyen, because I'm struggling to keep up?
PN1101
MR NGUYEN: Okay.
PN1102
THE DEPUTY PRESIDENT: I know it's going to be on transcript but, yes, thank you. So plain and ordinary meaning of "expressly stipulated"?
PN1103
MR NGUYEN: The plain and ordinary - "expressly stipulated" must be a reference to the terms that are written into the agreement and not terms that are incorporated by reference requiring referral to an external document.
PN1104
THE DEPUTY PRESIDENT: Yes.
PN1105
MR NGUYEN: In concluding our submissions about clause 7.3 of the 2011 agreement and 6.3 of the 2014 agreement, the timeline of events leads to a finding that an over‑award condition does currently exist because 7.3 in the 2011 agreement supported the over‑award condition being a term of that agreement throughout the operation of the 2011 agreement, and then in the 2014 agreement clause 6.3 supported the over‑award condition being a term of that agreement since it came into operation and replaced the 2011 agreement. The union seeks an order that the company reinstate over‑award conditions, treating travel time to offsite storage sites as time worked for the purposes of overtime, and we also seek the payment of the over‑award condition for the periods which the company refused the payment.
PN1106
If I can make a brief submission about the opinions of witnesses about the so-called error. That is currently the dispute that's before the Commission, and the evidence of opinions from Simplot's witnesses about the quote "error" unquote, should not be given weight. In particular the opinions of Mr O'Keefe about what he considered an error should be seen in light of his understandings about disputes and his erroneous understanding that disputes had to be lodged through the union by employees. In any event the opinions of the witnesses about whether or not it is an error are not opinions of a kind that should be considered by the Commission, whether expert or otherwise, about the interpretation of the agreement, and it's currently the subject of the dispute before the Commission.
PN1107
In relation to our submissions about the Food Award and whether the Food Award should be interpreted to include travelling time for time worked where the employee is required to drive, we seek to rely on our written submissions on that matter, and we just seek an opportunity to respond to Simplot's submissions once they've been made on the issues in evidence, which we haven't addressed and do not have the full context of.
PN1108
THE DEPUTY PRESIDENT: Thank you Mr Nguyen.
PN1109
MR NGUYEN: Thanks, your Honour.
PN1110
MR MEAD: Thank you, your Honour. Just by way of an administrative matter we foreshadowed to your associate that we'd have a bundle of authorities to provide to you.
PN1111
THE DEPUTY PRESIDENT: Yes.
PN1112
MR MEAD: I believe that's been done. There are a couple of other documents that I'll take your Honour to in due course and tender them as I'm going just for convenience. They principally arise out of matters that were either discussed yesterday in the course of an exchange you had with Mr Nguyen, or arise out of submissions that Mr Nguyen has now made that we anticipated would be made, and principally go to the jurisdictional point. So I'll take your Honour to those authorities and documents in due course.
PN1113
We've obviously filed an outline of written submissions in relation to this matter which we continue to rely upon, and for our part we didn't have the opportunity, as Mr Nguyen did, to provide an opening address before commencing our evidentiary case. The points that we would just make that I guess encapsulate and operate as an umbrella over the case that we advance before the Tribunal today are essentially five points, and we say that if you're with us on any one of those five points the AMWU's application cannot possibly succeed.
PN1114
So I'll address those submissions in a more expansive sense in due course, but essentially the five points that we say are relevant to the determination of the dispute, two are jurisdictional, three are merit based, and if we can convince you of the force of any of those arguments we say that we must carry the day. The first proposition that goes to jurisdiction is around the competence of this application, the manner in which it was notified and essentially whether in fact we are before you pursuant to the dispute settlement procedure of the 2011 agreement or the 2014 agreement.
PN1115
Mr Nguyen in his submissions has it seems straddled both. He has jumped between the terms and conditions of the 2011 agreement and then also the 2014 agreement, but what we say is quite clear from the material is that this is an application made under the 2011 agreement and we say that that creates a substantial for the AMWU in prosecuting their case, and there is Full Bench authority that we'll take you to that makes that clear. If Mr Nguyen can convince you that in fact we're here because of the 2014 agreement then we say there's another problem the jurisdiction for the Commission to make the orders that have been sought by the AMWU is a limited jurisdiction.
PN1116
It's a jurisdiction that's limited by the operation of section 739 and specifically and relevant to this matter is 739(5). We say that what you have before you in relation to the terms of the 2014 agreement in essence is a Fair Work instrument as contemplated by that section and that there therefore limitations in relation to the making of orders that are inconsistent with a Fair Work instrument. This submission intersects with the submissions that we make about the appropriate construction of the relevant clauses in dispute in the 2014 agreement.
PN1117
But in essence we say that to the extent that the orders that are sought require you to arrive at a landing that is different to the terms of the modern award as incorporated, specifically clause 26.4, that those orders just aren't capable of being made because 739(5) respectfully stands in your way. Those are the submissions that go to jurisdiction and then there are three merit based submissions. Now it seems that depending on whether we're talking about the 2011 agreement or the 2014 agreement we roughly know what clause we're talking about, which is 6.3 in the present agreement, 7.3 in the replaced agreement, although contextually we also say that 6.1 and 6.2 have some work to do in the way we would interpret the relevant clause.
PN1118
But ultimately the three merit based arguments that we will make are that in order to satisfy the definition of an over‑award payment it needs to be existing and the idea of existing is not, as Mr Nguyen would I guess submit, based on some contingent or imagined sequence of events if certain things had occurred in a particular way, but it's a precise question of fact. A question of fact based on the point at which the employees are asked to provide genuine agreement to the document. The only logical and plausible interpretation of the idea of existing is to look at that point in time and say what exists, and therefore as a consequence what are employees endorsing for the purposes of making a new enterprise agreement that moves forward and regulates their terms and conditions.
PN1119
It's not, we say, anchored to some imagined sequence of events or - and there has been some discussion about this idea of whether a status quo obligation existed or did not. But we say that a simple and plain reading of the concept of existing is strained to its maximum if what we're also talking about is the possibility of some status quo obligation that may or may not exist if the union had or had not instituted a dispute. That just doesn't hang together, we say, if you're applying a practical and ordinary meaning to the terms.
PN1120
Now even if the jurisdictional fact exists that the payment was existing, the fourth point we make is that it needs to have a particular character, and that's a character that can't be affected by mistake. Mr Nguyen's oral submissions were that in essence the character of the payment is irrelevant, that providing you can show that money has changed hands, 6.3 or 7.3 becomes enlivened. With respect, that just makes no sense and it makes no sense because once again if you assume that the people that come to enterprise agreements are of a practical bent, surely they couldn't have come to the bargain saying, "We will codify and make as a term of this agreement circumstances where a payroll officer might go rogue and make a unilateral decision just to start paying money that the agreement doesn't contemplate, or that the payroll officer hasn't been properly authorised to confer to employees."
PN1121
That just makes no sense, and so the character of the payment we say is essential, and then the fifth point that we make is that even if the AMWU can get over hurdles 3 and 4 and prove to you that it exists and prove to you that the character was such that 6.3 or 7.3 is enlivened, there is still the carve out that exists of the remainder of that clause that if there is an expressly stipulated provision of the agreement then that over‑award payment is overridden. I've heard what Mr Nguyen has had to say in relation to our interpretation and it rendering the clause otiose.
PN1122
With respect, that's not right and it's not right because you have evidence before you in the proceedings that there some payments that are made to employees, payments that sit both outside of the agreement and outside of the award that are a function of history, and that's not surprising in an industrial environment similar to Simplot's where you have national agreements that aggregate various site conditions that may have occurred over a not insignificant period of time, and I'll take you to the evidence that was given.
PN1123
There was evidence given. There was evidence given by Jane Homan in relation to questions put to her by Ms Kashmirian where in essence she identified a number of allowances, a dual trade allowance that was paid, a forklift allowance that is paid, and those squarely aren't part of the award or the agreement, but they are entitled to be paid and we say those are specifically the entitlements that 6.3 is intended to pick up. That is the overview of where we intend to take you today and I hope not to spend much more than 30 minutes to 40 minutes on my feet, your Honour.
PN1124
Now that you know where we're headed, I thought I'd just seek to address you in relation to the evidence in a very general sense. There has been considerable evidence put before the Commission over the last day and a bit, but what we would say is that this is a case that is somewhat unique in one perspective because the evidence, whilst it provides some contextual framework, in our submission isn't the main game. The evidence will show that certain triggers are either enlivened or not. The character of certain payments are either satisfied or they're not, but ultimately the evidence provides the backdrop; but then the agreement terms are the agreement terms and it's a matter of determining what exactly is activated and at what point.
PN1125
In terms of the weight of evidence that you've heard, we would say the relevant pieces of evidence that you should be minded to give substantial weight is the fact - and the unequivocal fact - that at the time at which the 2014 agreement was made, the time that it was approved by the Commission and for the 12 months prior to that that terms and conditions for these employees that were doing offsite work were being determined, there was no existing payment of the kind that the AMWU seeks for you now to make an order in respect of. That fact is uncontested. It is absolute and it is important.
PN1126
The second relevant piece of evidence is that we say there is no evidence before you that the removal of a payment was done covertly.
PN1127
THE DEPUTY PRESIDENT: Sorry, I missed that.
PN1128
MR MEAD: Was not done covertly, your Honour. It was done in full knowledge, with full visibility and full communication to employees.
PN1129
THE DEPUTY PRESIDENT: Mr Mead, if I could just get you to address me on the issue - because I think this is important - of the raising of the dispute or the non‑raising of the dispute, if you like. I mean, there was evidence I think led by Mr Hind in relation to him continuing to have discussions with his managers or supervisors in relation to this particular matter.
PN1130
Looking at the dispute resolution procedure, it talks about matters pertaining between the employee and the company, and matters pertaining between the unions covered by this agreement and the company. It goes on to say -
PN1131
will be resolved between the party or parties and their nominated representatives for which the employees can include a nominated union delegate.
PN1132
It indicates that there are a couple of ways in which it's raised and that might be between an employee and the company or the union and the company, so what do you say to, I suppose, the evidence that was put by Mr Hind that he continued to - he didn't use the word "agitate", but continued to talk about that.
PN1133
MR MEAD: I think from an evidentiary perspective we say that was Mr Hind's evidence and I think he had particularly framed it in relation to conversations with Phil Guard.
PN1134
THE DEPUTY PRESIDENT: Yes.
PN1135
MR MEAD: Mr Guard, in his evidence, didn't indicate that beyond the conversation that was had around February 2014 there was much of any discussion with Mr Hind in relation to the issue and that what was communicated in that meeting was, "You'll get this leading hand uplift and that will offset against the travel time." I think there's a challenge there in terms of there are two competing evidentiary positions - Mr Hind's and Mr Guard's - and we say that Mr Guard's evidence wasn't unpicked in any way in relation to that competition.
PN1136
What is challenging perhaps with Mr Hind's position in terms of him saying that he is - "agitated" perhaps puts it too strongly, but - - -
PN1137
THE DEPUTY PRESIDENT: Yes. He didn't say that word.
PN1138
MR MEAD: - - - that he has had concerns, is that if the quantums of money are as he has indicated, 2 to 3 hundred dollars per week, and the offset is as he has indicated which is around $40 per week, it just seems somewhat incongruous that this issue, if it was a burning platform for him, wouldn't have been elevated to the position that we now find ourselves in terms of before yourself, until 12 months later. We say there is perhaps an issue or an inference that can be drawn about the veracity with which Mr Hind may in fact have raised that issue. Now, that's one point about the evidence.
PN1139
I think the other salient point - and it probably touches on the jurisdictional argument, your Honour - is that we're not here to argue about the status quo dispute pursuant to the 2011 agreement. If that were the dispute that was before you, then discussions about whether a dispute was live or not live unquestionably would be relevant for your determination.
PN1140
What we say is the only way that that debate finds its way into this discussion in terms of the dispute that you're currently presiding over, is if the concept of an existing overall payment includes matters that may or may not be in dispute between the parties. There is just no evidence that that was what is intended by the language in that clause. Despite what Mr Nguyen said, the question of whether status quo was in play or not is, we say, neither here nor there and it's somewhat of a distraction in terms of the dispute that you're respectfully being asked to determine.
PN1141
The third point is the point that I think was illuminated by the re‑examination by Ms Kashmirian of Mr O'Keefe. That is, did we actually have a dispute here from April 2014 onwards? What we have quite clearly on 3 April - I think was the date of Mr Littler's correspondence to Sandra Wilson - is the identification of an issue and a contention that there has been a unilateral variation to some conditions. On 10 April, in a timely fashion, Ms Wilson responds and says, in essence, "Mr Littler that's not a correct characterisation. We have a mistake. It has been corrected. We believe that's our right and therefore clause 7.3 doesn't arise."
PN1142
Then all falls silent until - and I believe the date is 27 March 2015, when a form F10 is filed with the Commission and livens this dispute before your Honour. Why does that cause a problem in terms of you making a factual finding that there is a dispute that is on foot throughout that period? Well, we say that having regard to the terms - and we'll deal with the terms of the 2011 agreement - there are a couple of key propositions that need to be anchored for there to be a live dispute and one of those is at 46.1(a), last sentence - - -
PN1143
THE DEPUTY PRESIDENT: Sorry, if I could stop you there, Mr Mead, because my - I'm just wondering whether I've got an incorrect copy. My agreement of 2011 - I think I'm looking at something else. Do you have another copy of the dispute settlement procedure in 2011?
PN1144
MR MEAD: What I might be able to do, your Honour - I intended to tender the form F10, so perhaps if I could approach you and provide you with that. I'll get to that point in my jurisdictional submission, in any event.
PN1145
THE DEPUTY PRESIDENT: Yes. Thank you.
PN1146
MR MEAD: I can provide one for Mr Nguyen, as well.
PN1147
THE DEPUTY PRESIDENT: Thank you.
PN1148
MR MEAD: I think largely it's the disputes clause that Mr O'Keefe read onto the record. There is a telling, and we say important, distinction in terms of 46.4 being different to the terms of 44.4 in the current agreement. For present purposes and for this discussion, your Honour, 46.1(a) is on all fours with 44.1(a). What we say is that what is clear from 46.1(a) is that - this is the last sentence of subparagraph (a) before we go to the Roman numerals - a requirement for resolution at site level in a timely manner; and then failing that, raising the matter with the relevant national management or going to the commission.
PN1149
By no submission could we say the AMWU contend that what they've done is actioned this in a timely manner; that there is no substantial evidence of the AMWU doing anything to respond to Ms Wilson's correspondence. And we say that factually what the commission should find is that there was an issue that was identified, and with Ms Wilson's correspondence it was resolved. And it was resolved because we heard nothing of it for a further 11 months, until a new agreement becomes operative, and then a dispute is filed in relation to the terms of the old agreement.
PN1150
We say that the union can't, respectfully, just sit on their hands in that fashion and then seek to waive the status quo obligations and assert that an active dispute exists, when the facts clearly show that we were entitled to move forward on the basis that the dispute had been resolved, and resolved with correspondence correct in Mr Littler's view of the world in terms of the issue that was at hand.
PN1151
So I think whilst there has been a lot of debate in the evidence and a lot of cross-examination by Mr Nguyen about did we have a dispute, did we not have a dispute, it's very difficult, from our perspective, for us to see how that moves the dispute that you have before you forward.
PN1152
Simply because the facts don't stack up in terms of their actually being a dispute; or even if there was, then what we're doing is we're having a dispute about the 2011 agreement. And on the authority of Stephenson, that I will take your Honour to momentarily, that creates problem for the union. The moment for arguing that a status quo dispute should have been maintained, that moment has passed, and that moment passed when the 2014 agreement commenced operation.
PN1153
Your Honour, if I just might make two or three other evidentiary points, and then I will jump to the jurisdictional submissions we seek to make. The third evidentiary point is that to this point of error - and genuine error - we say that the company's evidence was untouched through the cross-examination that Mr Nguyen applied to it. The fact there was an error, that's what the employees were told, no question; it's what the union was told, no question; it's what was discussed at management level by Mr Hardman, Mr Guard, Mr Beard, Mr O'Keefe, no question.
PN1154
And to Mr Nguyen's submission that in some way the evidence of those individuals should be seen as disingenuous or self-serving because in essence that's the case that we're seeking to run; well, two submissions to that: first of all, the truth is the truth, so witnesses can't be criticised, surely, for giving their honest assessment of the truth; secondly, if Mr Nguyen honestly, in closing submissions, wants to put assertions about witness credibility before you, the rule in Browne v Dunn is that he should have put it to the witnesses.
PN1155
He failed to do it, and now he's taking the opportunity, after the witnesses have ceased to give their evidence, to try and impugn the credibility of our witnesses. And we say that shouldn't be countenanced.
PN1156
The fourth proposition that's important is that we say that there is absolutely no evidence before you that driving was an essential aspect of the duties of Mr Stephen Hind; that we took him at length to the position description; that was explained by Mr Hardman; and in particular, the bullet point that deals with the requirement to have a driver's licence. That was explained, and it was explained in the context of the machinery and apparatus that a process operator is required to utilise.
PN1157
There is a sharp distinction between Clinton Keogh's role as a storage specialist and Mr Hind's. Once again, that is in the evidence before you. There is no debate, or Mr Nguyen did not contest that evidence, so it's quite clear that Mr Keogh's role is different, and we accept that; and therefore different rules apply to him.
PN1158
That piece of evidence really goes to what I expect is going to be a submission from Mr Nguyen, and it has been danced around already, but that there is some work value argument that can be entertained in these proceedings; and that there is value to the driving task, and it's in some way analogous to the performance of work. We say that it just isn't. The fact that the position descriptions may not have been put to Mr Hind doesn't change what his role is.
PN1159
Your Honour, I took him at length to the various moving pieces of his position description. He accepted all of them. So, you know, the fact that he hasn't - although I think he did indicate that he had sighted the position description before, albeit that there was some cross‑examination of our witness as to whether the documents had actually been put to employees at large. But I think Mr Hind at least acknowledged he had seen it, and he also acknowledged that that's his job. And his job doesn't, we say, involve driving in a way that would allow it to attract work value, and therefore be deemed as work.
PN1160
That's the important evidence. I've said that the dispute issue is a bit of a straw man, and we don't say that there's a need for you to worry about that at any great length. I just need to address probably two other things, and that's the leading hand issue. And once again, the evidence on this is danced around a little bit.
PN1161
What seems to be the evidence, as best we can decipher it, is that Mr Hind is paid at the F3 rate. Mr Guard has indicated that the F3 rate is higher than what would otherwise be paid to employees performing the type of work that Mr Hind performs; that would be at F2. That Mr Hind received that as an incentive or sweetener to do the off-site work, and there was some arrangement with Mr Hardman on and around 2004 for that payment.
PN1162
That issue has been engaged with because that's just part of the way in which the evidence unfolded. But once again, you're not being asked to determine what the appropriate classification for Mr Hind is, whether he should receive a leading hand allowance ‑ ‑ ‑
PN1163
THE DEPUTY PRESIDENT: Well, there has been no evidence led in relation to that.
PN1164
MR MEAD: Yes. So it's a side issue, and we say not concerning.
PN1165
THE DEPUTY PRESIDENT: So if I can just check with you, Mr Mead. My understanding is that initially there was a leading hand allowance paid; then there was the application of the F3 classification and the leading hand allowance was removed at that time; and then it appears in 2014 there was an agreement that Mr Hind would accept the payment of the leading hand allowance at that time. Is that the chronology of ‑ ‑ ‑
PN1166
MR MEAD: Yes.
PN1167
THE DEPUTY PRESIDENT: It was paid at that time. There is conflicting evidence in relation to whether it is going to be paid and he would not then lose out much, or if anything; but the chronology is what you understood?
PN1168
MR MEAD: That's as we've distilled the evidence, yes, your Honour.
PN1169
THE DEPUTY PRESIDENT: Okay. Thank you. Mr Nguyen, I will get you to address me on that in your reply as well.
PN1170
MR MEAD: We say whilst there's a lot of evidence about that, it's not squarely before you in terms of the dispute issue. But I take your Honour's point, it's probably important to map out the factual circumstances to the extent that been presented to you.
PN1171
THE DEPUTY PRESIDENT: Yes. There's a reason why you're bringing it up now, isn't there?
PN1172
MR MEAD: Only to say that we don't think we need to talk about it any more. That's probably the extent of it, because I think that the submissions that seem to have been made today by Mr Nguyen and that's in the material is this issue of fairness. We don't say there is any unfairness to what is happening to Mr Hind. The leading hand issue folds into it, but also what is clear from the evidence, we say, is that there is a like-for-like recognition of overtime payments in circumstances where employees are performing work.
PN1173
Your Honour, I was greatly assisted by you in terms of clarifying that issue with Mr Keogh, but in essence there is not an apples and oranges situation going on here. When employees perform work, they receive overtime; when employees' roles require them to drive, and that is an essential part of their role, as in Mr Keogh's, they receive overtime; when it's not an essential part of their role, as it is for Mr Hind, they receive travel time, and that's what the agreement requires. So we just don't think there's any weight to the submission that Mr Hind or any other employee is being hard done by. The agreement provides for what the agreement provides for and all is fair.
PN1174
The only other submission we would seek to make in relation to the evidence and it's a broad submission that perhaps goes to the dispute issue and also goes to the question of whether the AMWU is entitled to rely on the fact that there was a dispute on foot, is that there is evidence that two key union officials were involved in discussions, at least with Mr Keogh. One is Mr Littler, the other Mr Mosko - I understand that Mr Mosko was in the proceedings yesterday taking notes and Mr Muir can correct me if that's not correct.
PN1175
But to the extent of this issue of whether in fact there was a live dispute and the issue had been taken up with the company the fact that neither individual has provided evidence before this tribunal in circumstances where you expect they could have we say allows you to make a Jones v Dunkel inference and that is their evidence would not have assisted the case that the AMWU is seeking to run.
PN1176
There has been really no explanation as to why that issue has been omitted and we say that on any fair reading of the evidence that we put before the tribunal, the AMWU is on notice that there was a contest about whether in fact there was a dispute on foot. We had put out documents before the tribunal and the failure to put any material in reply in that regard, we say, allows you to make a Jones v Dunkel inference.
PN1177
Those are the substantial submissions we would make about the evidence. I now just seek to address you in respect of limb one of the five points that I said I would take you to and that goes to this question of the jurisdiction.
PN1178
Your Honour, I have provided you as a document that I have handed up and I will identify it for the record. What it is is an email correspondence. At the top it is addressed to myself but that's just a function of it being forwarded to me.
PN1179
THE DEPUTY PRESIDENT: Yes.
PN1180
MR MEAD: The essence of the document is essentially the dispute notification that was emailed by Suzie Ungey on the 27 March 2015 to Sandra Wilson at the Fair Work Commission and copied them to Shane Littler and then I have attached the Form F10 and also the DSP process. Now - - -
PN1181
THE DEPUTY PRESIDENT: So this is the document that I was looking at - yes?
PN1182
MR MEAD: It is, your Honour. Yes.
PN1183
THE DEPUTY PRESIDENT: Yes.
PN1184
MR MEAD: And this is the originating application that allows us to now be before you. Three things we say are clear from this. First at paragraph two - "Name the relevant instrument that the dispute is referred to the Commission and pursuant to." It's the AMWU and Simplot National Collective Agreement 2011-2014.
PN1185
Paragraph three, "List the clauses relevant to the dispute." Once again the clause that's being referenced is the clause from the 2011 agreement subclause 7.3.
PN1186
THE DEPUTY PRESIDENT: Sorry? Which bit were you talking about there?
PN1187
MR MEAD: So paragraph three, your Honour, on page two.
PN1188
THE DEPUTY PRESIDENT: I think that's at three? Yes.
PN1189
MR MEAD: And then to put it beyond doubt, "Please annex the dispute resolution process." The process that's being annexed is clause 46 which is the dispute resolution process in the 2011 agreement. And we're certain that this isn't a typo because 46.4 in the 2011 agreement and 44.4 which is the parallel dispute resolution process in the 2014 agreement are different.
PN1190
They are different only minutely but that difference goes to the matter which the rights of representation are expressed. And what 44.4 does is essentially break up 46.4 into two sub-paragraphs and then there's some additional language dealing with union delegates rights. But, you know, whilst the effect of the two provisions may not be substantially different we say that the way they're expressed are. So a submission that says, "Oh, well look there was just an administrative error that - you know - there's a typo at 46. It should actually read 44." That's just not right. It was clear, we say, from the document that an application had been brought to you in relation to the terms of the 2011 agreement.
PN1191
And that's where we have our first problem and your Honour the authorities folder that I have provided to your Associate and that I put Mr Nguyen on notice in relation to addresses the judgment of Stephenson v the Senator, the Hon Eric Abetz (Special Minister of State) [2004] AIRC 1059. It's at tab 11.
PN1192
THE DEPUTY PRESIDENT: Yes.
PN1193
MR MEAD: And this judgment of a Full Bench with SDP Acton presiding of the 28 October 2004, essentially stands for authority that in circumstances where a dispute is notified pursuant to an agreement and that agreement, whilst the dispute is in its currency is superseded, then that extinguishes the jurisdiction of the Commission to hear the dispute. And it extinguishes it as a result - under the legislation as it then was - section 170LW and section 170 LX.
PN1194
The point that we've made in our submissions and that I won't take you to in any detail is that section 73(9) and section 58 of the Fair Work Act do the same work. And the work that they do is essentially that once you have a new enterprise agreement to the extent that its coverage is the same and this instance - the 2011 agreement and 2014 agreement is identical - then one extinguishes the other.
PN1195
And the Full Bench make that point quite clear at paragraph 49. I'll read it for the record. It was essentially this, "A corollary of our conclusions about the effect of 170LW and LX of the Act is that a certified agreement empowering the Commission to settle disputes over the application of the agreement ceases to operate because of the provisions of 170LX then the Commission no longer has jurisdiction to exercise that prior arbitration power in the agreement."
PN1196
So it's game over.
PN1197
And we say that this application has been brought to you under the 2011 agreement. The 2014 agreement takes away the jurisdiction with respect and Stephenson, which has been followed by a number of Full Benches and senior members has swayed.
PN1198
Now, there was a discussion, yesterday, your Honour and I will deal with this now about the similarities between clause 7.3 and 6.3 and that, in some way, that could re-enliven the jurisdiction. There are some authorities that will go to that point and make it clear that that's not the case but even if - sorry, I'll withdraw that. There are some authorities that go to that point even if the clauses were the same and the most notable authority is the judgment of the Full Bench in Pulle v Commonwealth of Australia. That's not in the list of authorities. I'll hand it up in a moment but we'd also say that 6.3 and 7.3 aren't the same. And they aren't the same because the way in which they operate is anchored to a temporal connection but the use of the phrase "existing entitlements" requires you to have regard to a point in time. It's as if 6.3 said, entitlements that applied as at 20 December 2014 which is the date that that agreement was made in favour of the employees, we say that the correct interpretation of the idea of existing entitlements is anchoring to a specific point in time.
PN1199
Equally then, clause 7.3 when it uses the phrase "existing entitlements" needs to take you back to a point in time to say, "Well, what exists at that time and for the purposes of determining if the trigger to the clause operates?" It's not a clause that operates at large to say, "All custom and practice will be maintained as if it were a term in the agreement." Instead the language is precise. It is precise for a purpose and we say that as a result you've got clauses that look the same but are different.
PN1200
So therefore you can't rope in - even if Stephenson and Pulle didn't have sway - you can't rope in the earlier agreement under the auspices of the present agreement and clause 6.3. Your Honour, I mentioned to you the Pulle judgment and just might have Ms Kashmirian provide that to your Honour now.
PN1201
THE DEPUTY PRESIDENT: Thank you.
PN1202
MR MEAD: And once again this is a Full Bench decision on appeal by Mr Pulle against the Commissioner Deakin where she declined to exercise her jurisdiction to resolve dispute. The reason why it's relevant for our purposes is that in this matter there were two agreements. There was an older agreement that was approved in 2005 - 2005-2008 agreement - and then there was a subsequent agreement that applied from 2008 to 2011. That is identified at paragraph 7 of that judgment.
PN1203
Now, in essence, the debate in Pulle was about the payment of an allowance in lieu of superannuation to Mr Pulle and what essentially happened was there was a term in the 2005 agreement at clause 179 that allowed for particular allowances to be paid in extraordinary circumstances. And that's extracted at paragraph 5 of the judgment, your Honour. And then there was also the parallel and identical clause in clause 197 of the new agreement - the 2008 agreement. And that's noted by the Full Bench at paragraph 10.
PN1204
Now, despite those facts, essentially what the Full Bench determined in that matter is that there is still no jurisdiction pursuant to the authority in Stephenson for the Commission to hear the matter under the 2005 agreement terms.
PN1205
So we say that even if you're against us about 6.3 and 7.3 and not being like for like, Pulle creates another problem for the AMWU in terms of how they might ultimately advance any remedy in respect of the 2011 agreement.
PN1206
There are two judgments that I'll just take your Honour to as well and this is perhaps just in advance of arguments, I believe, that will be put against us. The first - Ergon Energy - a Full Bench - I will withdraw that, a decision of Ashford DP, that is also on point and addresses Stephenson.
PN1207
THE DEPUTY PRESIDENT: So what is it? Ergon Energy?
PN1208
MR MEAD: Ergon. Yes, I think the full name of the judgment is Queensland Services, Industrial Union of Employees v Ergon Energy Corporation. And the other is Pulle v Commonwealth of Australia. This matter had a bit of a journey. It found itself back before Lawler VP after the Full Bench declined to grant the appeal in the earlier matter that I told you of. I'll say why that's relevant momentarily.
PN1209
But just dealing with Ergon for the moment. To the extent that the union puts to us that - well, what we actually have here is a dispute under the terms of the 2014 agreement and that the broad concept of matters pertaining to the employment relationship as the 2014 agreement contemplates and this dispute settlement clause allows you to rope in the circumstances of the earlier agreement. There not dissimilar terms in this Ergon energy matter in terms of the dispute settlement clause which is dealt with and extracted at paragraph 19 of the judgment indicates that "The matters that are dealt with in this procedure include all grievances or disputes between an employee and Ergon Energy."
PN1210
So expansive and perhaps even broader than the disputes clause that was presently before you. And, essentially - and this is found in the central aspect of the judgment at paragraph 60 - they say that the fact that you have notified a dispute under the 2011 agreement cannot provide the provisions of the 2005 agreement. Because essentially what was happening in this case was that the union had notified a dispute to essentially maintain a salary maintenance arrangement that existed in the 2005 agreement and applied to a number of its employees.
PN1211
And then the 2005 agreement was replaced by the 2008 agreement and then subsequently by the 2011 agreement. And Deputy President Asbury in considering the various authorities, essentially adopted Stephenson and said, "The fact the dispute procedure in the present case is not limited to matters arising under the 2011 agreement does not empower the Commission to declare that Mr Hawley, who was the individual subject to the dispute in that matter, has a right base in the provisions in the 2005 agreement that ceased to operate in 2008."
PN1212
So we say that if the AMWU moves its argument and seeks now to try to assert that we actually have a dispute under the 2014 agreement they're still stuck because the only dispute that you can resolve in respect of this matter are disputes that apply prospectively from the commencement of this agreement moving forward, not for the defunct agreement that was replaced by the 2014 agreement.
PN1213
The only other point and I only do this for completeness, your Honour, is that there's an obiter comment by her Honour, Deputy President Asbury at paragraph 53. And, essentially, she seeks to map out the principles that apply in respect of these questions of the Commission's jurisdiction.
PN1214
Now, I think that Mr Nguyen might try to find some refuge in the first bullet point of 53 where her Honour says,
PN1215
"Absent the savings provision in either the legislation dealing with an agreement ceasing to operate or in the successor agreement or a provision in relation to the same matter in a successor agreement a right does not survive the cessation of an agreement."
PN1216
And with respect to her Honour, DP Asbury, we think what she says on there, having regard to the totality of this judgment is an obiter comment that was in Stephenson. It's an obiter comment that's at paragraph 53 of that judgment. Now, we say that that's not a principle that was established by the Full Bench. They make that comment as an aside in terms of having made their primary judgment they make another general observation about in the Stephenson matter, there not being equivalent clauses in the old agreement and the new agreement but they don't go so far as to say, "And had that occurred we would have therefore had jurisdiction."
PN1217
So we just say there's not a lot to be learned from those principles in the Asbury judgment, beyond what we've taken you to, but I do mention that for completeness and for the benefit of Mr Nguyen having argument in that judgment.
PN1218
And then the final judgment on this question of jurisdiction that we will address you on is the third Pulle judgment. And we do this merely by way of contrast and to reinforce the proposition that we've already asserted that 6.3 and 7.3 are different. What essentially happened in the Pulle matter - or Pulle, version three - is that it came back before Vice President Lawler under the 2008 agreement - so the new agreement - and under the equivalent clause, clause 197.
PN1219
And, essentially, what the Vice President found in that matter was that the broad language of 197 didn't indicate that there was any confine to the remedy that he was able to award in relation to interpreting that aspect of the agreement.
PN1220
So he found that he was able to go back and have a look at the 2005 and 2008 agreements for the purpose of issuing a remedy under the new agreement. The reason why that point is relevant is we have the direct counterpoint here we say, that we don't have the broad language of the kind that Vice President Lawler contemplated in Pulle. Instead, we had a very narrow language. We had a very narrow language which talks about existing entitlements and existing entitlements as we have already said that anchors to a particular point in time and therefore, we say, doesn't allow you to go back in time.
PN1221
Those are the submissions that we make about getting it through the door in relation to the Commission's jurisdiction. If the AMWU is able to convince you that they can get through the door, then there's a question about the orders that they seek and whether, in fact, the orders of (indistinct) had been issued. And there's no draft orders that have been sought by the AMWU but they indicate the orders that they seek at paragraphs 5, 6 and 7 of their outline of submissions. And essentially it seems that paragraph 5, what they're seeking is a reapplication of the 2011 agreement. Paragraph 6 for that then to apply retrospectively as a correction in underpayment for the period the employees weren't paid in that manner. And then, thirdly, a status quo order.
PN1222
We don't understand why a status quo order is necessarily sought. It would seem that it's an interlocutory step along the course of resolving a dispute so to the extent that they're now discharging that function. How we find our way to status quo is difficult to grapple with. But that's not the jurisdictional problem. The jurisdictional problem is the one I have already alluded you to which is that 7395 says that the only orders that you can respectfully make are the ones that are consistent, or rather not inconsistent with the terms of a Fair Work instrument that applies to the employees. And that is the 2014 agreement.
PN1223
So there are two blockers then to the orders that they seek we say. The first is that if you agree us on the proposition that there was no existing entitlement as a factual contention then - - -
PN1224
THE DEPUTY PRESIDENT: And this only comes into play if that is the case?
PN1225
MR MEAD: Yes.
PN1226
THE DEPUTY PRESIDENT: Yes.
PN1227
MR MEAD: And then all - actually perhaps I don't understand precisely.
PN1228
THE DEPUTY PRESIDENT: Well, if what you're suggesting is that because if there is an over-award entitlement that is established.
PN1229
MR MEAD: Yes.
PN1230
THE DEPUTY PRESIDENT: Whether that be the case or not, but if that was established then clause 7.3 would be that it formed part of the agreement. Is that not what the clause says?
PN1231
MR MEAD: So if there's an overall entitlement that is established that is the right of character in all those other caveats.
PN1232
THE DEPUTY PRESIDENT: Yes. Yes.
PN1233
MR MEAD: And there is not another expressly stipulated term that covers that area then you're right.
PN1234
THE DEPUTY PRESIDENT: That's right. So then we're back to expressly stipulated.
PN1235
MR MEAD: Yes. Well, two issues. Is it existing? And then is it expressly stipulated.
PN1236
THE DEPUTY PRESIDENT: Yes. Yes.
PN1237
MR MEAD: And if you agree with us that it's expressly stipulated then, similarly, the orders can't be made (indistinct).
PN1238
THE DEPUTY PRESIDENT: Yes.
PN1239
MR MEAD: The other general problem with the orders that the union have sought and we put this before you in a cautious sense is that we say there's not evidentiary basis for you to make the orders that the union seeks at large, that if you look at the evidence that's before you, we have evidence from Mr Steven Hind and we accept that that evidence to the extent that it remains intact identifies his circumstances.
PN1240
We say that the evidence from Clint Keogh is challenging for a number of reasons. First of all it seems that on a fair reading and the transcript will bear this out of his cross-examination he was from equivocal in terms of particular aspects of his evidence, the scrutiny and due diligence that he applied to his statement and whether, in fact, because there were some shifting sands in the course of cross-examination in terms of what was fact and fiction.
PN1241
So that is a challenge in and of itself. The other challenging element is that we say to the extent that his evidence addresses the circumstances of loading and unloading the proposition was put to him that that is evidence that relates to the period prior to him becoming a storage specialist - so, pre-2005 - so and we believe that he conceded that that was in a large part the evidence that he was providing.
PN1242
So then for the purposes of the dispute that's before you to the extent that he provides any general evidence, at large, it is limited by the fact that it's 10 years old. So to make the orders that the union are seeking we just don't believe that they have mounted the evidentiary case that they needed to get over that hurdle.
PN1243
I will just move now very quickly hopefully to the merit based arguments because we have had some discussion about those aspects already and I won't labour those points. An existing overall payment, we say, has to have three elements - better than the award - obviously; the requisite character and the temporal anchor point. And then even if all those three characteristics are met you've got the category of expressly stipulated.
PN1244
Now, the submissions that we make about mistake - we say that they're assisted by - you know - those well-known authorities like Cucks and CSR and AMCOR and the CFMEU that says that the industrial parties have come to a (indistinct) and are practically. And we say that in respect of that question of practicality a mistake in payment couldn't have been intended to enshrined as a term of the agreement.
PN1245
A payment that exceeds the authority of the individual could not be intended to be the type of payment that is then enshrined by clause 6.3 or 7.3 of the agreement. And in respect of the evidence of Mr Harding, of Mr Beard, there is no question that they said they did not have the authority to deviate from the terms of the award of the agreement. That is their deal. That is their employment obligation. I don't say this with any sense of criticism on any of those individuals but, clearly, to the extent that they have provided something better than the agreement provided for, or the award provides for they exceeded their delegated authority and we say that that type of mistake just can't be caught by 6.3.
PN1246
You've got, since the early '90s in this country, the High Court authority that at a contractual this is the date that Securities and CBA proposition that we referred to in our submissions. It's in your bundle of authorities but other than the point that we make that in this country at common law it's been established that mistake of fact or mistake of law, irrespective of the character is recoverable against the party who is the beneficiary of the mistake. We say that that supports - what is a common-sense approach - to the interpretation of 6.3.
PN1247
The other thing that we say it supports this construction is the judgment that we have referred to which is the AMWU v AMCOR (No 5), a packaging judgment. It's at tab eight of the bundle of authorities, your Honour. A decision of Merrigan C. And look, the synergies between the matter before you and this matter are significant. That in the AMCOR (No 5), a packaging matter, we had a term and an agreement that talk about the preservation of practices and site agreements and practices which would continue pursuant as a term of the agreement. That there was a clear error when employees started working particular overtime arrangements such that they were paid something greater than what they were entitled to. The company became aware of the error, notified the union of the error and sought to correct the practice. And then the union properly filed a dispute saying, "Well, no. The practice is the practice. The error is irrelevant."
PN1248
And what Merrigan C identified at paragraph three we say that it's available. You make the same conclusion. It's the idea of a practice in accordance with the agreement must be able to be distinguished from errors in award interpretation, applied either by supervisors or the pay office. Such errors are not deliberate actions to create a practice taken after due consideration or by consent but they are in fact a mistaken interpretation.
PN1249
And, therefore, AMCOR in that case weren't thwarted in being able to change and correct their error. We say that the circumstances here on all fours and a similar approach can be adopted.
PN1250
I have already addressed your Honour in relation to the question of existing. I don't propose to do that any further unless there were questions specifically relating to that proposition.
PN1251
THE DEPUTY PRESIDENT: Well, I do have one question probably.
PN1252
MR MEAD: Yes.
PN1253
THE DEPUTY PRESIDENT: That I'd like you to address me on. Mr Nguyen put forward the proposition that if it was determined that the payment was a mistake that at the time that Mr O'Keefe then decided that the payment would be reinstated in 2013, that I think was indicated was that that gave it a different flavour.
PN1254
MR MEAD: Yes.
PN1255
THE DEPUTY PRESIDENT: So what do you say to that?
PN1256
MR MEAD: Yes, so to the evidence we would say that Mr O'Keefe indicated that he needed to get to the bottom of things and then you would at a final determination. And that he perhaps anticipated there would be some bloodshed in relation to this issue. So he wanted to step away, understand the root cause of the error and then decide on what the appropriate determination was. So we say that it's not a case from an evidentiary perspective where he's affirmed the mistake and moved forward.
PN1257
But if you're against us on that, we still say that - and it really comes down to the way in which enterprise agreements are created
- and your Honour I'm not telling you anything that you don't obviously already know but
- - -
PN1258
THE DEPUTY PRESIDENT: I've done a few in my time.
PN1259
MR MEAD: Yes. The structure of the Act is that essentially at the point at which they are made and then proved they become a locked box of conditions. Subject to applications to vary that might happen in due course.
PN1260
So a decision by Mr O'Keefe or anyone else to affirm a particular condition if, in fact, that's what the evidence ultimately concludes, if that occurs during the currency of the agreement, we say that it wouldn't trigger 7.3 at the point which it occurred. Because 7.3 requires you to think about what happened before the agreement was made or was happening the day before the agreement was made, not what happens during the life of the agreement.
PN1261
It may create some contractual right that the employees have that could be pled in a court of competent jurisdiction but once again that's not what we're talking about here. On a strict interpretation of the agreement we say that the affirmation of a right in the currency of an agreement doesn't trigger the concept of an existing overall payment at 7.3 or 6.3 - would have regard to it. Does that answer your question?
PN1262
THE DEPUTY PRESIDENT: Yes, thank you.
PN1263
MR MEAD: The expressly stipulated terms of the agreement point that Mr Nguyen addressed you on. I have already alluded to what we say the work is to do of that provision. And we're live to the criticism or live to the concern that quite clearly 6.3 needs to have some work to do. And that if there were no outside agreement or outside award obligations under the enterprise agreement then that would potentially cause a challenge to an interpretation that we advance. But the evidence before you is that there are and we say that a site or a National agreement as old as this one that harks back to 2000 and perhaps even before that but 2000 is the earliest version I could find. It's very common industrially for there to be historical conditions that have satisfied - - -
PN1264
THE DEPUTY PRESIDENT: Site deals.
PN1265
MR MEAD: Exactly.
PN1266
THE DEPUTY PRESIDENT: Yes.
PN1267
MR MEAD: And that sit different to the site negotiator conditions but, instead, people hold them near and dear to their hearts and therefore they need to be preserved. What 6.3 does we say is tell you that the bargain is the bargain if the award or the agreement deal with the issues. 6.2 is important in relation to that interpretation or 7.2 depending on which agreement you're looking at. They both are the same thing.
PN1268
And this is an item that respectfully was glossed over by Mr Nguyen in his submissions. So 7.2, in terms of the hierarchy of interaction of instruments starts with the proposition that to the extent that there's inconsistency between the agreement and the award then the provisions of the agreement must apply. That's not a remarkable provision.
PN1269
It then goes on to say, "Where this agreement is signed then the relevant award must apply." We say no stronger a statement about what marks the space in relation to this issue could be made. The agreement is silent. The award must apply.
PN1270
The fact that Simplot and the union have applied what is a very common drafting convention to incorporate award terms is unremarkable. It's also unremarkable when you consider that there are two underpinning awards that are also rolled into this document as well. So the agreement doesn't, we say, contemplate two classes of award terms.
PN1271
Sorry - the agreement doesn't contemplate two classes of agreement terms. The agreement terms are the agreement terms and they apply with equal force to all employees. The fact that we have got two documents incorporated by reference and at 6.1 the parties will also turn their minds specifically to what modelling we say reinforces this idea that expressly stipulated simply means the deal.
PN1272
And if it didn't say "expressly stipulated" perhaps 6.3 would be somewhat confusing because it talks in the first proposition about overall payments applying as if they were terms of the agreement and then just to go on and use - except where the terms of this agreement provide otherwise becomes somewhat circular.
PN1273
So there's a logic in it but the logic in it is not the logic that Mr Nguyen says that means that deal is out. Instead it just means that both bundle of terms are in it would seem.
PN1274
Finally, just in respect of the interpretation of the award provision, we have addressed it in our submissions. Mr Nguyen hasn't advanced any further arguments beyond his written material and we don't propose to, save and except for perhaps three propositions, the first is that in respect of 26.4(a) of the award.
PN1275
THE DEPUTY PRESIDENT: Of the award, yes.
PN1276
MR MEAD: And specifically (a)(ii). There was some contention in Mr Nguyen's submissions about the idea that fares had not been paid and should be paid if they wanted (indistinct). We didn't address this squarely but fares aren't payable in these circumstances based on the evidence you have before you. Fares are payable under 26.4(a)(ii) where employees use their own means of transport. In all circumstances, except for the most limited, I think that Mr Hind indicated in 2002 Simplot has given employees doing this driving a car. So fares is not triggered as a result of the absence of there not being another mode of transport.
PN1277
And in respect of 26.4(b) and whether that is triggered as an obligation. Once again, we say 26.4(a) is the clause that is relevant because 26.4(b)is triggered in circumstances where the employee is required to stay away from home, in essence. Once again, the evidence indicates that the option to stay at the Cressy Pub for Mr Hind was just that - an option. An option that he exercised judgment on in relation to whether he would stay or not.
PN1278
So, all the obligations that an employer might otherwise be burdened with in 26.4(b) are triggered once again because the evidence doesn't require it. And similarly with 26.4(c). There's no assertion that he was transferred permanently offsite in such a way that required him to maintain or cease to maintain his original place of residence. So, therefore, at 26.4 (b) and (c) just don't have any work to do here.
PN1279
Your Honour, I apologise that I have spoken for longer than I originally anticipated. As we said at the outset there are multiple problems with this application both on a jurisdictional perspective and also from a merit perspective. We don't need you to agree with everything we put. But if we can get you over the line on at least one of the propositions we say that we must carry the day. Unless you have any questions those are submissions.
PN1280
THE DEPUTY PRESIDENT: Thank you, Mr Mead.
PN1281
MR MEAD: Thank you. May it please the Commission.
PN1282
THE DEPUTY PRESIDENT: Yes. Mr Nguyen?
PN1283
MR NGUYEN: I will address the issues, as they arose, as I was taking notes. In terms of the status quo obligation our submission is that it's not a requirement that there be any status quo order or that the status quo obligation is considered. It's only that obligation arises by virtue of the 2011 agreement and then the timeline of events meant that that obligation continued through to the new agreement.
PN1284
In terms of the character of the witnesses I just clarify that I was only saying that their opinion in terms of there being an error is an opinion about the interpretation of the agreement and they're not suitably qualified expert witness whose opinion can be taken into account as evidence in these proceedings.
PN1285
In relation to the submission that there are particular payments that are not provided for which could be considered over-award, I think that goes against a plain understanding of over-award. If something's over-award there's got to be an award term which it's over. If it sits totally outside of the award and totally outside of the agreement then it would be hard to understand how it could be considered over-award because it's an entitlement that is existing totally outside of either the award or the agreement.
PN1286
So just in relation to the assertion that there's no existing payment I think your Honour understands where the two parties are coming from in terms of whether there's - is you know - actually payments being paid at the time versus the obligation of whether a payment should be being made at that time.
PN1287
THE DEPUTY PRESIDENT: Yes, Mr Nguyen. Yes. That's clear to me.
PN1288
MR NGUYEN: Yes. In relation to the assertion that Mr Mead went through, I think, in response to a question from yourself that Mr Guard's evidence wasn't unpicked about whether or not the issue had been raised with him and his evidence was that he had no discussions about there being a dispute. We say on the balance of the evidence Mr O'Keefe's evidence also has to be taken into account in deciding whether or not there were ongoing actions on the part of the employees, in particular looking at the veracity of Mr Hind's statement that he continually went to Mr Guard, who then went to Ms Wilson and who then responded to him that the union hadn't put it in dispute.
PN1289
I think we also have to look at Mr O'Keefe's evidence which corroborates what Mr Hind was saying in that the company's position during all this time when employees were wanting to continue to move the issue and move the dispute along the company's position was, "Well, there was actually no dispute on foot." And so that was Mr O'Keefe's understanding in his evidence which would support what Mr Hind was saying that despite his agitations the company's position was basically a brick wall to say, "Well, there's no dispute on foot because the union hasn't said anything further to us."
PN1290
THE DEPUTY PRESIDENT: What do you say to the proposition, Mr Nguyen, that the only evidence in relation to the emails - to the agitation of this dispute was the exchange of the 3 and 10 April emails and nothing following that?
PN1291
MR NGUYEN: Well, I'd rely on Mr Hind's statement that he continually pressed the issue as often as he could and the response from the company was that, "Well, the issue is not in dispute. You need to speak to the union to put it back in dispute."
PN1292
In terms of what happened to Mr Littler I mean Mr Keogh acknowledged in his statement and we haven't raised this before but Mr Keogh did say that Mr Littler has been ill and there's been issues with Mr Littler. To be honest with your Honour the first time that I saw the Form 10 was when Mr Mead gave it to me presently today and we haven't had access to that because Mr Littler has been ill and sort of out of action for a period of time.
PN1293
And I'll just address that point now in terms of the Form 10. There is Full Bench authority that an applicant is not bound by the terms that it puts in a form in relation to the matters - in terms of the substantive submissions that it makes in a proceedings. I don't have the citation of that for you today but that's my general understanding a party is not bound by what they put in an application form which is a form for the purpose of initiating a process and my first submission to you when you asked me the question was that I understood the dispute was when under the 24/10 agreement dispute settlement procedure.
PN1294
There has been some submissions made about Mr Keogh's role being different. I just draw the Commission's attention to Mr Keogh's evidence that he has been involved with the employers who are affected by this. And the union only relies on his evidence in so much as it supports the timeline of events and supports what Mr Hind has said in his statement about the way in which the payment for travelling used to be paid and how it changed. But I don't think that that was actually issued because the company's witnesses also support the timeline of events in terms of what happened.
PN1295
In relation to the position descriptions I think Mr Mead said that he put to Mr Hind and that he had seen the position description. I just draw your Honour's attention to the fact that only the first position description was shown to Mr Hind and not the second one and in terms of the second one Mr Hardman's evidence was that that was never provided to Mr Hind that he was aware of and that he thought that Mr Guard had provided it. And when Mr Guard was asked about it he indicated that he'd not provided that to any employees which is the second one referred to as PH2.
PN1296
But I think I agreed with Mr Mead in terms of the relevance of the leading hand allowance and the F3. It appears from the union's perspective that Mr Hind was actually due a leading hand allowance for the entire period because of his responsibilities in managing other employees and casuals on site and he hasn't been paid. That's not the subject of this dispute but it is an issue that we have now sort of uncovered. And all we would say that the apparent deal that was struck cannot be a deal because all that was offered to him was an entitlement that he was due anyway in return for not proceeding - apparently not proceeding with the dispute.
PN1297
But I just note as well that when that was put to Mr Hind he said, "No." He didn't agree with it after when he found out what the amount actually results in, in terms of a significant loss to his payment and that he continued to press the dispute with Simplot managers who then rebuffed him with - you know - the union hasn't put it in dispute.
PN1298
I think I've explained the circumstances in terms of why Mr Littler has provided no evidence. But I just note in terms of Jones v Dunkel that the only inference is that it wouldn't have helped the union but not that an adverse inference can be drawn.
PN1299
The next submission that was made by Mr Mead relates to the dispute arising under clause 46 in the Form 10 and I think I've just addressed that earlier. Essentially, the parties are not bound by what they put in an application form and only the submissions on hearing should be taken.
PN1300
In relation to Pulle and the Commonwealth acting on behalf of the Department of Parliamentary Services. I haven't had an opportunity to look closely at that decision which I was only just handed earlier.
PN1301
THE DEPUTY PRESIDENT: Yes.
PN1302
MR NGUYEN: If possible we'd seek an opportunity to make this further written submission about those particular cases that we were handed. But in a general sense we would say that the dispute settlement procedure clause in the Simplot agreement is a very broad clause providing for private arbitration about matters pertaining to the employment relationship between the employee and the company. And that is a very broad scope in terms of providing for jurisdiction to the Commission in terms of what types of matters can come before it and also the types of orders that it can make in relation to the disputes.
PN1303
In relation to the submission that any orders cannot be inconsistent with the Fair Work instrument our argument is that the orders we are seeking are ensuring that clause 6.3 under the current agreement is being met. And so a decision which goes against what we are seeking would be inconsistent with the Fair Work instrument being the 2014 agreement which contains clause 6.3.
PN1304
THE DEPUTY PRESIDENT: Sorry, could you say that again, Mr Nguyen?
PN1305
MR NGUYEN: So I think Mr Mead's argument is that it can't be inconsistent with the Food Award, which is a Fair Work instrument but the union's argument is that it can't be inconsistent with the 2014 agreement which is also a Fair Work instrument and we rely predominantly on clause 6.3 of the current agreement to support the entitlement which is the basis of the orders that we're seeking.
PN1306
There was a submission made that there's no basis for the orders to be made at large. I think that's also where Mr Keogh's evidence comes into play and also the company's evidence in terms of establishing the general, I guess, circumstances in which payments were or were not made to employees who travelled to these off-site storage locations.
PN1307
There was no evidence led that some employees at off-site storage locations are made the payment or are not made the payment. I think it's accepted by the parties that all off-site storage personnel are not paid currently the travelling time as time worked. And also that the decisions made about those payments were made and - at large affecting all the employees.
PN1308
In relation to the submissions about whether the payments exceeded the authority if the Commission supports the argument that the party or the employee needed to have authority to make the payment our submission is that Mr O'Keefe did have that authority and did make the express decision in 2013.
PN1309
Mr Mead then made the submission that Mr O'Keefe said he needed to get to the bottom of things and decide on the appropriate way forward. The evidence that Mr O'Keefe gave in response to re-examination indicated that he did understand what the issue was at the time that he made that decision and as he described it there was an error and he did have the full set of circumstances at that time when he made that decision.
PN1310
Mr Mead then made a further argument that entitlements become a locked box at the time that the agreement is made. That's not supported by clauses in the agreement, including the clauses incorporating award terms which change, depending on decisions of the Commission. In particular decisions to change particular award terms from time to time whether by application from parties or, for example, through the four-yearly process or the 2012 review process.
PN1311
And past practice indicates that the company has honoured changes to the award clauses whether it's to allowances which rise based on the annual wage review or whether it's a change to the incorporated consultation clause, which included additional requirements which was not inconsistent with the consultation clause in the agreement.
PN1312
I just want to check that I have responded to all the issues.
PN1313
THE DEPUTY PRESIDENT: Yes.
PN1314
MR NGUYEN: So the first jurisdictional issue is about the competence of the application. I have addressed that.
PN1315
THE DEPUTY PRESIDENT: Yes.
PN1316
MR NGUYEN: The second issue in relation to jurisdiction to make the orders not being contradictory to a Fair Work instrument I have addressed that. There were also three merit arguments. The first is about satisfying existing - your Honour understands where the parties sit on that issue - and, secondly, the need for a decision not to be affected by mistake. The union has made submissions made about the two particular periods in time that's before the 2013 decision to reinstate and then after that decision.
PN1317
And then also the argument that over-award entitlements include awards that have no relationship at all to the award or the agreement and sit totally outside. Our response to that is the use of the word over-award indicates that there must be a relationship to the award terms.
PN1318
That concludes response submissions. If we could be provided with perhaps a week to provide any further submissions about the three cases which were provided today.
PN1319
THE DEPUTY PRESIDENT: Yes, thank you. Mr Mead, any objection to that?
PN1320
MR MEAD: We would object and it's not to be petty but it's just that we went away and looked at those decisions in response to the discussions and submissions that Mr Nguyen put to you yesterday. The cases that we put before you aren't submissions that we're mounting in our own respect but mounting in response to submissions that were made by Mr Nguyen.
PN1321
That is simply, he didn't have the authorities or hadn't done the analysis. We say that the opportunity was today to present the cases. We were prepared for the arguments that we thought he might put and responded with authorities appropriately. So we would object to him being given a further opportunity to provide further material before the Commission. If for no other reason then that's not the normal report in the course of things and also to the extent that he puts material that would require us to then reply for some reason. It puts our member at expense in circumstances where we say that that would be unfair.
PN1322
And the only other thing and perhaps if your Honour wants to rule on that there are just three points that Mr Nguyen raised. I don't want to get into a debate with him on a couple of points but the locked box issue is an issue that he did raise and the incorporation of the award issue. Those two submissions don't reconcile and that's because section 257 of the Fair Work allows the award to incorporate it either at a fixed point or from time to time.
PN1323
So the reason why Simplot's practice has been as it is is because the Fair Work Act provides for that. And on the proposition that there is a locked box we think that there's a Full Bench authority in CFMEU v CSR Viridian. The point of that being that other than statutory instruments, like awards, if the agreement contemplates the ability to vary the terms of the agreement over the course of its life it needs to be done in accordance with the variation provisions of the Fair Work Act.
PN1324
To the point that you can create an existing entitlement through the life of the agreement and then have it as a term of the agreement pursuant to 6.3 we would say that's an impermissible variation on the authority of Viridian. That's the only point that we'd seek to make, other than the objection to further submissions.
PN1325
THE DEPUTY PRESIDENT: Okay. I'm going to allow Mr Nguyen an opportunity to make some further short submissions in relation to the two Pulle decisions and also Ergon. Are they the ones that you wanted to? Or was it only Pulle?
PN1326
MR NGUYEN: Yes. That's right the three decisions that we were given today which is the Ergon and the two Pulle decisions.
PN1327
THE DEPUTY PRESIDENT: All right. I'm only going to give you until Friday, Mr Nguyen, to make those. Will you be seeking Mr Mead to have a look at those and make something in reply?
PN1328
MR MEAD: I desperately don't want to, your Honour, but if I did we could undertake to reply by Monday, close of business.
PN1329
THE DEPUTY PRESIDENT: Yes. Okay. Well, look if we do that and keep them - you know - obviously to the absolute minimum. Only those points that really are relevant to the matters that we have. I take your point, Mr Mead, that it is additional expense et cetera but look, I'm going to give the parties every opportunity to put what they need to.
PN1330
So I won't issue any formal directions in relation to that. Mr Nguyen you're on notice by close of business on Friday and Mr Mead by close of business on Monday. All right. Anything further? No? I thank you for the presentation of the case. It was helpful and will put me in good stead to be able to clarify the issues and make the determinations that need to be done. I thank the parties.
ADJOURNED INDEFINITELY [1.21 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
CLINTON MARK KEOGH, AFFIRMED........................................................ PN680
EXAMINATION-IN-CHIEF BY MR NGUYEN.............................................. PN680
EXHIBIT #A3 WITNESS STATEMENT OF CLINTON MARK KEOGH DATED 30/07/2015................................................................................................................................. PN685
CROSS-EXAMINATION BY MR MEAD........................................................ PN687
THE WITNESS WITHDREW............................................................................ PN869
PHILLIP JOHN O'KEEFE, SWORN................................................................. PN872
EXAMINATION-IN-CHIEF BY MS KASHMIRIAN..................................... PN872
EXHIBIT #R6 WITNESS STATEMENT OF PHILLIP JOHN O'KEEFE DATED 25/08/2015................................................................................................................................. PN884
CROSS-EXAMINATION BY MR NGUYEN................................................... PN887
RE-EXAMINATION BY MS KASHMIRIAN.................................................. PN991
THE WITNESS WITHDREW.......................................................................... PN1009
PHILLIP JOHN O'KEEFE, RECALLED ON FORMER OATH................ PN1011
RE-EXAMINATION BY MS KASHMIRIAN, CONTINUING................... PN1011
THE WITNESS WITHDREW.......................................................................... PN1062
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