C2015/2272, Transcript of Proceedings [2015] FWCTrans 561 (13 October 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052485

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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

10.04 AM, MONDAY, 21 SEPTEMBER 2015

PN1

THE DEPUTY PRESIDENT: Thank you. For the record I'll take appearances starting with the applicant.

PN2

MR M NGUYEN: Deputy President, my name is Mr Nguyen, N-g-u-y-e-n, initial M. I also appear with my colleague from the AMWU, Mr Wickham, initial M.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MR M MEAD: Good morning, your Honour. May it please, my name is Mead, initial M. I appear for Australian Industry Group on behalf of Simplot. With me is Ms Kashmirian, initial T, also from the Australian Industry Group, and Ms Wilson, initial S from Simplot.

PN5

THE DEPUTY PRESIDENT: Thank you. All right. Do we have some understanding about the order of witnesses?

PN6

MR MEAD: So I understand that the applicant intends to lead their evidence first, although Mr Nguyen has just made me aware that one of his witnesses is in fact not available today. I believe there's an application that Mr Nguyen intends to make in relation to having that witness dealt with tomorrow. Subject to what Mr Nguyen has to say we may have a response in relation to that application.

PN7

THE DEPUTY PRESIDENT: Right. Thank you. Mr Nguyen?

PN8

MR NGUYEN: Your Honour, we intend to lead the evidence from Mr Hind today, and Mr Keogh is not available today which is a public holiday, which I was made aware of recently. But he is available tomorrow, and we are currently in the process of seeking arrangements with the company to enable his attendance tomorrow to support his statement.

PN9

THE DEPUTY PRESIDENT: Right. Okay. So those arrangements hadn't been made earlier?

PN10

MR NGUYEN: No, your Honour. We only just found out or I only just confirmed last night that Mr Keogh was unable to attend, and we sought for his ability to attend for tomorrow. But we're currently in the process of seeking approval from the company for that to occur.

PN11

THE DEPUTY PRESIDENT: Okay. All right. Thank you. Take a seat. Mr Mead?

PN12

MR MEAD: Your Honour, as I understand the public holiday is a public holiday that's codified in the enterprise agreement the subject of the dispute, and applies specifically to the Ulverstone site. Now, it's my understanding there have been some discussions at a site level in respect of Mr Keogh's attendance today and also Mr Hind's insofar as time off in lieu had been granted for their participation in today's proceedings. We weren't notified that Mr Keogh, in fact, would not be available, and when I notified Mr Nguyen on Friday that we required both his witnesses for cross-examination, respectfully we would have expected that that was the time that we would have been notified of this application.

PN13

We oppose the application. We say it's out of the ordinary course for a party to lead evidence, and then when the matter is part-heard lead further evidence. So, you know, we can't see a good reason respectfully why the application should be granted, and believe it might put our case at prejudice in terms of Mr Keogh being able to respond to evidence that's led by our witnesses in the course of today's proceedings.

PN14

THE DEPUTY PRESIDENT: All right. Take a seat. Mr Nguyen, the reason that Mr Keogh is not available today, is he away?

PN15

MR NGUYEN: I understand that he had other matters which he was attending to, personal matters. It was a public holiday and he advised me that he wasn't planning to attend because it was a public holiday. I did advise him that he had made a statement and we had given him notice, but, I mean, those are the circumstances. I only confirmed last night that he wasn't available because of the public holiday and he'd made other arrangements, and at that point I did press on him that he was to be cross-examined by the respondent, and there's two days, and, "If it was possible if you could attend on the Tuesday", and he said, "That may be possible pending approval from the company." I think, in the present circumstances, if the company presses with the cross-examination then I think it's in their interest to if they want to rely on any submissions in relation to that cross-examination, to allow him to attend and support his statement, and respond to their cross-examination.

PN16

THE DEPUTY PRESIDENT: Yes. Take a seat. Look, my feeling is it's not unusual in these hearings for these matters to arise, and normally we would be reasonably fluid in allowing people in and out. I take your point, Mr Mead, that there may be matters which he can then respond to in relation to evidence which has been led by the other side, but, look, in any situation there could be an application made by Mr Nguyen to re-present a witness and you may oppose that application, and you may be successful in that application. Look, Mr Nguyen, is it likely that if Mr Keogh is called on Tuesday that you would then be asking him any questions in relation to evidence which might have been led by the respondents?

PN17

MR NGUYEN: Our intention was only that he come to present and support his statement and to allow for cross-examination. If it was our intention to lead further evidence-in-chief from the box, I would give Mr Mead notice and of course then I would apply to yourself, your Honour, for that to occur, if it was necessary. I don't think, at this stage, that it is.

PN18

THE DEPUTY PRESIDENT: Yes.

PN19

MR NGUYEN: But if it was then we'd provide that notice.

PN20

THE DEPUTY PRESIDENT: Okay. Thank you. Mr Mead, do you have any issue with that?

PN21

MR MEAD: Your Honour, we accept the point that you've made in relation to the solidity of these matters. Perhaps the only other point that we'd make is that to the extent that new evidence is sought to be led by Mr Keogh there was an opportunity pursuant to your directions for the prior material to be put in. Mr Keogh and the AMWU didn't avail themselves of that opportunity, so if they were to lead fresh evidence tomorrow they can expect a strenuous objection from us because it would put us at some prejudice.

PN22

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Mead. Well, look, on that basis, I'm prepared to grant the applicant the ability to have Mr Keogh present himself on Tuesday. Can I suggest that prior to lunchtime today, or by the conclusion of the lunchtime today, those arrangements if they can be finalised with the respondent in relation to being able to make Mr Keogh available, and if there's any difficulties with that I guess we will deal with it this afternoon. All right. Mr Nguyen, are you ready to proceed?

PN23

MR NGUYEN: Thank you, your Honour.

PN24

THE DEPUTY PRESIDENT: Do we need to have a chat also about the jurisdictional submissions?

PN25

MR NGUYEN: I was going to make a very brief submission.

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MR NGUYEN: We rely on our written submissions in terms of the jurisdictional issue, but our primary submission is that the current dispute settlement procedure is broad enough in its scope in terms of the matters that may be arbitrated under the dispute settlement procedure. In particular it says that:

PN28

Matters pertaining between the employee and the company.

PN29

That's a very broad scope, which I think encompasses the current dispute, and the Commission is able to arbitrate the present dispute within the scope of that dispute settlement procedure. I was just going to make a few brief opening statements before we lead evidence, and then if Mr Mead wants to respond to it we can deal with the jurisdictional issue first on that. As the Commission pleases.

PN30

MR MEAD: Sorry, your Honour, I don't mean to interrupt Mr Nguyen. I'm not sure if Mr Hind is in the room. To the extent that he is we would just ask that prior to Mr Nguyen commencing with his opening submissions, and we have no quarrel if that's the course he wishes to take, but Mr Hind be excused from the proceedings.

PN31

This isn't a party/party matter in the traditional sense so we would say that he should appropriately be excluded, and then we will reply to Mr Nguyen's submissions if that's appropriate. For our part we don't believe the jurisdictional issue needs to be dealt with as a threshold issue at the outset. Instead it's perhaps something that can more appropriately be dealt with in closing submissions, in the totality of the case being ‑ ‑ ‑

PN32

THE DEPUTY PRESIDENT: That's good, because I wasn't going to deal with it upfront, so we're all in agreement.

PN33

MR MEAD: Thank you, your Honour.

PN34

THE DEPUTY PRESIDENT: All right. Mr Hind, yes, sorry, what we could do is get you to take a seat just out in the waiting area.

PN35

MR HIND: Yes.

PN36

THE DEPUTY PRESIDENT: We'll deal with the opening submissions and then when you're ready my Associate will come and grab you. Okay. Thank you. Now, I understand the other gentleman is an observer only; is that correct?

PN37

UNIDENTIFIED SPEAKER: That's correct.

PN38

THE DEPUTY PRESIDENT: Yes. Thank you. Mr Nguyen?

PN39

MR NGUYEN: Your Honour, our primary submission is that the over award clause in the 2011 agreement and also the 2014 agreement is 7.3 in the 2011 agreement and 6.3 in the 2014 agreement. Our primary submission is that that clause provides sufficient support for the entitlement to be retained, the entitlement being that travelling time for employees who are based at Ulverstone should be included as part of their ordinary hours of work as it had been for a period of time over 15 years, and that that entitlement was reinstated by the company after it attempted to take it away.

PN40

The union will lead evidence about the timeline of events which support our submission that the travel time should be considered time worked and not paid as travel time. The time levels support a finding that the travel entitlement is an existing over award payment and should be maintained by the employer as if it were a clause of the agreement.

PN41

The second submission is in relation to travelling time under the award. If the Commission is not satisfied that it is an over award payment then we, in a secondary sense, make submissions about the passive travel being a different type of travel under the award to the current situation where driving is currently undertaken by the employee to offsite locations as part of their duties.

PN42

Your Honour, the union will seek to respond to the Ai Group's, the company's submissions about the interpretation of the clauses following their oral submissions on the matter, however, our preliminary submission is that following the Full Bench decision in AMIEU and Golden Cockerel the plain meaning of the agreement should be preferred and that our interpretation of clause 6.3 is a plain meaning and a plain reading of the agreement.

PN43

The union submits that there's no ambiguity in clause 7.3 of the 2011 agreement or clause 6.3 of the 2014 agreement. With respect to the company's submissions about mistake, this equitable principle of mistake the union intends to respond following oral submissions however from the outset we consider that the equitable principle of mistake is irrelevant to the current proceedings.

PN44

That concludes my opening statements, your Honour.

PN45

THE DEPUTY PRESIDENT: Just before you sit down, Mr Nguyen, are you able to confirm with me, the application that was made and dated, I think it was 27 March 2015, talks about the relevant instrument being the 2011 - 2014 agreement and then under the relief sought it's clear that the 2014 2017 agreement is captured. Are you able to clarify for me which agreement the dispute resolution proceeding has been bought?

PN46

MR NGUYEN: The dispute resolution proceedings has been bought under the 2014 agreement. And the evidence that we seek to lead to support the finding of facts which is to support our case is that the entitlements have existed before the 2011 agreement, from when Mr Hind was employed going through ‑ ‑ ‑

PN47

THE DEPUTY PRESIDENT: And the clauses are identical?

PN48

MR NGUYEN: And the clauses are yes.

PN49

THE DEPUTY PRESIDENT: Yes. Yes. Okay. Thank you. All right. Are you in a position to call your first witness?

PN50

MR NGUYEN: Yes, your Honour. If we can call Mr Hind, please, to the witness box?

PN51

THE DEPUTY PRESIDENT: Thank you.

PN52

THE ASSOCIATE: Could I get you to state your full name and address, please.

PN53

MR HIND: Stephen Paul Hind (address supplied).

<STEPHEN PAUL HIND, AFFIRMED [10.18 AM]

EXAMINATION-IN-CHIEF BY MR NGUYEN [10.19 AM]

PN54

MR NGUYEN: Mr Hind, do you have a copy of your 30 July statement in front of you?‑‑‑Yes, I do.

PN55

Yes. And do you have a copy of your 6 September statement in front of you?‑‑‑Yes, I do.

PN56

Okay. Are those statements, to the best of your knowledge, accurate and correct, Mr Hind?‑‑‑Yes, except for the one on 6/9. It's the 6/9, there's one on there is not right, it wasn't finished off.

PN57

THE DEPUTY PRESIDENT: Yes, there was a paragraph without a full stop at the end?‑‑‑Yes.

*** STEPHEN PAUL HIND XN MR NGUYEN

PN58

Yes?‑‑‑Yes, someone has written that it is there. Fourteen and the employment contract one. The terms and conditions, travel as they were, but it wasn't finished though.

PN59

MR NGUYEN: Your Honour, if we can just strike that paragraph out?

PN60

THE DEPUTY PRESIDENT: So, you're seeking to remove paragraph 14?

PN61

MR NGUYEN: We can just remove paragraph 14.

PN62

THE DEPUTY PRESIDENT: Thank you. Any objections to that, Mr Mead? No. Thank you.

PN63

MR NGUYEN: Okay. With that paragraph deleted, is the statement true and accurate, Mr Hind?‑‑‑Yes. Yes, it is.

PN64

Thank you, your Honour. We don't intend to lead the evidence that's in the statement unless you prefer us to lead the evidence-in-chief orally? As the Commission pleases.

PN65

THE DEPUTY PRESIDENT: No, that's fine. What I propose to do just to save any confusion is to give both of these statements exhibit numbers. I think that's preferred, so we'll deal with the first one. So I think your comments, then, Mr Hind were in relation to both of the statements being true and correct?‑‑‑Yes.

PN66

Okay. That being the case your first statement is the statement containing 10 pages and 59 paragraphs. It's dated 30 July 2015, and will be known as exhibit A1.

EXHIBIT #A1 WITNESS STATEMENT OF STEPHEN PAUL HIND DATED 30/07/2015

PN67

THE DEPUTY PRESIDENT: Your supplementary witness statement is containing four pages and now 23 paragraphs with deletion of paragraph 14, and dated 6 September 2015 will be known as exhibit A2.

EXHIBIT #A2 WITNESS STATEMENT OF STEPHEN PAUL HIND DATED 06/09/2015

PN68

THE DEPUTY PRESIDENT: Thank you, Mr Nguyen.

*** STEPHEN PAUL HIND XN MR NGUYEN

PN69

MR NGUYEN: Yes, your Honour. We seek to tender those statements.

PN70

THE DEPUTY PRESIDENT: Thank you very much. All right, Mr Mead?

CROSS-EXAMINATION BY MR MEAD [10.21 AM]

PN71

MR MEAD: Thank you, your Honour. Mr Hind, do you have a copy there of your statement we've marked exhibit 1. The statement was dated 30 July 2015?‑‑‑Yes.

PN72

Could I just draw your attention to paragraph 2 of that statement, Mr Hind?‑‑‑Yes.

PN73

You see there you say at paragraph 2, the second sentence:

PN74

I don't have a title but I'm employed to unload spuds into dog boxes and store potatoes into sheds.

PN75

And you go on to talk about the storage process and then offsite starting at the end of March and continues for four to 10 weeks. Do you see that in paragraph 3 of your statement?‑‑‑Yes.

PN76

I'm correct, having read your statement, aren't I that your role also includes the loading process? You call that hogging out?‑‑‑Yes.

PN77

Yes. And, Mr Hind, at paragraph 24 of your statement you make reference to getting the hog and piler. Can you assist me, in terms of the hog and piler is that a machine?‑‑‑Yes, it's just a machine. That's - the hog is what loads the potatoes on to the pile and the piler loads the potatoes into the trucks.

PN78

Okay?‑‑‑And they come with dogs.

PN79

And just so I understand, I've gotten a bit of a crash course on potato storage, the piler is it a conveyor belt that I guess ‑ ‑ ‑?‑‑‑On wheels.

PN80

On wheels, and there's a boom or a swinging arm that feeds the potatoes in to the stall?‑‑‑Into the yes.

*** STEPHEN PAUL HIND XXN MR MEAD

PN81

So, at paragraph 24, you're identifying that you need to get the hog and piler ready. So that's an apparatus that you use to perform your work?‑‑‑Yes.

PN82

Yes. Okay. Can I also just understand in terms of your responsibilities, it's the case, isn't it, that during the unloading process you're responsible for collecting samples of potatoes as they come off the trucks?‑‑‑Yes.

PN83

Is it two samples that you ordinarily have to collect, per truck?‑‑‑Two 20 kilo samples per truck.

PN84

Sure. And then is it also your responsibility to deliver those samples to an inspection area so they can be tested?‑‑‑We when we're offsite we put them on the pallets and plastic wrap them, and then a sample man comes up and collects them and brings them back to Simplot (indistinct).

PN85

Okay. Great. Thank you. And am I also correct in understanding that, as part of your role, you have a responsibility for ensuring that the unloaded product, the unloaded potatoes meet a certain quality standard; that's correct?‑‑‑Yes.

PN86

And if in fact they don't meet that quality standard, once again it's your responsibility to ensure that the product isn't loaded?‑‑‑Yes.

PN87

Okay. It's also your responsibility, isn't it, to ensure that, during the storage process, there's an even distribution of potatoes in the storage shed?‑‑‑Yes. We I get information off Kerry Beard of how many loads he wants and then I just go by that.

PN88

Yes?‑‑‑And, say, well yes.

PN89

But I guess in the storage sheds it's important to make sure that all the potatoes are stacked up in one area so there's even distribution?‑‑‑Yes. Yes. No, it's even. Yes.

PN90

I also understand let me know if this isn't right that potatoes bruise easily, so there's a responsibility that you have to ensure that the drop when they come off the piler is no more than six ‑ ‑ ‑?‑‑‑Six inches.

PN91

‑ ‑ ‑to eight inches?‑‑‑Yes, six inches we try at.

*** STEPHEN PAUL HIND XXN MR MEAD

PN92

Okay. I've been told of something called fogging or a fogging procedure. Can you explain to me what that is?‑‑‑We when the sheds are full of potatoes, we've got a big machine and we've got blocks in there and we melt them down and we spray the spuds through the fans in the sheds to stop them from sprouting. So it just keeps them a bit longer in the sheds.

PN93

Okay. So it's to save spuds from spoiling; is that ‑ ‑ ‑?‑‑‑Yes, from sprouting and re-growing.

PN94

Sure. And that's part of your responsibility as well?‑‑‑A little bit. I do a little bit with Clint. Clint mostly does a lot of that.

PN95

Okay. Clint Keogh, is that who you're talking about?‑‑‑Yes.

PN96

Okay. Thank you?‑‑‑Clint Keogh, sorry.

PN97

So you assist with that process? That's part of your job?‑‑‑Yes, sometimes. Yes.

PN98

Okay. And do I also understand that as part of your role you have responsibility to ensure that the machines that you use, the conveyors, the unloaders, the pilers, that they're cleaned after use. That's general maintenance of the ‑ ‑ ‑?‑‑‑General maintenance. Yes.

PN99

‑ ‑ ‑offsite stores is your responsibility?‑‑‑Yes. Yes.

PN100

And do you also operate unloaders?‑‑‑Just unloaders, what goes at the back of the piler, so tip trucks can tip up to it.

PN101

Okay. And I understand that's a big box that's then ‑ ‑ ‑?‑‑‑Yes.

PN102

‑ ‑ ‑the conveyor attaches to it so the spuds can ‑ ‑ ‑?‑‑‑Yes. We need to move them. We try not to use them as much as possible.

PN103

And you are therefore responsible also to maintain the unloaders, the pilers, the conveyors?‑‑‑Yes.

PN104

And you liaise with the maintenance teams to make sure that they're in good working order?‑‑‑Yes. If something goes wrong. Yes.

*** STEPHEN PAUL HIND XXN MR MEAD

PN105

Yes. And is there a check list you need to complete in relation to those pieces of equipment to make sure that they are in good working order? So a checklisting that you tick off?‑‑‑The piler operator. Whoever is doing them will do the checklist with the piler operator.

PN106

Okay?‑‑‑With the piler and that.

PN107

Yes. Do you ever need to use a quad bike in relation to your duties?‑‑‑Years ago. Not no more. We have mules now.

PN108

Mules. Okay?‑‑‑Yes.

PN109

And a mule is a four-wheel vehicle?‑‑‑With a little Ute back on it.

PN110

It kind of looks a little bit like a golf cart with a tray at the back?‑‑‑Yes. Yes.

PN111

Sure. Do you also need to use a bobcat to help stack potatoes and move equipment from ‑ ‑ ‑?‑‑‑Yes, we use a bobcat getting flumes out of the sheds and ‑ ‑ ‑

PN112

Yes. And that's offsite?‑‑‑Yes. And onsite. Yes, onsite.

PN113

Yes. Is there a tractor at Cressy?‑‑‑No, not no more.

PN114

No?‑‑‑That's only onsite.

PN115

Okay. Did there used to be?‑‑‑We did have a tractor. Yes.

PN116

Okay. And you once again, part of your responsibility was to operate that; is that correct?‑‑‑Other guy done that, Phil Britton.

PN117

Okay. And can you also confirm for me that operating a fork lift, that's part of your responsibility as well? You need to do that from time to time?‑‑‑Yes.

PN118

And, what is that for the offsite work?‑‑‑Offsite as well.

*** STEPHEN PAUL HIND XXN MR MEAD

PN119

Yes. Now, obviously in terms of all the work you do you've got an obligation to ensure that compliance with safety processes and procedures is undertaken?‑‑‑Yes.

PN120

And you've got an obligation to obviously perform your role safely as well? Have you seen the statement of Peter Hardman provided in relation to these proceedings?‑‑‑I suppose, yes. If it's in here I've read it. Yes.

PN121

Yes?‑‑‑Yes.

PN122

I'm sorry, I don't know what documents you have. What I might do, if I can approach the witness, your Honour, is just provide you with an extract from Mr Hardman's statement. I'll just identify that for the record, your Honour. It's exhibit PH1 to Peter Hardman's statement which is the position description for a process operator.

PN123

THE DEPUTY PRESIDENT: Yes.

PN124

MR MEAD: Mr Hind, just take some time have you seen that document before?‑‑‑Yes. Yes, I have. Yes.

PN125

Yes. Are you familiar with it?‑‑‑Yes.

PN126

Yes. Would you agree with me that that document describes the work that you performed offsite at Powranna and the other offsite stores?‑‑‑Yes. Yes.

PN127

Yes?‑‑‑Yes.

PN128

So the discussion that we just had about all the tasks that you performed, do you agree with me that they're reflected in that position description that I've just provided to you? Please take your time to have a look at it if you need to?‑‑‑Yes, this is more this is when this was done. It's more like it was onsite. We still do the we do the jobs offsite for some of these but we do yes.

PN129

So you do do them offsite?‑‑‑Yes.

PN130

It reflects the work that you do offsite?‑‑‑It does reflect some.

*** STEPHEN PAUL HIND XXN MR MEAD

PN131

Yes. And can I just understand that when you've worked alongside casuals offsite, you still need to perform all of those tasks that we've just spent the last five minutes discussing?‑‑‑Yes. Yes.

PN132

Operating the piles, operating the unloaders, the conveyors, quality checks and the like?‑‑‑Yes.

PN133

Okay. Thank you. Mr Hind, if I could ask you now just to turn to attachment A of your first statement, exhibit 1?‑‑‑Yes.

PN134

And those are all the pay slips that you attached to your first statement?‑‑‑Yes.

PN135

You see those there. And we'll just deal with the first one for the moment. You see in the top left-hand corner it says "Base salary 25.8174". Do you see that there?‑‑‑Yes.

PN136

And you see that it bears the date, the pay period 5 September 2012. It's correct, isn't it, that you're paid at the classification F3 under the agreement?‑‑‑Yes. I'm not quite sure on that one. I just yes.

PN137

Okay. Well, perhaps this document may assist you. So I'll just identify this document for the record, your Honour. It's an extract from the 2011 national certified agreement. Essentially the cover page and then the schedule of wage rates for Ulverstone employees. Mr Hind, I guess taking this document at face value, and if it is what I say it purports to be, you'll see there in the third column in the top table underneath the date 1 March 2012, at the F3 level, the dollar figure of $25.8174?‑‑‑Yes.

PN138

THE DEPUTY PRESIDENT: Sorry, could you just repeat that clause again?

PN139

MR MEAD: Yes, your Honour. So the top table.

PN140

THE DEPUTY PRESIDENT: Yes.

PN141

MR MEAD: Underneath the column 1 March 2012, which is the date that those wage rates are operative.

PN142

THE DEPUTY PRESIDENT: Yes.

*** STEPHEN PAUL HIND XXN MR MEAD

PN143

MR MEAD: The F3 level, the fourth line, on the horizontal access, $25.8174 which corresponds with the F3 rate on your pay slips?‑‑‑Yes.

PN144

And equally over the page, the next attachment, which is for a slightly later pay period, you'll see it says there, it applies on pay date 17 April 2013, base salary that's moved to 26.8604 on your pay slip?‑‑‑Yes.

PN145

And that corresponds once again with the F3 rate from 1 March 2013. You see that there. And then go over two pages, please, Mr Hind, to the pay period 16 April 2014. It's a pay slip for some $2445.85. Do you have that one there?‑‑‑Yes. Yes.

PN146

And once again the base salary has moved to 27.3976 which corresponds with the last column on that table, 27.3976. You see it there. So once again, assuming that those documents are what they say they are, you would agree with me that your pay is to an equivalent rate to the F3 classification under the ‑ ‑ ‑?‑‑‑Yes.

PN147

Thank you.

PN148

THE DEPUTY PRESIDENT: If I can ask a question, Mr Mead, about the attachment C. What's not clear to me is the normal earnings of which there were 40 hours is paid at $28 or 28.2321 dollars and the travel time there down the bottom is paid at a different rate.

PN149

MR MEAD: Yes.

PN150

THE DEPUTY PRESIDENT: And that is different to the other pay slips.

PN151

MR MEAD: And I think I can clarify that for you, your Honour. It's my understanding, and I'm happy to be corrected by Ms Wilson ‑ ‑ ‑

PN152

THE DEPUTY PRESIDENT: Is this the 40 cent increase that occurred?

PN153

MR MEAD: That's correct.

PN154

THE DEPUTY PRESIDENT: Right.

*** STEPHEN PAUL HIND XXN MR MEAD

PN155

MR MEAD: So the way in which payroll, I believe, adopts it is it's an all-purpose allowance, so therefore they load it into the rate of pay. Well, they adjust the rate of pay for the core hours and the ordinary hours.

PN156

THE DEPUTY PRESIDENT: Somewhat risky I would think.

PN157

MR MEAD: Perhaps. But I understand that that's why there's movement in what will be the first four rates on that sheet.

PN158

THE DEPUTY PRESIDENT: Yes. Mr Hind, if I could ask you is that your understanding of why there was a different hourly rate, and it was $28.23 if you like, but your travel time was paid at a lesser amount, is it your understanding because there was that leading hand component which had been offered to you?‑‑‑Yes. That's yes.

PN159

Thank you.

PN160

MR MEAD: Thank you, your Honour.

PN161

THE WITNESS: Could I just say ‑ ‑ ‑

PN162

THE DEPUTY PRESIDENT: Yes.

PN163

THE WITNESS: ‑ ‑ ‑back when I first started going offsite Peter Hardman said to me that you'd get a $1.20 or was it $1 an hour extra for going offsite for the responsibility. That's what that was put in place. When I started getting it, that's why the hourly rate was different.

PN164

MR MEAD: Is that the movement to the F3, the higher rate?‑‑‑Yes, the higher rate. And I was always - been getting it ever since I went offsite I was always getting $1 or $1.20 an hour more than what the other blokes at work were getting.

PN165

Yes. So the people that were doing a similar job to you onsite, doing the loading and unloading, were they being classified at the F2 rate; is that your understanding?‑‑‑The standard F3 rate.

PN166

Sorry, not you, but ‑ ‑ ‑?‑‑‑Yes.

*** STEPHEN PAUL HIND XXN MR MEAD

PN167

‑ ‑ ‑you said there were people who were getting a lower rate. You were doing about $1 or $1.20 an hour?‑‑‑They were getting F3 at 27 and I was getting that little bit extra for going offsite. That was just the deal was done just like that. It was nothing written, it was just that's how it happened, and it was always done that way.

PN168

So are you talking about the recent discussions that you had with Phil Guard, or are you talking about the original discussions?‑‑‑The original discussion with Peter Hardman.

PN169

Okay?‑‑‑Back in 2000 when I first went offsite.

PN170

But there was an additional payment that Peter Hardman ‑ ‑ ‑?‑‑‑Yes. He said, "We'll just pay you extra because you're going offsite, and there'll be responsibilities."

PN171

Understood?‑‑‑Yes.

PN172

THE DEPUTY PRESIDENT: Is that reflected in these pay slips?‑‑‑Only if you look at, like, one of the other worker's pay slips that I've had offsite, they're just a dollar under than what I was.

PN173

Okay. All right. Thank you.

PN174

MR MEAD: Mr Hind, I'll just ask you to draw your attention back to your first statement once again. Now, I understand from the evidence that you've given about when you first started doing the offsite work at Cressy that you've indicated that you could be at the Powranna store sheds from around 7 am to 6.30 at night, Monday through Friday during storage season; that's correct, isn't it?‑‑‑Yes.

PN175

And then also there might be overtime on Saturday work?‑‑‑Yes.

PN176

That's also correct. Can I ask that when you were staying at Cressy was it generally your practice to go to the Cressy Hotel on the Sunday night before and then work through the week and then come home on the Saturday after the completion of overtime?‑‑‑That depended how I felt. Some nights I'd go up Sunday night, some nights I'd go Monday morning. Depending how I felt, you know what I mean.

*** STEPHEN PAUL HIND XXN MR MEAD

PN177

Okay. So you were the, I guess, you were the master of your own destiny t a certain degree. You could make the decision as to whether to ‑ ‑ ‑?‑‑‑Go now.

PN178

‑ ‑ ‑drive up in the morning ‑ ‑ ‑?‑‑‑Yes.

PN179

‑ ‑ ‑or to stay at the hotel the night before?‑‑‑Stay at the hotel. Yes.

PN180

Okay. And at paragraph 35 you indicated that back when you were doing this originally you had a young family?‑‑‑Yes.

PN181

So some nights once again you'd cancel your room and head home to spend time with your family?‑‑‑Yes.

PN182

And once again, I take it from that paragraph that was a decision that you made yourself, so you'd decide whether in fact you wanted to head home or stay overnight?‑‑‑Sometimes I'd ring and say I'm coming home for the night, you know what I mean. Go back the next morning, just so Kerry knew.

PN183

Yes, fair enough. But the decision to head home, that was a decision made within yourself?‑‑‑Mine, yes. Yes.

PN184

Yes, and it's also the case that when you did do that, so when you did decide to head home to see the family and to see the kids, you'd continue to record your travel time as if it was from your home in (town name supplied) to Powranna?‑‑‑Yes.

PN185

Yes, it's also the case that no one instructed you to do that, did they?‑‑‑It was just always when I was - it was made from when I left the pub till I got back to the pub or whenever. From when I left my home till I got back to my home was - that's how I always took it and was told - Kerry just said, "From when you leave home till you get back home you write your times down".

PN186

Yes, I understood that's how you took it?‑‑‑Yes.

PN187

But what I'm trying to understand is no one directed you to apply that practice when you started travelling home back to (town name supplied) and heading then to Powranna on a daily basis?‑‑‑No. No, it was just done.

*** STEPHEN PAUL HIND XXN MR MEAD

PN188

Yes, okay. Can I just ask you that when you started regularly driving home do you recall Peter Hardman at times expressing concern about your safety?‑‑‑Yes, a couple of times.

PN189

Yes?‑‑‑He said, "Are you right in that?" and I'd - yes.

PN190

Yes and he had concerns, you'd agree with me, about the idea of you working a full day and then driving home to (town name supplied), that that might potentially put you at risk so he had those discussions with you? You recall discussions of that nature?‑‑‑Yes. Yes.

PN191

Do you recall him saying words to the effect that he didn't want you to wear yourself out travelling?‑‑‑Probably, yes.

PN192

Possibly?‑‑‑Probably, yes.

PN193

Do you remember him saying to you that you always had the opportunity of staying overnight at the pub?‑‑‑Yes.

PN194

You remember he said that to you?‑‑‑Yes. Yes.

PN195

Yes. Now in terms of your travel to Cressy, Powranna, one and the same, it's correct isn't it that you always used a Simplot vehicle, a Simplot owned vehicle to do that journey?‑‑‑One year, the first year or the second year I used my own car and they paid me allowance.

PN196

Yes?‑‑‑But though all after that's been a Simplot vehicle.

PN197

So your first year would have been 2000, your second year around 2001?‑‑‑Yes, it would be.

PN198

So with the exception of 2000 and 2001 in that period it was always the Simplot vehicle?‑‑‑A Simplot vehicle.

PN199

Can you look at paragraph 57 please, Mr Hind, of your statement. If you just take a moment to familiarise yourself with it. So paragraph 57 you're talking about something that happened last season in transporting a fitter from Devonport to Powranna. I take it from your statement that wasn't a common occurrence, was it, in terms of how you - - -?‑‑‑No, I'd usually travel myself.

*** STEPHEN PAUL HIND XXN MR MEAD

PN200

Yes, so in terms of this fitter that you describe at paragraph 57 can I just ask is that something that happened once or did it happen for a week or for - - -?‑‑‑It happened for the storage division last year at Powranna.

PN201

Okay so - - -?‑‑‑Every day.

PN202

- - - do you recall how long the storage season was for at Powranna? Was it four weeks, was it - - -?‑‑‑Four to five weeks approximately.

PN203

Four to five weeks?‑‑‑Yes.

PN204

Okay. But it's the case that that experience of taking someone to the offsite store, that was very much an exceptional set of circumstances that happened last year and last year alone?‑‑‑Yes.

PN205

Yes, okay.

PN206

THE DEPUTY PRESIDENT: If I might just interrupt your flow, Mr Mead and just confirm. So Mr Hind what I hear you say then is the three months that it normally takes from March until the end of June for the storage season is for the entire storage season? Powranna doesn't span that amount of time?‑‑‑No it's not - - -

PN207

It's four to five weeks?‑‑‑Yes.

PN208

Okay, thank you.

PN209

MR MEAD: Thank you.

PN210

Mr Hind, I just want to ask you now about the evidence you've given relating to the discussions you had with Les Murdoch and Phil Guard about the move away from paying travel time and overtime rates that you've identified in your statement. Now it's starts at paragraph 43 of your statement through to around paragraph 47. Can I ask is it the case that the meeting you had with Les Murdoch and Phil Guard, there was just that one meeting to discuss first of all that travel time wouldn't be paid at overtime rates and then as part of that meeting there was also a discussion about this leading hand issue? Sorry, is that a yes?‑‑‑Yes. Yes. Sorry, yes. Sorry.

*** STEPHEN PAUL HIND XXN MR MEAD

PN211

It's just the transcript can't pick up the nod unfortunately?‑‑‑Yes. Yes.

PN212

So just so I understand your evidence, so there was only one discussion that you had where that issue was discussed with both Les Murdoch and Phil Guard?‑‑‑Yes.

PN213

Yes, okay?‑‑‑Yes.

PN214

So there's no date in your first statement in relation to that discussion but your second statement, exhibit 2, does assist in providing some further details in relation to it. If I could just ask you to turn to that for me, Mr Hind?‑‑‑Yes.

PN215

So you say at paragraph 3 that:

PN216

Approximately around February 2014 I was asked to go into the office. Les Murdoch and Phil Guard were in the office.

PN217

And then you go on to describe the discussion in relation to travel time and also the leading hand issue. So I'm correct, based on your earlier evidence then, that the discussion that you're referring to at paragraphs 43 through 47 of your first statement and then the discussion you're referring to at paragraphs 3 to 8 of your second statement, they're the same discussion aren't they?‑‑‑Yes.

PN218

Yes?‑‑‑Yes.

PN219

And that discussion happened in February 2014?‑‑‑Roughly around there, yes.

PN220

Yes, okay. So in that discussion in February 2014 it's a fair assessment of your evidence, isn't it, that in response to being told that you were going to be paid a leading hand allowance for the offsite work, that you agreed that that was an acceptable compensation for the offsite work?‑‑‑I accepted that in the - when Les said that "For what you're going to be losing out of travel time will be - you'll make it up nearly in leading hand rates" and I said "Well if it - I'm not going to lose much, $20, $30, I would accept that" and that's what he said. But it worked out it was - - -

PN221

Yes, but in that meeting from on what you communicated to Phil Guard and Les Murdoch - - -?‑‑‑I did accept it. Yes, in what I did accept it, that I thought I wasn't going to lose too much money.

*** STEPHEN PAUL HIND XXN MR MEAD

PN222

Yes, that it was an okay arrangement. You agreed to (indistinct)?‑‑‑Yes. Yes. Mutually.

PN223

And I just want to understand - and I apologise for jumping around a bit, Mr Hind?‑‑‑Yes.

PN224

At paragraph 51 of your statement you say that you:

PN225

remember talking to Les Murdoch about five months ago with words to the effect that "It should be on a rotating basis. Not fair that I don't overtime for working 12 hours".

PN226

et cetera. I'm just trying to understand where this sits in the timeline. So when you say five months ago, your statement is dated 30 July 2015 so on my calculations five months prior to that is around March 2015?‑‑‑Yes.

PN227

Is it fair to say that that's around the time you had that conversation with Les Murdoch?‑‑‑Yes.

PN228

Yes?‑‑‑Probably, yes.

PN229

So "five months ago" is a reference to the date of your statement and counting back five months?‑‑‑Yes.

PN230

Yes, okay.

PN231

THE DEPUTY PRESIDENT: Sorry, what discussion is that that you were referring to, Mr Mead? I'm just not clear about that.

PN232

MR MEAD: Yes I apologise, your Honour. So there's a statement that Mr Hind makes at paragraph 51.

PN233

THE DEPUTY PRESIDENT: Yes.

PN234

MR MEAD: About having a discussion with Les Murdoch about the rotation of - - -

*** STEPHEN PAUL HIND XXN MR MEAD

PN235

THE DEPUTY PRESIDENT: Yes, so it's that particular discussion you're talking about?

PN236

MR MEAD: Yes.

PN237

Mr Hind, once again I'm just basing this on your evidence. It's a correct and fair assessment of your evidence, isn't it, that between the February 2014 discussion that you had with Phil Guard and Les Murdoch and then the discussion you had with Les Murdoch in March 2015, there's nothing else in your evidence that indicates that you raised a further issue in relation to the payment of travel time not at overtime rates?‑‑‑We kept raising it with the union all the time trying to get it done. I kept going and seeing Phil Guard and saying that I want it put into dispute and then he would say "Well, you've got to see your union about it" and I'd see the union. He'd see Sandra and then Sandra would say they haven't seen it and so I kept bringing it up all the time.

PN238

When you say you were speaking to the union, can you indicate who you spoke to?‑‑‑I was speaking to - we was talking to Shane Littler at the time.

PN239

I see?‑‑‑Yes, and - - -

PN240

Did you speak to Wally Musgroves?‑‑‑Wally Mosko and Clinton Keogh and Clinton was the one that was helping us. He was a union delegate before he was out of it, and he was helping us with the paperwork and doing all that.

PN241

But you understood, didn't you, that Phil Guard continually advised you that - and this is really at paragraph 49 of your statement. It was Phil Guard's position that the company hadn't been advised by the union that the issue was in dispute?‑‑‑Well, that's when I kept trying to - and kept saying "Well" - I kept saying to Phil "Well, I've rung Shane Littler" up and he kept saying "It's in dispute". Well then I'd get on to Phil again and Phil would come and see Sandra and he'd say "Well, it's not in dispute". And I just kept trying - yes, and this is - it just kept going on and on and on.

PN242

Thank you. I've nothing further. Thank you, your Honour.

PN243

THE DEPUTY PRESIDENT: Thank you very much Mr Mead.

PN244

Sit tight, Mr Hind, you're nearly done?‑‑‑It's all right.

*** STEPHEN PAUL HIND XXN MR MEAD

PN245

Mr Nguyen?

PN246

So if I might just clarify with you, Mr Hind, so I think what I heard you say was that you'd raised the matter on a number of occasions with Mr Guard?‑‑‑Yes. Yes, I did.

PN247

And he spoke to Ms Wilson is your understanding?‑‑‑Yes, yes. That's my understanding, yes.

PN248

And the response was that the union - - -?‑‑‑The union hadn't put it in dispute each time.

PN249

Okay?‑‑‑So we'd get back on to Shane Littler.

PN250

Okay, but you had raised it with Mr Guard?‑‑‑Yes.

PN251

Thank you.

RE-EXAMINATION BY MR NGUYEN [10.52 AM]

PN252

MR NGUYEN: Mr Hind, I'll just draw your attention back to the extract that Mr Mead gave you from Mr Hardman's statement?‑‑‑Yes.

PN253

The position description. That's the process operator raw material receivable?‑‑‑Yes, okay. Yes. Yes.

PN254

Are you aware if this position description applies to any other employees?‑‑‑Yes, well there's two or three of us that do this offsite work, you know, mainly me but - yes.

PN255

So are you saying that the position description only applies to offsite work?

PN256

MR MEAD: Perhaps less leading, Mr Nguyen.

PN257

THE DEPUTY PRESIDENT: If you could direct your objections to me, Mr Mead, thank you.

*** STEPHEN PAUL HIND RXN MR NGUYEN

PN258

MR MEAD: Right, I apologise.

PN259

THE DEPUTY PRESIDENT: Yes.

PN260

MR NGUYEN: I'll rephrase the question.

PN261

THE WITNESS: Yes.

PN262

MR NGUYEN: Sir, how many employees are you aware of this position description applying to?‑‑‑Not - mainly three. Three of us, but mainly that one - yes, they're for me. Yes.

PN263

Where do you perform these tasks that are listed in the position description?‑‑‑I perform these ones offsite, like at offsite sheds at Powranna and places like that.

PN264

Okay, I'll move on to another question. Mr Hind do you recall any discussions that you had with anyone about how you should be filling out your timesheet in terms of when you should start?

PN265

MR MEAD: Your Honour, I believe this as part of re‑examination extends beyond matters that I cross‑examined Mr Hind on. I didn't ask him a single question in respect of timesheets.

PN266

THE DEPUTY PRESIDENT: Mr Nguyen, which question were you hanging this off?

PN267

MR NGUYEN: Mr Mead asked Mr Hind a question about whether anyone had told him that he should start from when he left his home.

PN268

THE DEPUTY PRESIDENT: Yes.

PN269

MR NGUYEN: And returned home. I think that was the question.

PN270

THE DEPUTY PRESIDENT: He was asked whether he had been instructed to do that, so I will allow it.

*** STEPHEN PAUL HIND RXN MR NGUYEN

PN271

MR NGUYEN: Do you recall any discussion about when you should fill out your timesheet about when you started and when you finished?‑‑‑The only discussion I had was with Peter Hardman and that was when I was staying away. He said, "When you leave the pub till you get back to the pub you get paid" but then the other travelling time was just - it was done and then Kerry used to just say "Write your start down till your finish time when you got home" and that's what I just used to do, and then it just stayed at that, so.

PN272

THE DEPUTY PRESIDENT: Now that discussion in relation to Mr Hardman is actually in your statement, isn't it?‑‑‑Yes.

PN273

Yes. Thank you.

PN274

MR NGUYEN: No further questions, your Honour.

PN275

THE DEPUTY PRESIDENT: Thank you very much.

PN276

Thank you for your testimony, Mr Hind, you're free to go?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW [10.58 AM]

PN277

THE DEPUTY PRESIDENT: Now what I can let the parties know is we do have a folder here with copies of all of the witness statements in it so we can just have that folder in the witness box, which may save having to hand things or copies of other people's witness statements up. All right, so Mr Nguyen you have no other witnesses to call today?

PN278

MR NGUYEN: No, your Honour.

PN279

THE DEPUTY PRESIDENT: No. Okay, Mr Mead?

PN280

MR MEAD: Your Honour, we directed our first witness, Mr Peter Hardman, to make himself available, we expected by 12 noon which is when he would be required. We've sought to put a call into him to get him to accelerate his attendance, so perhaps a short adjournment might allow us to try and make contact with him and see if we can get him here in advance of that 12 o'clock scheduled time, if that's convenient?

PN281

THE DEPUTY PRESIDENT: Okay, we'll adjourn for - - -

*** STEPHEN PAUL HIND RXN MR NGUYEN

PN282

MR MEAD: Perhaps one of - sorry, your Honour.

PN283

THE DEPUTY PRESIDENT: Yes?

PN284

MR MEAD: Your associate advised me that I did neglect to tender the extract from the 2011 agreement. To the extent that it's - - -

PN285

THE DEPUTY PRESIDENT: To the extent that it's in an agreement I'm not sure that we need to, but look, if you want to I'm happy to accept it.

PN286

MR MEAD: Perhaps marked for information? Because it may be relevant to the submissions that are made - - -

PN287

THE DEPUTY PRESIDENT: Look, if that's the case I'll mark it as an exhibit. So that is the AMWU and Simplot Australia Pty Ltd National Collective Agreement 2011 - 2014. It is an extract and includes the table of contents and page 76 from that agreement, which is the Ulverstone remuneration rates, will be known as exhibit R1.

EXHIBIT #R1 EXTRACT OF AMWU AND SIMPLOT AUSTRALIA PTY LTD NATIONAL COLLECTIVE AGREEMENT 2011 - 2014 COMPRISING THE TABLE OF CONTENTS AND PAGE 76 FROM AGREEMENT

PN288

MR MEAD: Thank you, your Honour.

PN289

THE DEPUTY PRESIDENT: All right, we'll adjourn for 10 minutes while you make those inquiries, and if you can let my associate know?

PN290

MR MEAD: May it please.

SHORT ADJOURNMENT [11.01 AM]

RESUMED [11.19 AM]

PN291

THE DEPUTY PRESIDENT: Please be seated. Could I just get you to confirm the spelling of your surname?

PN292

MS KASHMIRIAN: Yes, of course. It's K-a-s-h-m-i-r-i-a-n.

PN293

THE DEPUTY PRESIDENT: Thank you, Ms Kashmirian.

PN294

MS KASHMIRIAN: Your Honour, I'll be taking Simplot's witnesses through the rest of the day.

PN295

THE DEPUTY PRESIDENT: Thank you.

<PETER RODNEY HARDMAN, SWORN [11.19 AM]

EXAMINATION-IN-CHIEF BY MS KASHMIRIAN [11.20 AM]

PN296

MS KASHMIRIAN: Mr Hardman, can you please repeat your full name for the Commission?‑‑‑Peter Rodney Hardman.

PN297

Can you please state your position with Simplot?‑‑‑I'm agricultural services business development manager.

PN298

Have you prepared a witness statement in these proceedings?‑‑‑Yes, I have.

PN299

Do you have a copy of that statement with you?‑‑‑I've got a copy here, yes.

PN300

Mr Hardman, can you tell the Commission if the statement that you have in front of you is signed?‑‑‑It is signed.

PN301

And is it dated?‑‑‑It is dated.

PN302

What's the date of that statement?‑‑‑26 August 2015.

PN303

Mr Hardman, are there any changes that you would like to make to your changes?‑‑‑There are two changes and one is in paragraph 7, which reads at the moment, "There are two main operations at Ulverstone site". I'd like to include the words:

PN304

There are two main operations at Ulverstone field service at the Ulverstone site.

PN305

So your Honour, I think now the first sentence of para 7 should read:

*** PETER RODNEY HARDMAN XN MS KASHMIRIAN

PN306

There are two main operations for Ulverstone field service at the Ulverstone site.

PN307

Is that correct?‑‑‑That's correct.

PN308

Can we make that amendment, your Honour?

PN309

THE DEPUTY PRESIDENT: Yes.

PN310

MS KASHMIRIAN: Was there any other changes you'd like to make?‑‑‑There's also one on paragraph 28, about three sentences in, beginning, "In light of this increased responsibility". It should read:

PN311

In light of this increased responsibility, Stephen was initially paid a leading hand allowance and then, after a period of three or four years, Stephen's rate was increased to F3

PN312

So just to confirm that, Mr Hardman, you'd like that sentence to read:

PN313

In light of this increased responsibility, Stephen was initially paid a leading hand allowance and then, after a period of three or four years, Stephen's rate was increased to an F3.

PN314

Is that correct?‑‑‑Yes.

PN315

Could we also make that amendment, your Honour?

PN316

THE DEPUTY PRESIDENT: Yes. Are they the only ones?‑‑‑Yes.

PN317

Any objections, Mr Nguyen?

PN318

MR NGUYEN: Your Honour, we don't object, by I need to receive instructions about this new evidence that Simplot wishes to introduce into the proceedings and get instructions about what the circumstances from Mr Hind's perspective about it.

PN319

THE DEPUTY PRESIDENT: Is Mr Hind still here?

*** PETER RODNEY HARDMAN XN MS KASHMIRIAN

PN320

MR NGUYEN: I think he's just left, but we can call him back and then perhaps we might have to get him to come back up.

PN321

THE DEPUTY PRESIDENT: Yes. Perhaps if you might be able to ring Mr Hind and just let him know that at some stage, probably in the next half an hour, you'll need to speak to him, thank you. I'll give you a short adjournment to be able to do that.

PN322

MR NGUYEN: Thank you, your Honour.

PN323

MS KASHMIRIAN: Mr Hardman, with those two changes having been made to your statement, is the information in your statement true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.

EXHIBIT #R2 WITNESS STATEMENT OF PETER RODNEY HARDMAN

PN324

MS KASHMIRIAN: Your Honour, I'd like to ask Mr Hardman a few questions, if I may, in relation to his statement and exhibit just to seek further clarification for the Commission, if that's okay.

PN325

THE DEPUTY PRESIDENT: Yes.

PN326

MS KASHMIRIAN: Mr Hardman, can I ask you to please turn to paragraph 28 of your statement? This is in relation to the changes that you've just made today in relation to that particular sentence. So that sentence now reads:

PN327

In light of this increased responsibility, Stephen was initially paid a leading hand allowance and then, after a period of three or four years, Stephen's rate was increased to F3.

PN328

What was Stephen's rate prior to that increase?‑‑‑Prior to the increase, he was on an F2 rate, which is what most of the process operators are in field service.

PN329

Are you aware of any other process operators in field services who are on the F3 rate?‑‑‑There's no other process operators in field service that are on the F3. There's some F4s, as in team leaders, but no F3s.

*** PETER RODNEY HARDMAN XN MS KASHMIRIAN

PN330

Could I ask you to go to the bottom of that page, Mr Hardman, to paragraph 33? Could you please read out the last sentence for the Commission?‑‑‑

PN331

I told Phil O'Keefe about my concerns that the employees may not do the work and, given we were going into potato season, Phil made a decision to keep the status quo, look into how the error occurred and rectify it for the next season.

PN332

In that second last line, Mr Hardman, you use the words, "status quo". What do you mean by that?‑‑‑In this particular instance, it means that we would keep the rate of pay that we were paying the guys that were working (indistinct), maintain that rate of pay until we looked at how the error occurred and then rectify it for the following season.

PN333

Mr Hardman, can I ask you now to turn to exhibit 1 of your statement? Can you please explain to the Commission what this document is?‑‑‑This is a position description for the field service process operators. This is the latest iteration of the position description. Whilst I've been at the company for 20 years, we've had a number of position descriptions evolve over that period of time. This is the latest, but all of the activities are in this position description but also in the previous iterations of it as well.

PN334

Are you aware of whether this position description applies to the field service operators that work onsite?‑‑‑It applies to all field service operators.

PN335

So when you say all field service operators, what are you referring to?‑‑‑They call them process operators, but it's the operators based in field service that are required to unload potatoes, load potatoes and work in that side of the business.

PN336

Can I ask you now to turn to the second last page of that position description? You'll see on that page that the last category says, "operate a unit of production equipment". Have you got that?‑‑‑Yes.

PN337

Can I ask you to please read the three last dot points for me?‑‑‑

PN338

Operate tractor, quad bike, bobcat as required. Maintain an understanding of potato storage and unloading areas to obtain samples. Hold a current motor vehicle licence.

*** PETER RODNEY HARDMAN XN MS KASHMIRIAN

PN339

Mr Harden, why would a field services employee need to hold a current motor vehicle licence?‑‑‑We have a number of mobile equipment onsite and also at our offsite stores. They include forklifts, bobcats, quad bikes, listed in this PD, but we now use what we call a mule, which is a side-by-side vehicle, for collecting samples. It has a carrying capacity more so than the quad bike. But the reason for the licence is we need licensed people to operate this equipment because they're registered. Some of them are fully registered, some of them are re-registered, but they are required to go across the road at Ulverstone, which is a public road, so they need a licence. I believe they also need a motor vehicle licence to drive a forklift as well.

PN340

Mr Hardman, can I ask you now to turn to your second exhibit, which is exhibit PH2? Can you explain to the Commission what this document is and who the document applies to?‑‑‑This was a document that was developed as a result of having a number of offsite storage facilities and we needed a person that was operating there as a process operator to take added responsibility, in that they probably managed two or three, maybe four people. And we developed this position description to cover that person.

PN341

So Mr Hardman, an employee who is covered by this second position description in exhibit PH2, is this the complete list of their duties contained in this document?‑‑‑This really covers the added responsibility they have to manage the people. They're also required to operate under the process operator position description as well, which means they still do the day to day, on hand type of activities, but also just to cover off on managing additional staff.

PN342

So when you say the day to day, on hand activities, where are those duties covered off?‑‑‑They're covered off on the process operators position description.

PN343

And just to be clear, that was the document, your exhibit 1?‑‑‑Exhibit 1, yes.

PN344

Okay, thank you. Thank you, your Honour.

PN345

THE DEPUTY PRESIDENT: Mr Nguyen, would you like a short adjournment?

PN346

MR NGUYEN: That's right, yes, your Honour. If we can have an adjournment now so I can have instructions on the additional - - -

PN347

THE DEPUTY PRESIDENT: Okay. How long do you think you will need?

PN348

MR NGUYEN: Half an hour.

PN349

THE DEPUTY PRESIDENT: Half an hour?

*** PETER RODNEY HARDMAN XN MS KASHMIRIAN

PN350

MR NGUYEN: Twenty minutes.

PN351

THE DEPUTY PRESIDENT: All right. I will give you until 10 to, and if there's any issue with that you'll let my associate know.

PN352

MR NGUYEN: Thank you, your Honour.

PN353

THE DEPUTY PRESIDENT: Thank you. We will stand adjourned.

<THE WITNESS WITHDREW [11.32 AM]

SHORT ADJOURNMENT [11.32 AM]

RESUMED [11.55 AM]

<PETER RODNEY HARDMAN, RECALLED ON FORMER OATH [11.55 AM]

CROSS-EXAMINATION BY MR NGUYEN [11.55 AM]

PN354

MR NGUYEN: Mr Hardman, can I take you to paragraph 17 of your statement? You make a reference in that paragraph to PH1, which is the position description for Ulverstone production centre for process operators. Can I ask you about that position description? Were you involved in putting together that position description?‑‑‑I would have been, yes.

PN355

Do you know approximately when that position description was put together?‑‑‑As I said, there is a number of position descriptions developed over a period of time. This would have been the latest one. I guess they had different formats all the way through that period of time. This was the latest format. Yes, I would have had some input into them all the way through.

PN356

Do you know approximately the date when this position description, the one that you attached to your statement, was finalised?‑‑‑No, I don't.

PN357

Do you have an approximate time?‑‑‑It could have been something like probably 10 years ago.

PN358

So around 2005?‑‑‑Yeah, probably around there.

*** PETER RODNEY HARDMAN XXN MR NGUYEN

PN359

Do you know if it was shown to any employees?‑‑‑I'm not aware of it being shown, but it would have been available.

PN360

Are you aware of how it might have been made available to employees?‑‑‑I guess, when you look at it, a lot of them weren't overly concerned with what was in the PD at that stage and they would have been made available if they had gone to the HR manager. It would have been available through that means.

PN361

So only if they asked for it?‑‑‑It would have reckoned so, yes.

PN362

Are you aware of any employees asking for the position description?‑‑‑No.

PN363

And you never provided a copy to any of the employees?‑‑‑Not that I'm aware of.

PN364

The position description applies to both onsite and offsite employees, doesn't it?‑‑‑Yes, that's right.

PN365

If I can take you to the first page of the position description, the last dot point:

PN366

Liaise with the feeders when reclaiming raw material from storage for the plant.

PN367

That's conducted onsite, isn't it?‑‑‑That liaising with the feeders now is done by the team leader and I'd imagine that quite a few of the field service process operators wouldn't have had that liaison with the feeders. The feeders would be liaising with the team leader.

PN368

THE DEPUTY PRESIDENT: What about in 2005, Mr Hardman, roughly when you think it was created?‑‑‑Yes, that would have been the case then. You would have had a team leader right through that process.

PN369

So that's done by the team leader?‑‑‑That is done by the team leader, yes.

PN370

MR NGUYEN: And that's onsite?‑‑‑The feeders are onsite, yes.

*** PETER RODNEY HARDMAN XXN MR NGUYEN

PN371

If I can take you now to the next position description? Were you part of putting together this position description, the one that's headed, "Position Description Field Services Offsite Storage Leading Hand"? It's four pages long?‑‑‑In conjunction with the superintendant that was appointed around about that time, yes, I would have had some input into it.

PN372

Do you know when it was finalised?‑‑‑I don't know the exact date. There's no date on it. I would imagine it would have been about 2008/2009 or somewhere in that area probably.

PN373

Was it shown to any employees, the final document?‑‑‑This document would have been shown to the guys that we wanted to take on that role as the leading hand.

PN374

And you would have asked them to sign the document?‑‑‑I'm not sure. I can't comment on that. I don't believe at that stage we were getting people to sign position descriptions at that stage.

PN375

Can I take you to the last page? There's a place at the bottom of the position description for the incumbent and the manager to sign. Do you know why that would have been included in the position description?‑‑‑I'm not sure.

PN376

You said that you think that it might have been shown to the employees who were to fill the position. How do you come to understand that?‑‑‑It was an increase in their responsibilities and we would have wanted them to have a reasonable understanding of what we expected of them.

PN377

But you don't know for certain whether or not it was shown to the employees?‑‑‑I haven't got exact dates or anything in regard to showing them that, but I'm pretty sure that we did show them.

PN378

Do you have a recollection of showing it to employees?‑‑‑I do have a recollection of showing it to the two or three people that were in that position, yes.

PN379

And who were those people?‑‑‑It would have been Laurie Marshall. Laurie Marshall I know for sure. He would have had some responsibility there. And Robert Marshall, who didn't go offsite very often, but he was one of the leading process operators there that would have been considered for this position.

PN380

Anyone else?‑‑‑Not that I can recollect.

PN381

So Laurie Marshall and Robert Marshall and no other employees that you recall were considered for the position?‑‑‑Not that I recall.

*** PETER RODNEY HARDMAN XXN MR NGUYEN

PN382

Can I take you to paragraph 29 of your statement? You indicate in your statement that the position description applies to Stephen Hind. Is it correct that you don't recall providing the position description to Stephen Hind?‑‑‑You must remember that we did have a change of leadership in the field services team at that particular time. Previous to that I'd been operating as the agricultural manager and the team leader answered directly to me. In that time, we've put a superintendant in place. That superintendant, the initial one, was a guy called Rod Dobell. He retired and was replaced by a guy called Phil Guard, who's still there. And a lot of that day to day management of the receivable team was taken out of my hands and put in the hands of a superintendent. So I can't comment as to whether Rod Dobell at the time spoke with Stephen Hind. But Stephen Hind, at that time, was receiving a leading hand rate for the time that he was managing people at Parattah.

PN383

So how did you become aware that the position description applied to Stephen Hind?‑‑‑I don't quite follow your question because he was already acting as a leading hand in that area.

PN384

If I can take you now to paragraph 32, Mr Hardman? It says there that:

PN385

I recall informing Stephen of this error and that the local union delegates, Clinton Keogh and Wally Mosko, warmed up all of the troops and the whole team was aware of what was happening and the whole team was telling us that we couldn't change it because the error had been going on for many years.

PN386

Do you recall the exact discussion that occurred when you informed Stephen that the payment was changing?‑‑‑As far as the direct discussion that I had with Stephen, no, I don't remember that, but it would have been possibly with Rod Dobell and Stephen. But I do quite clearly remember the rest of the team being aware of we'd had that discussion and the comments that they were making back to me that we couldn't change it.

PN387

They wouldn't have used the word, "error" would they?‑‑‑I can't remember their exact wording, but they used the comments that we'd been making that payment for that period of time and we couldn't change it, even though they knew by that time that it was in the award that we didn't pay overtime rates for travelling.

PN388

So the use of the word, "error", that's your word?‑‑‑It was probably a word that was used throughout by a number of us that were involved in this payment that we were making to the process operators.

*** PETER RODNEY HARDMAN XXN MR NGUYEN

PN389

But that wouldn't have been a word that you would choose to use?‑‑‑Whether it's error or oversight, it probably doesn't matter much. You've got to remember that 1999/2000 was the first time that Simplot had actually employed people offsite. It was when we were going into having additional storage offsite and that was the first instance that we'd done that. Previous to that, all of our guys had either worked onsite at Ulverstone or onsite at Scottsdale, when we had the plant at Scottsdale, so none of these guys were required to travel offsite for anything. This was the first time that this had happened. We invited Stephen to fill that role, he agreed to it, and I guess it was an oversight on our part that we paid them a rate that wasn't in agreement with the award.

PN390

Can I take you to paragraph 33? The last sentence, where you say:

PN391

Phil made the decision to keep the status quo, look into how the error occurred and rectify it next season.

PN392

Do you remember what the conversation was that you had at that time?‑‑‑I'd had a number of discussions with Phil because Phil was my manager. We'd had a number of discussions on how we'd manage it at the time. We decided because we were heading into the season that we couldn't disrupt the harvest and the decision was made that we'd maintain the current payment. So we looked into how it happened and then rectified for the next season, or, when the next NCA was agreed upon.

PN393

Did you ever communicate to employees that you were going to visit the decision?‑‑‑We made it quite clear at the time that we were looking into it, yes.

PN394

And how did you make it clear?‑‑‑Just by saying that we will maintain our current payment and it will be reviewed.

PN395

Who did you say that to?‑‑‑I said that to - I think Phil Guard was the superintendant at that time and Phil would have relayed it on to the guys downstairs and to probably the union reps at the time.

PN396

But you're not aware if Phil Guard did, in fact, rely that information to the employees?‑‑‑Phil's a very good employee and he does take instructions well.

*** PETER RODNEY HARDMAN XXN MR NGUYEN

PN397

I'll just take you back to the use of the word, "error". I didn't get a clear answer from you about whether or not that's your word that you would use. Did you have any assistance in putting together this statement?‑‑‑I made a comment on questions I was asked and the flow of events and that word is a word that I would have used at the time. When you look back, it may well have been an error on my part that we didn't look at the award and make the decision that we'd pay only a single rate for travel down there. If I'd been more aware of what was in the award, which was something that I must admit I didn't read fully - it's a fairly comprehensive document and as I say, it was something that we'd just started off in field service. It was a brand new activity and it was either an oversight or an error. Those words, oversight or error, it doesn't matter which one you use.

PN398

Did you use the word, "error" at the time?‑‑‑I don't think I used any word at the time.

PN399

MS KASHMIRIAN: Objection, your Honour. The witness has been asked a number of times by Mr Nguyen about the use of "error" and he has indicated in his evidence that it wasn't the word that he used.

PN400

THE DEPUTY PRESIDENT: Yes. His evidence was that that was his instruction, Mr Nguyen.

PN401

MR NGUYEN: Thank you, your Honour.

PN402

THE DEPUTY PRESIDENT: Before you get up for re-examination, I've just got a question for you, which sits nicely with where you just finished, Mr Hardman. You said that 1999/2000 was the first time that you had people working offsite from either Ulverstone or Scottsdale?‑‑‑That's correct.

PN403

And that there was an offer to Stephen of the position and he accepted it. Then you went on to talk about your oversight not to pay in accordance with the award. What I just wanted to ask you about was when that discussion was had with Stephen, and what's not clear in the evidence that's been led so far, is when Stephen was first staying at the Cressy Pub, what was he being paid when he travelled from home to the Cressy Pub?‑‑‑I guess there's a bit of a history in all of that, if I may?

*** PETER RODNEY HARDMAN XXN MR NGUYEN

PN404

Yes, please?‑‑‑When we first discussed the arrangements with Stephen to go down there, he decided that he'd leave from home because he only lives around the corner from the factory. We gave him a vehicle to travel and the initial arrangement was that he would travel from home to the store, either on Sunday night or Monday morning, and that was his choice. We allowed him and provided him with full accommodation at the Cressy Hotel for the duration and he travelled from the Cressy Pub down to the store every morning. The arrangement was, and I can clearly remember telling him, that we'd pay him from the time he left the Cressy Pub to the time he got back at night, that the publican would provide him with a meal or a late meal, because it was quite often after the normal mealtime for the pub. He also got a pretty hearty lunch cut for him and then he also had breakfast. Stephen, after a while, decided that he'd like to travel home through the week and that was no problem to us. We allowed that. I'm not aware of what he was paid in remuneration to travel home, but I guess it would have been paid at overtime rates, whatever they were, with the hours that he worked. Then it got to a stage where he wanted to travel more often and I didn't have a problem with him travelling, but I kept commenting to him, "Just make sure that you're not working too many long hours and the travel doesn't add to those long hours and we've got a fatigue management arrangement" and that he really manages his fatigue and that he doesn't overdo it. It got to the stage where I guess Stephen wanted to travel all the time. I didn't have a problem with that, but there was always the opportunity for him to stay at Cressy. He occasionally stopped with a mate that he had down there because they used to go fishing together I think after work and that type of stuff, and a few other arrangements he had with his mates down there. He sort of became part of the community down there to a certain extent, because he spent so much time down there. From a company point of view, if he wanted to travel, he could travel, and if he wanted to stay, he could stay.

PN405

So from the first conversation that you had with him, where he was then going to travel down, and you provided the accommodation and the ute, et cetera, and from the time he started and finished at the pub were considered work hours?‑‑‑Yes.

PN406

But do you have a recollection of what Mr Hind was going to be paid when he left home and drove to the pub on Sunday night or Monday morning?‑‑‑That wasn't discussed with him, but I can only assume that he was paid.

PN407

So it wasn't discussed, is your evidence?‑‑‑No.

PN408

MR NGUYEN: Sorry, your Honour, I did fail to put to Mr Hardman the statement in Mr Hind's second statement about the conversation that they had, but I think you've canvassed that question. But in his answer, Mr Hardman, you didn't finish your sentence. What were you assuming that Mr Hind was being paid when he drove from home to Parattah?

PN409

THE DEPUTY PRESIDENT: To Cressy, you mean?

PN410

MR NGUYEN: No, when he didn't stay at the Cressy and he was at home and went straight to Parattah from home. What were you assuming at that time that he had been paid when you agreed to that?‑‑‑Look, as I said, I wasn't aware of the clause in the award and I assume that he was being paid at penalty rates for that travel. That's basically it.

*** PETER RODNEY HARDMAN XXN MR NGUYEN

PN411

When you say penalty rates, you mean that the travel time was included in the calculation of his hours of work for the purpose of - - -?‑‑‑Yes. I never saw any of his timesheets. That was up to our guy that does our Kronos or our pay slips. I didn't see any of Stephen's pay slips at all. Kerry Beard was the guy. He's our weighbridge operator. He operates our Kronos or our employee payment system. I didn't see any of that. He wasn't, that I'm aware of, of the single rate for travel, so he just put it in as normal rates. It was the same for the guys that just travelled locally out to the fourth store, which is only a quarter of an hour, 20 minutes away. They would have just put in the normal pay. A lot of these guys didn't clock in because they were travelling from home, so we didn't ask them to have to go to the factory to clock in because it was out of their way, depending on which store we were doing. If they had to go past the factory, then they clocked in. If they lived on the store side of the plant, then we relied on them just to hand a slip in. I guess they would have put in, like Stephen, for instance, a 5.30 start and a 7.30 finish.

PN412

But when you made the decision to allow him to travel from home instead of staying at the Cressy Pub, you were under the assumption that he would be paid at the penalty rates?‑‑‑That just happened I guess. There was no discussion in regard to any of the payments because he wanted to travel all the time. We never discussed that. It was just something that Stephen did. I can assume there was no discussion between Stephen and the team leader or Stephen and the superintendant. It just happened. There was some discussion at some time, I remember I got involved, about the cost of travel versus the cost of accommodation, but at that time, we still had the vision for him to stop there, regardless if it cost more than the travel, because I was aware of working long hours six days a week can put a bit of pressure on people's fatigue.

PN413

There was no discussion, but when you made the decision, you assumed that he was being paid the penalty rate to travel from home to Parattah.

PN414

I assumed he was being paid as whatever the arrangements were.

PN415

You indicated before that you had an understanding of what that was.

PN416

MS KASHMIRIAN: Objection, your Honour. I think the witness's evidence was that he assumed that this was occurring. He assumed that Mr Hardman was being paid. He wasn't aware of the actual arrangements.

PN417

THE DEPUTY PRESIDENT: I've got the words, "assumed he was being paid penalty rates", yes. Would you like to rephrase the question, Mr Nguyen?

*** PETER RODNEY HARDMAN XXN MR NGUYEN

PN418

MR NGUYEN: At the time that you made the decision, you assumed that he was to be paid penalty rates. Is that right?‑‑‑Yes. As I said earlier, I wasn't aware of any other clauses in the awards and I guess I can assume that he was paid, not award rates, but penalty rates for that travel.

RE-EXAMINATION BY MS KASHMIRIAN [12.26 PM]

PN419

MS KASHMIRIAN: Thank you, Mr Hardman. I've just got a couple more questions for you. Mr Hardman, at the beginning of cross-examination, you'll recall that Mr Nguyen asked you about the position description and he asked you to read the last dot point on the first page. I'll just get you to turn to that for me.

PN420

THE DEPUTY PRESIDENT: That is attachment PH1?

PN421

MS KASHMIRIAN: That is, your Honour?‑‑‑Yes, I remember that.

PN422

Your answer to the question was that the liaison with the feeders was done by the team leader. Who was the team leader that you were referring to there?‑‑‑The team leader initially would have been Wally Moscoe. And then Wally was transferred to a feeder and then that team leader for a number of years now has been Leon White.

PN423

The next question I want to ask you, Mr Hardman, is in relation to the question that Mr Nguyen asked you in relation to paragraph 29 of your statement. Your evidence was that Stephen Hind at the time was receiving a leading hand rate for the time he was managing casuals at Parattah. Can you recall giving that evidence?‑‑‑Yes.

PN424

When you refer to leading hand rate, what are you referring to?‑‑‑There is a clause in the award that allows a payment of a leading hand rate to the value of, I'm not sure, so many cents, up to a dollar per hour I think. I can't remember that exactly. What we did with Stephen at the time, and this was made quite clearly initially to him, that as an incentive to go down to Parattah, we'd pay him a leading hand rate to perform that duty whilst he was down there managing people. That managing people occurred during the filling of the stores, through to mid-March through to end of May or however long it took. Then, it also happened from the end of June through until the stores were empty, sometime in December. We did that for a couple of years and then we said to Stephen we'd put him onto F3 for the work he was doing, the responsibilities.

*** PETER RODNEY HARDMAN RXN MS KASHMIRIAN

PN425

Sorry, Mr Hardman was that S3 or F3?‑‑‑Sorry, F3, for the good work he was doing. You must remember that Stephen came out of the pool of process operators to go down there and do something that he hadn't done before, or nothing that we'd done before either. And he took that role on with real vigor. You can nearly say that they were his stores. One of the jobs that that leading hand has to do is to make sure we get good quality potatoes and Stephen did a top job of that. If any truck landed in there with a poor load of potatoes, it was out straight away. No one could argue with him and he did a perfect job. Then we lifted him to F3. But I also believe that he was still paid for the time that he spent down there, that leading hand rate on top of the F3. I can't recall whether that actually happened or not, but that was part of what we thought was the arrangement. But how relevant is what we paid Stephen relevant to our argument about the travel time?

PN426

Mr Hardman, you were asked a number of questions in relation to the word, "error" and your evidence, as I understand it, and certainly your statements says that you weren't aware of the underlying award provision. At the time that you were agricultural manager, did you have authority to deviate from the award or agreement?‑‑‑Not knowingly, no.

PN427

So when you say knowingly, what are you referring to? If you had known about the underlying award clause, could you have deviated from it? Did you have the authority?‑‑‑No, I've got no authority to deviate from an award.

PN428

THE DEPUTY PRESIDENT: Just before you take a seat, Ms Kashmirian, there was just some evidence I think given by Mr Hardman that part of what he thought was the arrangements was that the leading hand allowance would still be paid on top of the F3 amount. That evidence doesn't appear anywhere else and it wasn't put to Mr Hind this morning. Is that your understanding? We need some clarification about that.

PN429

MS KASHMIRIAN: Mr Hardman, what was your direct knowledge of what Mr Hind was being paid? What do you actually know he was being paid?‑‑‑To be quite honest, I don't know exactly what he was being paid. All I do know was that we agreed to put him onto an F3 and my understanding was that he would be paid still a leading hand allowance whilst he was actually managing people.

PN430

In your evidence, my understanding from your evidence was that you initially started paying Mr Hind a leading hand allowance and some years later, in lieu of that leading hand allowance, he was bumped up to the F3 rate. Is that correct?

*** PETER RODNEY HARDMAN RXN MS KASHMIRIAN

PN431

THE DEPUTY PRESIDENT: That's a leading question, Ms Kashmirian, and it's not accurately reflected in the evidence that's been given by Mr Hardman already. We're going to need some clarification. Perhaps Mr Hardman can't give this, as to what he was paid, but I want to give you every opportunity, because he's just given some evidence which wasn't in evidence and which obviously wasn't put to Mr Hind either. So I don't know whether you want to take some instructions, an adjournment?

PN432

MS KASHMIRIAN: Yes.

PN433

THE DEPUTY PRESIDENT: Five minutes. Thank you.

<THE WITNESS WITHDREW [12.34 PM]

SHORT ADJOURNMENT [12.34 PM]

RESUMED [12.46 PM]

<PETER RODNEY HARDMAN, RECALLED ON FORMER OATH [12.46 PM]

RE-EXAMINATION BY MS KASHMIRIAN [12.46 PM]

PN434

THE DEPUTY PRESIDENT: Thank you, Ms Kashmirian.

PN435

MS KASHMIRIAN: Thank you, your Honour. There's just a few more questions I'd like to put to Mr Hardman in relation to his recent evidence.

PN436

THE DEPUTY PRESIDENT: Yes.

PN437

MS KASHMIRIAN: Mr Hardman, I refer to paragraph 28 of your statement and paragraph 28, as you amended it this morning, states that after about three or four years Mr Hind's rate was increased to F3; is that correct?‑‑‑That's right. Correct.

PN438

Okay. So for the purposes of preparing your evidence, did you have any discussions with payroll or did you review any payroll or timesheets or pay records of Mr Hind around the 2003/2004 period?‑‑‑No, I didn't.

PN439

Okay. And so is it the case that your evidence about your recollection is not based on any pay data that you reviewed?‑‑‑That's right. It's just based on recollection.

PN440

Okay. And, Mr Hardman, was it customary for you to keep a diary of, you know, day-to-day operations and discussions that you had around this time?‑‑‑My habit has been to keep a reasonable diary of things that happen. I can't find that diary relating to that period of time because it's so long ago. I used to keep them all unless I tossed them out at some stage.

*** PETER RODNEY HARDMAN RXN MS KASHMIRIAN

PN441

Okay. So you do you recall keeping a diary around and it is your custom and practice to keep a diary around?‑‑‑Yes.

PN442

But you can't find that diary?‑‑‑I can't find it. Yes.

PN443

And so did you have the benefit of referring to that diary in preparing your evidence?‑‑‑No.

PN444

Okay. Thank you?‑‑‑No.

PN445

Nothing further, your Honour.

PN446

THE DEPUTY PRESIDENT: Thank you very much. All right. Thank you very much, Mr Hardman, for your evidence. You're free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW [12.48 PM]

PN447

THE DEPUTY PRESIDENT: All right. The time is 10 to 1. I'm proposing we probably take a lunch break now and then proceed with the remaining witnesses this afternoon.

PN448

MS KASHMIRIAN: That sounds fine. Thank you, your Honour.

PN449

THE DEPUTY PRESIDENT: Thank you.

SHORT ADJOURNMENT [12.49 PM]

RESUMED [2.00 PM]

PN450

MS KASHMIRIAN: Thank you, your Honour. We now call Mr Kerry Beard.

PN451

THE DEPUTY PRESIDENT: Thank you.

PN452

THE ASSOCIATE: Could you state your full name and address, please.

PN453

MR BEARD: Kerry Charles Beard. Residential address you want?

*** PETER RODNEY HARDMAN RXN MS KASHMIRIAN

PN454

THE ASSOCIATE: Yes, please.

PN455

MR BEARD: (Address supplied).

<KERRY CHARLES BEARD, AFFIRMED [2.01 PM]

EXAMINATION-IN-CHIEF BY MS KASHMIRIAN [2.01 PM]

PN456

MS KASHMIRIAN: Mr Beard, can you please repeat your full name for the Commission?‑‑‑Kerry Charles Beard.

PN457

And what's your position at Simplot?‑‑‑My title is harvest coordinator.

PN458

Thank you?‑‑‑For field service department.

PN459

And have you prepared a witness statement in these proceedings?‑‑‑Yes.

PN460

Do you have a copy of that statement with you?‑‑‑Yes.

PN461

Can you let the Commission know if that copy that you have with you is signed?‑‑‑Yes, it is.

PN462

Is it dated?‑‑‑Yes.

PN463

And what's the date on that statement?‑‑‑26 August 2015.

PN464

Thank you. Mr Beard, are there any changes that you wish to make to your statement?‑‑‑Just to one of the attachments which was I think it's an exhibit.

PN465

So the first exhibit?‑‑‑Yes. That's right.

PN466

Yes. If you look along the top section there you'll come across two I think one called Wings and one called Lindsays.

PN467

Okay. So this is the first table?‑‑‑Yes.

*** KERRY CHARLES BEARD XN MS KASHMIRIAN

PN468

And we're talking about the fourth column from the right?‑‑‑That's right.

PN469

Yes?‑‑‑Fourth from the second.

PN470

From the second-last?‑‑‑Yes. That would be three hours travel time if we were using those stores.

PN471

Okay. And so where would that three hours appear in the table?‑‑‑Well, it says not applicable, "NA".

PN472

So your change is to replace that "NA" with three hours for the Wings Longford and the Lindsays?‑‑‑Yes, Bishopsbourne.

PN473

Thank you. Your Honour, if we could make those changes to that request.

PN474

THE DEPUTY PRESIDENT: Yes.

PN475

MS KASHMIRIAN: Thank you.

PN476

THE DEPUTY PRESIDENT: Any objection, Mr Nguyen? Is there any objection to that change, Mr Nguyen?

PN477

MR NGUYEN: No, your Honour.

PN478

THE DEPUTY PRESIDENT: Thank you.

PN479

MS KASHMIRIAN: Mr Beard, are there any other changes that you wish to make to your statement?‑‑‑No.

PN480

Your Honour, I'd like to tender that into evidence, please.

PN481

THE DEPUTY PRESIDENT: Thank you. That is a witness statement of Kerry Charles Beard containing three pages and 20 paragraphs dated 26 August 2015 to be known as exhibit R3.

EXHIBIT #R3 WITNESS STATEMENT OF KERRY CHARLES BEARD DATED 26/08/2015

*** KERRY CHARLES BEARD XN MS KASHMIRIAN

PN482

MS KASHMIRIAN: Your Honour, I have a few more questions that I wish to ask Mr Beard in relation to that particular exhibit. Mr Beard, can you tell the Commission how this document came about?‑‑‑Are you talking about the statement in general or the ‑ ‑ ‑

PN483

Sorry, the exhibit?‑‑‑Exhibit? Well, what I did is I went back through various Excel spreadsheets that I use at work, and just compiled that sheet. I suppose when this issue came up I went back and made a record of what areas we've stored potatoes as far back as I can go.

PN484

Okay. And so just to be clear, so you've got name at the top of that first table?‑‑‑Yes.

PN485

Can you shed a bit of light on what those names refer to?‑‑‑Well, they are various areas of stores that we've used 1997.

PN486

Okay. And so, for example, the first column has McKenners and then underneath Galler. What does McKenners refer to?‑‑‑Well, that's a farm that actually lives only five minutes from Ulverstone.

PN487

Yes. And ‑ ‑ ‑?‑‑‑We used this store in 1998 and haven't done since.

PN488

Okay. And so then if you look at the body of that table you have ticks in certain columns and rows?‑‑‑Yes.

PN489

What do they mean?‑‑‑They are the stores that we've utilised on those years.

PN490

Okay. So where there's a tick the store was utilised; is that correct?‑‑‑Yes, by Simplot.

PN491

Thank you?‑‑‑Yes.

PN492

And then you've got so, if you look at Parramatta Creek?‑‑‑Yes.

PN493

In the 2010 row it's got "H-I-R-T-A-G". What does that mean?‑‑‑That means we Simplot themselves did not store potatoes there but one of our farmers did, Hirt Agri.

*** KERRY CHARLES BEARD XN MS KASHMIRIAN

PN494

Thank you. And then you've got a second table underneath that first one, and that's the Scottsdale. It says there, "Scottsdale, Scottsdale" and "Bridport". What does that table refer to?‑‑‑Yes, they're stores again that we've used in that area. Scottsdale as you can see is used every year.

PN495

Yes?‑‑‑And the other three stores have been used by Simplot on that one occasion, that 2004.

PN496

Okay. And so that second table, do the Ulverstone employees attend those sites and perform work?‑‑‑No.

PN497

Okay?‑‑‑That's done by people that live in that area.

PN498

What about the first table?‑‑‑Yes. That's done by people at Ulverstone and casual workforce. Some are casual workforce in the Longford area. And some are Ulverstone labour.

PN499

So we've dealt with the first two. And then you've got another little table at the bottom which has date ranges and then a summary of what was paid and then a description at the end?‑‑‑Yes.

PN500

Mr Beard, how did you collate that particular table down the bottom?‑‑‑I went back into Kronos. I know Kronos only goes back to 2004, but so I went back to Kronos and I looked at the somebody's time card.

PN501

And whose timecard did you look at?‑‑‑Stephen Hind's. Yes.

PN502

No further questions, your Honour.

PN503

THE DEPUTY PRESIDENT: Thank you. Mr Nguyen?

CROSS-EXAMINATION BY MR NGUYEN [2.07 PM]

PN504

MR NGUYEN: Mr Beard, did you ever have a conversation with Mr Stephen Hind about how he should fill out the timesheets from when he was travelling from his home, say, out to Powranna to work?‑‑‑I don't recall having a conversation with Stephen. No. We do have a timesheet that's a little spreadsheet that we hand out to people that go offsite, but and they record their start time and their finish time, but I don't remember any conversation, no.

*** KERRY CHARLES BEARD XXN MR NGUYEN

PN505

Did you ever suggest to Mr Hind that he should put his starting time as the time that he left home?‑‑‑No. No. Just to clarify, Stephen, he cannot put his scheduled time. He's got nothing to do with schedule timing. He just records his hours that he's started and finished. So schedule time, yes, he doesn't we don't know what his schedule time was. Well, I should elaborate. Field service start time was 7 to 3.30, but in the case of the guys going offsite, we adjusted their start time to the time that they started on their timesheet.

PN506

And so did you ever have a conversation with him about what time he should put on his timesheet, as starting?‑‑‑No.

PN507

You never said to him that he should put the time that he left home when he records the time on the timesheet?‑‑‑No. We usually give what we tend to do is give them a start time at the store, so it's up to the individual to make sure that they have got time to get to that site.

PN508

Okay. So then for the period that he was paid the travelling as part of his ordinary hours for the calculation of overtime, did he record that he started, say, at 5.30 when he left home or you put that into the system?‑‑‑He recorded that he started at 5.30 or whatever.

PN509

No further questions, your Honour.

PN510

THE DEPUTY PRESIDENT: Thank you very much, Mr Nguyen.

PN511

MS KASHMIRIAN: Nothing further, your Honour.

PN512

THE DEPUTY PRESIDENT: Thank you. Thank you for your testimony, Mr Beard. You're free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW [2.10 PM]

PN513

MS KASHMIRIAN: Your Honour, the next witness is Ms Homan, and she is scheduled to arrive at half past. Unfortunately I over-estimated the time that Mr Beard might be required. That being said she's only 15 minutes away, in terms of where she is located, so perhaps I can put in a call now, if that's okay, to see if she is in the area. Yes, and perhaps I might get an indication from Mr Nguyen in relation to how long she is going to be, because I've allowed her half an hour as well.

*** KERRY CHARLES BEARD XXN MR NGUYEN

PN514

THE DEPUTY PRESIDENT: Okay.

PN515

MS KASHMIRIAN: And so that I can re-schedule Mr Guard.

PN516

THE DEPUTY PRESIDENT: Right. So who do we have left? We've got Homan, Guard, O'Keefe will be done tomorrow?

PN517

MS KASHMIRIAN: That's correct.

PN518

THE DEPUTY PRESIDENT: As will Mr Keogh. So perhaps if Mr Guard can just be put on notice if he can make himself available now.

PN519

MS KASHMIRIAN: Now. Yes. Thank you, your Honour. I will, yes.

PN520

THE DEPUTY PRESIDENT: Because, look, I ‑ ‑ ‑

PN521

MS KASHMIRIAN: No, I can check that.

PN522

THE DEPUTY PRESIDENT: ‑ ‑ ‑anticipate that Ms Homan is probably not going to take very long.

PN523

MS KASHMIRIAN: Correct.

PN524

THE DEPUTY PRESIDENT: On the basis of the content of her witness statement. So, look, did she say would be here by 2.30?

PN525

MS WILSON: She did.

PN526

THE DEPUTY PRESIDENT: Yes, she did. Look, it's ‑ ‑ ‑

PN527

MS WILSON: She's very organised. I think she'll probably be here a bit earlier.

PN528

THE DEPUTY PRESIDENT: Yes. Look, it's almost a quarter past 2 now anyway, so, look, I think we'll just adjourn through until 2.30. If she's here any earlier if you can let my Associate know, and we'll be in.

*** KERRY CHARLES BEARD XXN MR NGUYEN

PN529

MS KASHMIRIAN: Yes. Thank you, your Honour.

PN530

THE DEPUTY PRESIDENT: Okay. We will stand adjourned.

SHORT ADJOURNMENT [2.12 PM]

RESUMED [2.32 PM]

PN531

MS KASHMIRIAN: Thank you, your Honour. The respondent now calls Ms Janet Homan.

PN532

THE DEPUTY PRESIDENT: Thank you.

PN533

THE ASSOCIATE: Would you state your full name and address, please.

PN534

MS HOMAN: Janet Mary Homan.

PN535

THE ASSOCIATE: And your address?

PN536

MS HOMAN: (address supplied)

<JANET MARY HOMAN, AFFIRMED [2.32 PM]

EXAMINATION-IN-CHIEF BY MS KASHMIRIAN [2.32 PM]

PN537

MS KASHMIRIAN: Ms Homan, can you please state your full name again for the Commission?‑‑‑Janet Mary Homan.

PN538

And your position at Simplot?‑‑‑Payroll officer.

PN539

Have you prepared a witness statement in this matter?‑‑‑I have.

PN540

Do you have a copy of that statement in front of you?‑‑‑I do.

PN541

Can you tell the Commission if that statement is signed?‑‑‑Not my copy.

*** JANET MARY HOMAN XN MS KASHMIRIAN

PN542

Your copy is not?‑‑‑No.

PN543

Your Honour, may I hand up a signed copy of Ms Homan's statement to her?

PN544

THE DEPUTY PRESIDENT: I have a signed copy.

PN545

MS KASHMIRIAN: You have a signed copy?

PN546

THE DEPUTY PRESIDENT: Yes.

PN547

MS KASHMIRIAN: Thank you.

PN548

THE DEPUTY PRESIDENT: Yes.

PN549

MS KASHMIRIAN: Ms Homan can you just have a look at that and confirm that that is your copy of your statement and that is your signature on the last page?‑‑‑I can confirm that, yes.

PN550

And is that copy that you've just been handed dated?‑‑‑It is.

PN551

What's the date of that?‑‑‑25th of the 8th 2015.

PN552

Are there any changes that you would like to make to your statement?‑‑‑I would. In paragraph 12 it reads, "Either Leanne or I queried the travel time comment with Phil." I would like to add the words, "and HR" in there, please.

PN553

Your Honour, if we could make that changes.

PN554

THE DEPUTY PRESIDENT: BY "HR", you mean human resources?‑‑‑I do.

PN555

Thank you.

PN556

MS KASHMIRIAN: Are there any other changes that you wish to make to your statement?‑‑‑No.

PN557

With that change, is the information in your statement true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.

*** JANET MARY HOMAN XN MS KASHMIRIAN

PN558

Your Honour, I wish to tender that statement into evidence.

PN559

THE DEPUTY PRESIDENT: Thank you. The statement of Janet Homan containing two pages and 15 paragraphs, dated 25 August 2015 to be known as exhibit R4.

EXHIBIT #R4 STATEMENT OF JANET HOMAN DATED 25/08/2015

PN560

MS KASHMIRIAN: Your Honour, there are two points in Ms Homan's statement that I wish to ask further questions on, if I may.

PN561

THE DEPUTY PRESIDENT: Yes.

PN562

MS KASHMIRIAN: Ms Homan, can I ask you to please turn to paragraph 8 of your statement?‑‑‑Yes.

PN563

Would you mind reading out that paragraph for the Commission, please?‑‑‑"One the time card hours are authorised and checked, they are processed and transferred into the Preceda payroll system. An employee identification number differentiates each employee. The payments owing to each employee are calculated in Preceda and are allocated to the employee's nominated bank accounts."

PN564

And when you refer to payments owing to each employee, what are you referring to there?‑‑‑I mean the wages owing, including all hours plus overtime, any allowances and deductions that are due, tax payments et cetera.

PN565

So when you say allowances, what allowances are you referring to there?‑‑‑Any allowances such as - there are two different types of allowances. One lot of allowance is just paid on an ad hoc basis, so such as meal allowance or freezer allowances, for example and the other sort of allowances are leading hand allowances; allowances that we call "all purpose allowances that are paid as part of an employee's rate of pay.

PN566

So when you say "ad hoc", what do you mean by that?‑‑‑I mean just an allowance that may be due on just a one-off occasion or it may be payable every day of the week, just depending on the person's job.

PN567

Then in terms of the all purpose allowance, and I think you refer to the leading hand allowance, that it dealt with differently?‑‑‑It could - yes, that changes the employee's rate of pay, rather than showing separately on the payslip.

*** JANET MARY HOMAN XN MS KASHMIRIAN

PN568

Thank you. And in terms of the all-purpose allowance, are you aware of any allowances that employees are paid that do not appear in the award or agreement?‑‑‑Yes.

PN569

Can you name a few of those for us?‑‑‑Dual-trade allowance and forklift allowance.

PN570

Thank you. No further questions, your Honour.

PN571

THE DEPUTY PRESIDENT: Thank you. Mr Nguyen.

CROSS-EXAMINATION BY MR NGUYEN [2.37 PM]

PN572

MR NGUYEN: Ms Homan, my names is Mr Nguyen from the AMWU. Just turn to paragraph 12 of your statement. You indicated that you queried the travel time comment with the Phil and HR. Did you receive a response from Phil or HR to your query?‑‑‑I'm not sure who actually did this, but one of us was advised, either Leanne or myself was advised at that time to pay the travel time as travel time. So single time payment.

PN573

So you don't recall who advised you?‑‑‑I don't.

PN574

Were you advised that the issue was going to be revisited?‑‑‑At that stage, I don't recall that we were advised that at that stage, no.

PN575

Did you communicate to any of the employees affected when you changed - - -?‑‑‑Not personally.

PN576

Can I take you to paragraph 14 now, of your statement?‑‑‑Yes.

PN577

This says, "After this error was discovered, travel time was paid on three occasions in 2012 for the periods 27 August," et cetera and then at 3 March is says, "However, this was reversed the following week and then it reverted back to how it was before the error was discovered. Do you remember how you were informed that which you reverted back?‑‑‑Yes, I was advised by email.

PN578

And who advised you?‑‑‑I believe it was Leah McRae, the HR officer at that time.

*** JANET MARY HOMAN XXN MR NGUYEN

PN579

Do you recall what was in that email?‑‑‑Do I recall what was in the email? Only that we needed to go back to the way it was before and pay it was overtime, rather than single-time payments and to make back payment for the week before where we had processed it as travel time.

PN580

So there was nothing in the email about the issue being revisited?‑‑‑Not that I recall.

PN581

Nothing further, your Honour.

PN582

THE DEPUTY PRESIDENT: Thank you very much for your testimony. You are free to go now, Ms Homan?‑‑‑Thank you.

<THE WITNESS WITHDREW [2.40 PM]

PN583

MS KASHMIRIAN: Your Honour, our next witness is Mr Phil Guard. He was on his way here when we spoke to him and I've just had Ms Wilson duck out to see if he's arrived.

PN584

THE DEPUTY PRESIDENT: Thank you very much.

PN585

THE ASSOCIATE: State your full name and address, please?--

PN586

MR GUARD: Philip Alan Guard (address supplied)

<PHILIP ALAN GUARD, AFFIRMED [2.24 PM]

EXAMINATION-IN-CHIEF BY MS KASHMIRIAN [2.42 PM]

PN587

MS KASHMIRIAN: Mr Guard, can you please your full name for the Commission?‑‑‑Philip Alan Guard.

PN588

Have you prepared a witness statement in these proceedings?‑‑‑Yes, I have.

PN589

Do you have a copy of that with you?‑‑‑No, I don't.

PN590

The associate will hand you one now.

*** PHILIP ALAN GUARD XN MS KASHMIRIAN

PN591

Mr Guard, can you have a look at that document that has been placed before you and confirm whether that is your statement?‑‑‑Yes, that is mine.

PN592

Is the copy you've got signed, Mr Guard?‑‑‑Yes, it is.

PN593

And the date on that document?‑‑‑25th of the 8th, 2015.

PN594

Are there any changes that you wish to make to that statement?‑‑‑No, there's not.

PN595

Is the information in your statement true and correct to the best of your knowledge and belief?‑‑‑That is correct. Yes, it is.

PN596

Your Honour, I tender that statement.

PN597

THE DEPUTY PRESIDENT: Thank you. That is a witness statement of Philip Alan Guard, containing three pages, 13 paragraphs, dated 25 August 2015 and will be known as exhibit R5.

EXHIBIT #R5 WITNESS STATEMENT OF PHILIP GUARD DATED 25/08/2015

PN598

MS KASHMIRIAN: Your Honour, if I may just take Mr Guard to a few points in this statement

PN599

Mr Guard, can you please turn to paragraph 8 of your statement? Have you got that in front of you?‑‑‑Yes, I have.

PN600

And so the third line, you refer to "Peter," who are you referring to there?‑‑‑That's Peter Hardman.

PN601

If you could go to paragraph 10 of your statement, would you mind reading out that paragraph for me?‑‑‑"Les and I informed the affected employees of the change in approximately February 2014. During the meeting, Les offered Stephen, a team leader allowance, while he was on site supervising casuals. Stephen was happy with this, as this offset some of the travelling overtime payments that were now being paid at single time."

PN602

Are you aware of what Stephen was paid prior to him receiving that team leader allowance around February 2014?‑‑‑Yes, I am.

*** PHILIP ALAN GUARD XN MS KASHMIRIAN

PN603

What was that?‑‑‑Stephen was being paid an F3 rate; that's a classification that we use back at Simplot.

PN604

So does the F3 rate reflect the duties that Stephen performs?‑‑‑I believe no it doesn't. All the other people on site that do the same work as Stephen are on an F2 rate.

PN605

So why was Stephen paid the F3 rate?‑‑‑It was something he was being paid because he'd taken on extra responsibilities when he was working offsite at the time and I believe it was seen as a type of a leading hand allowance.

PN606

Prior to February 2014, are you aware of Stephen being paid the leading hand allowance in addition to the F3 rate?‑‑‑No, I'm not.

PN607

Thank you. Mr Guard, when you say that you weren't aware of whether Mr Hind was being paid the leading hand on top of the F3, does that mean that he wasn't or it just means that you weren't aware?‑‑‑He was paid the F3 - he was paid the leading hand allowance on top of the F3 rate for the last 12 months.

PN608

Prior to that?‑‑‑No, he wasn't.

PN609

And how did you come to that understanding or when did you start in your role?‑‑‑I started in my role in 2011. So it's been just on four years now.

PN610

Yes, and so how did you come to understand that Mr Hind was paid the F3 rate.

PN611

When I first went into the role, I spoke with Mr Peter Hardman to give me an overview of the structure there in field services and he wasn't through everyone's job and he told me about Stephen Hind's rate at the time.

PN612

What did he tell you?‑‑‑That Stephen is the guy that works offsite. He has taken on extra responsibilities when he's offsite. He has three to four casuals working with him at times and therefore Peter offered him the F3 rate, and of course Stephen took it.

PN613

Are you aware of whether Mr Hinds paid that F3 rate when he only works down at Powranna or are you aware of whether he's paid it - - -?‑‑‑Yes, I'm aware. Stephen is paid that rate all the time.

*** PHILIP ALAN GUARD XN MS KASHMIRIAN

PN614

How often in a year - in a 12-month period - how often would Stephen be offsite?‑‑‑Three months maximum, between 10 and 12 weeks.

PN615

Thank you, your Honour.

PN616

THE DEPUTY PRESIDENT: Thank you. Mr Nguyen.

CROSS-EXAMINATION BY MR NGUYEN [12.48 PM]

PN617

MR NGUYEN: Thank you, your Honour.

PN618

Mr Guard, can I take you to paragraph 10 of your statement. It says there that - the second sentence style , "during the meeting, Les offered Stephen a team leader allowance while he was offsite supervising casuals and Stephen was happy with this, as it offset some of the travelling overtime payments that were now being at single time." Did you understand how much that would be offset by the team leader allowance?‑‑‑No, I did not.

PN619

Do you recall the words that Mr Murdoch actually used when he offered the - - - ?‑‑‑Not word-for-word, I don't, no.

PN620

Did you say, "Because you are not getting the travellers overtime, we are going to give you leading hand rates. What you're getting from the leading hand allowance will compensate for the loss of overtime payments. If you're going to lose anything it wouldn't be much at all. You won't lose much if anything"?‑‑‑It was something along those lines, but I don't know whether that was word‑for‑word.

PN621

So Mr Hind would have been left with the impression that the team leader allowance would compensate him for the loss of the travel time payment?‑‑‑For part of, not all of it.

PN622

But that the loss wouldn't be much?‑‑‑I'm not sure about that. I don't know.

PN623

Mr Hind's place of employment is at Ulverstone, isn't it?‑‑‑That is correct, yes.

PN624

Can I take you to paragraph 8. It says that:

*** PHILIP ALAN GUARD XXN MR NGUYEN

PN625

Around February 2013, I recall that I got the guys together for a pre-season storage meeting. My recollection of the meeting was that I spoke about the storage plan and all things to do with safety and Peter spoke about the travel payment error.

PN626

Did you ever communicate to employees about the travel payment error?‑‑‑No, Peter communicated that at that meeting with all the employees.

PN627

So you never communicated to employees about the change in the payment?‑‑‑Not that I can recall, no.

PN628

And so you never advised employees that the company would be revisiting the decision?‑‑‑That was all spoken about at that very meeting there by Peter.

PN629

Mr Hardman says that he never communicated to employees that the company would be revisiting the decision. Can I just ask you again, do you recall if he said those words in that meeting that the company would be revisiting the decision?‑‑‑No, sorry. I can't remember that, no.

PN630

So you were never present when anyone from the company communicated to employees that they would be revisiting the decision?‑‑‑Only at that meeting there when Peter spoke about it.

PN631

But he didn't say to employees at that meeting that the company would be revisiting the decision?‑‑‑I'm sorry, I don't understand the way you're putting the question across.

PN632

Do you recall if Mr Hardman said at that meeting that the company would be revisiting the decision?‑‑‑No.

PN633

You don't recall that?‑‑‑No.

PN634

And you weren't present at any time when the company advised employees that they would be revisiting the decision?‑‑‑No.

PN635

Can I take you to Mr Hardman's statement. It should be in the folder in front of you. I think it's the second or the third tab from the top?‑‑‑Peter Hardman, yes.

*** PHILIP ALAN GUARD XXN MR NGUYEN

PN636

If you flick through to the end of the statement, there's an exhibit PH1, and then if you flick past that position description, there's another position description, which has a Simplot logo at the top which is exhibit PH2. It's titled "Position description, Field Services, offsite storage leading hand"?‑‑‑So that's the back one, yes. Is that just a single-pager?

PN637

It's four pages.

PN638

THE DEPUTY PRESIDENT: So down the bottom, Mr Guard, it will say page 1 of 4 pages. Page 1/4?‑‑‑Yes.

PN639

Yes.

PN640

MR NGUYEN: Were you a part of putting together this position description?‑‑‑No.

PN641

You were not?‑‑‑No.

PN642

And did you ever provide this to any employees?‑‑‑No.

PN643

That's all, your Honour.

PN644

THE DEPUTY PRESIDENT: Thank you.

PN645

Were you aware of this, Mr Guard, this position description?‑‑‑Yes.

PN646

Thank you.

PN647

MS KASHMIRIAN: Nothing further, your Honour.

PN648

THE DEPUTY PRESIDENT: Thank you for your testimony, Mr Guard. You are free to go. That was painless, wasn't it?‑‑‑It was, yes.

<THE WITNESS WITHDREW [2.55 PM]

PN649

MS KASHMIRIAN: That's all our witnesses for today, your Honour. We intend to all Mr O'Keefe tomorrow morning.

*** PHILIP ALAN GUARD XXN MR NGUYEN

PN650

THE DEPUTY PRESIDENT: Where are we at in relation to Mr Keogh.

PN651

MR MEAD: I am happy to address the Bench - - -

PN652

THE DEPUTY PRESIDENT: Yes, thank you.

PN653

MR MEAD: The company has had discussions with the AMWU and also Mr Keogh. The position is that he will be released from duty to drive to the proceedings, deliver his evidence and return back to site for the remainder of his shift. We expect to do that, subject to your Honour's view as the first witness tomorrow morning at 10 am. So we will depose Mr Keogh and then continue with the remainder of our evidentiary case which will be Mr O'Keefe, and then I expect we will move to closing submissions if your Honour is happy with that.

PN654

THE DEPUTY PRESIDENT: Is there any appetite for us to start any earlier in the morning, at say 9.30, if Mr Keogh can be accommodated at that time?

PN655

MR MEAD: For our part, we have that appetite.

PN656

THE DEPUTY PRESIDENT: Yes. Mr Nguyen, how does that suit you?

PN657

MR NGUYEN: I will just have to check with Mr Keogh that he can attend. I don't know when he's starting work, so am not sure whether he is - - -

PN658

MS WILSON: Well before 9.30.

PN659

MR NGUYEN: Okay, so he will be at work. So I assume that should be okay.

PN660

THE DEPUTY PRESIDENT: Yes, I assume as long as he's not visiting somewhere remote, I suppose, and that timetable is back. But I would like to start earlier if we can. I think it's just a good use of time and considering today we've had a bit of a mix up with the witnesses. So it would be preferable if we can start that little bit earlier.

PN661

Can I ask, Mr Nguyen, if you can contact Mr Keogh this afternoon? At this stage we will assume we will start at 9.30, unless that ends up being an issue for time‑planning for Mr Keogh and if you could email my associate and the other side to let them know if we need to change that back to 10 o'clock.

PN662

MR NGUYEN: Yes, I will do that. Thank you, your Honour.

PN663

THE DEPUTY PRESIDENT: All right. Are there any other housekeeping issues we need to deal with today? All right. We will stand adjourned then today until 9.30 tomorrow.

ADJOURNED UNTIL TUESDAY, 22 SEPTEMBER 2015 [2.57 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

STEPHEN PAUL HIND, AFFIRMED................................................................. PN53

EXAMINATION-IN-CHIEF BY MR NGUYEN................................................ PN53

EXHIBIT #A1 WITNESS STATEMENT OF STEPHEN PAUL HIND DATED 30/07/2015................................................................................................................................... PN66

EXHIBIT #A2 WITNESS STATEMENT OF STEPHEN PAUL HIND DATED 06/09/2015................................................................................................................................... PN67

CROSS-EXAMINATION BY MR MEAD.......................................................... PN70

RE-EXAMINATION BY MR NGUYEN........................................................... PN251

THE WITNESS WITHDREW............................................................................ PN276

EXHIBIT #R1 EXTRACT OF AMWU AND SIMPLOT AUSTRALIA PTY LTD NATIONAL COLLECTIVE AGREEMENT 2011 - 2014 COMPRISING THE TABLE OF CONTENTS AND PAGE 76 FROM AGREEMENT.............................................................. PN287

PETER RODNEY HARDMAN, SWORN......................................................... PN295

EXAMINATION-IN-CHIEF BY MS KASHMIRIAN..................................... PN295

EXHIBIT #R2 WITNESS STATEMENT OF PETER RODNEY HARDMAN PN323

THE WITNESS WITHDREW............................................................................ PN353

PETER RODNEY HARDMAN, RECALLED ON FORMER OATH.......... PN353

CROSS-EXAMINATION BY MR NGUYEN................................................... PN353

RE-EXAMINATION BY MS KASHMIRIAN.................................................. PN418

THE WITNESS WITHDREW............................................................................ PN433

PETER RODNEY HARDMAN, RECALLED ON FORMER OATH.......... PN433

RE-EXAMINATION BY MS KASHMIRIAN.................................................. PN433

THE WITNESS WITHDREW............................................................................ PN446

KERRY CHARLES BEARD, AFFIRMED...................................................... PN455

EXAMINATION-IN-CHIEF BY MS KASHMIRIAN..................................... PN455

EXHIBIT #R3 WITNESS STATEMENT OF KERRY CHARLES BEARD DATED 26/08/2015................................................................................................................................. PN481

CROSS-EXAMINATION BY MR NGUYEN................................................... PN503

THE WITNESS WITHDREW............................................................................ PN512

JANET MARY HOMAN, AFFIRMED............................................................. PN536

EXAMINATION-IN-CHIEF BY MS KASHMIRIAN..................................... PN536

EXHIBIT #R4 STATEMENT OF JANET HOMAN DATED 25/08/2015..... PN559

CROSS-EXAMINATION BY MR NGUYEN................................................... PN571

THE WITNESS WITHDREW............................................................................ PN582

PHILIP ALAN GUARD, AFFIRMED............................................................... PN586

EXAMINATION-IN-CHIEF BY MS KASHMIRIAN..................................... PN586

EXHIBIT #R5 WITNESS STATEMENT OF PHILIP GUARD DATED 25/08/2015 PN597

CROSS-EXAMINATION BY MR NGUYEN................................................... PN616

THE WITNESS WITHDREW............................................................................ PN648