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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052869
COMMISSIONER CAMBRIDGE
C2015/4117
s.739 - Application to deal with a dispute
Maritime Union of Australia, The
and
Patrick Stevedores Holdings Pty Limited
(C2015/4117)
Patrick Terminals Enterprise Agreement 2012
Sydney
10.06 AM, TUESDAY, 15 DECEMBER 2015
PN1
THE COMMISSIONER: We might start with the appearances in the matter, please.
PN2
MR A SLEVIN: Slevin, initial A, for the applicant. I'm instructed by Mr A JACKA. The first thing Mr Jacka instructs me to do is seek permission to appear. I seek that permission on the basis that this is a long‑running dispute and there have been a number of matters. Both parties have been represented throughout and in those circumstances I submit that legal representation - and the same legal representation - will assist you in running the proceedings more efficiency. On top of that, there are a number of jurisdictional arguments raised that give the proceedings some complexity.
PN3
THE COMMISSIONER: Thank you.
PN4
MR J DARAMS: May it please, my name is Darams, initial J. I seek permission to appear on behalf of the respondent. I also seek permission for my instructing solicitor, Mr M STOKES. I agree with my learned friend in relation to the application under section 596, particularly in relation to the complexity of the matter; but I think particularly my submission is that allowing the parties to be represented will allow the matter to be dealt with much more efficiently in the circumstances.
PN5
THE COMMISSIONER: Yes, I'll formally grant permission for any of the parties to be represented by lawyers or paid agents. I'm satisfied that the requirements of section 596 of the Act are met. There is sufficient complexity in the matter to indicate that the proceedings would be dealt with more efficiently with the presence of lawyers or paid agents. That's the first issue dealt with. Mr Slevin?
PN6
MR SLEVIN: Thank you. Commissioner, there are a number of matters for you to determine in these proceedings. There is the merit argument which goes to fairness and the proceedings are brought under the disputes procedure in the relevant agreement. Prior to getting to that point though, the respondent raises a number of jurisdictional arguments. There are three jurisdictional arguments. The first is the standing of the MUA to bring the application.
PN7
Put briefly, Commissioner, that argument is that because they are individual grievances, the employees should be the referring party to the Commission. The MUA doesn't concede that argument, but I've had some discussions with my learned friend before we commenced and I've suggested that one way of dealing with it may be that a procedural application be made to amend the proceedings to make the individual employees the applicants. My friend said he will get instructions on that point and so we won't trouble you with it now, but I bring it to your attention.
PN8
There are two other jurisdictional arguments, I apprehend, from the respondent's outline. One is your power to deal with a dispute because it's not over the application of the agreement. Now, our response to that is that it is indeed over the application of the agreement. That's a matter though that will need you to consider the evidence in the dispute itself, so it's not - and I put that, Commissioner - a threshold‑type issue. It's matter that submissions may be made on at the end of the proceedings and that's what we propose to do.
PN9
Then the third of the jurisdictional arguments is a question of whether there is a restriction on arbitrating in the matter, because the selection criteria that is the subject matter of the proceedings is a company policy. The disputes procedure in the agreement says that there should be no arbitration on company policies. That's a matter that goes to some evidence and it's a matter that we propose to respond to at the end of evidence, so it doesn't have an impact on the way the proceedings will be conducted. It allows us to go to the application itself and to lead the evidence before needing to address those arguments.
PN10
On the merits of the arguments, Commissioner, just by way of opening, it's an unfairness argument. It goes to the selection criteria used at Port Botany. I will in a moment go to the background of the circumstances, but I can enumerate for you the issues that arise on the merit aspects of the application. The selection criteria involved managers scoring employees so that they could be selected for training and then ultimately for employment in the new terminal. The managers' scores involved some - "subjective scores" is the way it's described in the material. When you go to the source documents, whether you call it subjective or otherwise, it's a matter of allocating a score based on a scheme.
PN11
The challenge to those subjective scores, as a matter of fairness on behalf of the employees, is that some of the managers who gave scores did so without knowledge of the work that they were giving - or the employees they were scoring. That's one of the aspects of the unfairness. Another aspect of the unfairness is the inconsistency in the scores between different managers. There is some statistical analysis of what is in the evidence as a table of scores for each employee, identified by their payroll number against the managers' analysis.
PN12
That shows that different managers had different predisposition, as it were, to how they were to apply these scores and the result is that some of them gave almost invariably low scores to employees, where there were others who almost invariably gave high scores to employees. There is this subjective nature of the scoring that the employees say ultimately sounds in unfairness against them, in particular those who are faced with the lower scoring supervisors, so there's that aspect.
PN13
There is another question that arises, as to whether that scheme I described that is in the evidence that explains what the scores mean, was indeed applied properly or fairly. On the terms of the document and in particular the focus in the material that will be before you, it is on the number of twos that people are given in circumstances where twos are an indication of not performing to expectations. I paraphrase, but, as the case goes, on we'll go to the detail of that and the actual words used.
PN14
The short point in relation to the allocation of twos is that they were allocated to employees in circumstances where the employees were surprised to find that their managers thought they weren't meeting expectations because those managers at no point said to them, "You're not meeting expectations," so they end up getting a two, indicating they don't meet expectations and they need training, but that's the first they hear of it at the heel of the hunt, as it were, when scores are being allocated in that way.
PN15
The short point is, well, that's simply unfair. If no‑one has been told that they're not meeting expectations, then they must objectively have been meeting those expectations. It seems that when scoring, something else was being considered, and certainly it seems that the scheme set out by the employer was not being followed in those instances. So they're the subjective score points that are made against the way this selection criteria was applied.
PN16
There are a couple of objective matters in the managers' scores, under the "Managers' scores" heading going to attendance and punctuality. There is some contest in the material that should come to light over the next couple of days about these issues. One is attendance. One would think that the question of attendance is a fairly objective sort of factor. It seems that the way the employees were scored, there was an element of subjectivity to it.
PN17
Those who said, "Well, look, no‑one ever said to me that my attendance was poor. I attended all the shifts I was asked to attend," get less than the three; they're not meeting the requirements. So we say just as an objective measure of work performance being turning up on the job, to score someone who has never been a non‑attender below the benchmark for acceptable, makes no sense. Punctuality falls in that same category. So they're the objective challenges to the managers' scores.
PN18
The next challenge to the way the selection criteria was applied was the way that productivity was measured. The question of productivity was another factor that led to a score that influenced the decision to offer training or ultimately offer employment. The employees contend that unfair results arose from that method. It was a method of simply averaging, over a 12‑month period, box movements.
PN19
Now, the employees say, "Well, just having a raw box movement score doesn't indicate my performance because when you move boxes that are difficult to move, you don't move as many, but you apply greater skill," and so the employees say, "So, by doing that, you're disadvantaging those of us who specialise in moving the difficult boxes and are allocated to moving the difficult boxes. We were good employees and we were chosen for difficult jobs, and we were marked down for it."
PN20
What you'll see as the evidence unfolds is the suggestion by the employees that, well, a better way to do that is to do it - while there's no perfect way of doing it, a better way of doing it is to look at it on a vessel by vessel basis and the explanation for that appears in particular in the evidence of Mr Freestone.
PN21
The last challenge to the selection criteria and how it was applied relates to the skills metrics and whether the skills metrics as published was applied, and whether employees were given points for particular skills. A contest arises about the pinman skill in particular, where it appears that some employees were given points for the pinman skill and others who were in the same position were not given points for the pinman skill, so that's just a simple error‑type complaint by the employees in those circumstances. There is a similar complaint made in relation to clerical employees.
PN22
There was a complaint about the team leaders, but that involved Mr Freestone, who is not giving evidence in his particular grievance because of a decision he made, I think, last week. Mr Freestone will still be giving evidence because he is the union delegate on site and I've had some discussions with my learned friend about excising things from his statement, so that will accommodate the decision. The contest about his particular circumstances will not be considered.
PN23
Those are the issues that will be considered in the arbitration, Commissioner, and we've filed an outline of submissions. I don't mean to be conceding anything from those outlined in giving you the brief opening that I just have, but that outline goes to the issue that I've just covered. Before calling the evidence, Commissioner, I think you're familiar with the background of what has happened at Port Botany, but if I can go to it briefly just to remind us all as to the circumstances that give rise to this arbitration.
PN24
You will be aware, Commissioner, that in July 2012, Asciano, the parent company of the employer here, announced a redevelopment of the Port Botany terminal. The redevelopment of the terminal included the introduction of automated straddle cranes and a significant reduction in the number of employees at the terminal. There have been disputes filed in this Commission in relation to consultation about that, under clause 14 of the agreement, and there have been a number of conciliation conferences and a number of arbitrations in that context. That was of course in the context of clause 14 of the agreement and disputes over disagreements that arose in the consultation.
PN25
Those arbitrations are of a different nature to the arbitration that is being pursued here, as the matters to be determined come to the Commission by a different route. They come through, first of all, clause 10 of the agreement that exhorts the company to treat the employees fairly; and if they feel that they're being treated unfairly, to raise a grievance. That grievance is raised under schedule 3 of the agreement.
PN26
If that grievance cannot be resolved by other mechanisms, it's available to the employee or their representative, we say, that that argument may disappear - to refer the grievance to this Commission. That reference comes via schedule 1 of the agreement, which is the disputes procedures which has a specific provision dealing with the reference of disputes to this Commission. That's the means by which the matters come here.
PN27
The subject matter in the proceedings is the selection criteria used to determine who would be made redundant. That selection criteria was applied following the consultation process and was put into action, as it were, in December of last year and January of this year. What can be seen from that selection criteria is that something of a somewhat complex procedure was applied, but it's a procedure that was set out and the rules were laid down in information packs provided to employees; so its component parts can be easily identified.
PN28
It is because of that that the employees were able to identify now the unfairness in the application of the criteria, so concentration is on the point system. It's a point system that results in a ranking that resulted in selection first for training and then, if the training was successful, the point system also led to retaining people in jobs. There were different jobs and different means of allocating people to the jobs in the new terminal, but in essence that selection criteria and that point scoring exercise was a very important and focal part of the exercise of the manner in which employees were treated for the purpose of this decision‑making exercise.
PN29
These proceedings focus on whether when the employees were subject to the selection criteria, they were treated fairly, so thus comes the challenges that I've described to you. So the focus then is on the points and ultimately what is sought in the proceedings is that there be a re‑allocation of points in a fair manner, and what's described in the material is the manner in which the employees say the points should have been allocated.
PN30
What arises from that is a new ranking, as it were - or what may arise from that is a new ranking. We suspect the evidence will show that indeed there will be changes as to the ranking of the employees and, as a result of that, a re‑adjustment of the workforce in terms of the fairness arguments that are raised.
PN31
In terms of the practical impact of such an exercise, it's a matter that schedule 3 to the agreement envisages. When decisions are made that are challenged under the grievance procedure, those decisions are held to be provisional until the grievances are finalised. That has been recognised by the respondent here. The offers of employment that arose from this process were all offered on the basis that they were provisional appointments; provisional upon the outcome of these grievances.
PN32
In terms of that exercise, the parties have already in their agreement determined that the grievance procedure will be finalised before the decision is finalised, so we're dealing with provisional decisions of the employer. These employees who have been made redundant, in their letters of redundancy they've made it clear that that decision is provisional upon the grievance procedure. That's the way the parties have determined it, so it's not really an issue for the Commission.
PN33
It's quite clear on the face of the agreement that that's the way this works and mechanisms have been put in place to ensure that the intent of the parties and the terms of the agreement can be recognised; so when we come to the Commission, we come to the Commission on the basis of, "We'd like you to have at look at this unfairness that's claimed by the employees and their grievances, and we'd like you to resolve that ultimately because we haven't been able to resolve it otherwise through the disputes procedure." That's the nature of the arbitration and the background that gives rise to it.
PN34
Going to the specific notifications of the employees and the steps taken by the employees, there was a process in January 2015 of notifying the employees of the decision about the training and notifying them that those decisions were provisional, as I've said, and the opportunity for the employees to raise grievances. You'll see in each of the statements the employees who are before you for the purposes of this arbitration and they are the test cases that were decided upon as a result of the conciliation process and the agreement between the parties as to how best to resolve these grievances.
PN35
You will see from that material that each of them describes the steps in the grievance procedure that they've taken. You'll find, Commissioner, oddly, that there were two grievances raised, but that was because there was an argument in arbitration in the Commission about the provision of information about that process. That was conducted before Sams DP, who found that the information should be given. That occurred after the initial grievances were lodged and so there was a second opportunity for grievances, and that was offered by the company and accepted by the employees; so you'll see that there are two grievances.
PN36
You will see references being made to the second grievance. When you see that, that's the background to that. In other words, first the grievance was raised. Part of the first grievance was, "I don't have enough information about the decision you made." The proceedings in this Commission, the information was provided and a second grievance was put in, and a fuller grievance, to identify the complaints that the employees had about the decision that was made.
PN37
You have the two grievances. You then have a process of consideration of those grievances and that's described at the various statements. The vast majority of those grievances were unsuccessful. There was then an appeal process. That appeal process was unsuccessful and then that led to the notification to this Commission. So we have the grievance process followed in that way and that has occurred over the months since the decision made, and there has been conciliation that you're familiar with, Commissioner. That lands us here today to seek the external appeal of the grievances raised back in January this year.
PN38
That's all I have by way of opening to give the context of what you're about to hear, Commissioner. I'm not sure if my friend wants an opportunity to say anything now.
PN39
MR DARAMS: Nothing.
PN40
MR SLEVIN: He'll say it before he goes to his evidence. I propose now to start calling - - -
PN41
THE COMMISSIONER: Just before that, Mr Slevin, perhaps not now but maybe over the next day or two, I would be interested to see how any relief would be provided for; just how it would look. I note from the submissions that have been filed, the applicants say that the Commission should determine that the company take steps to recalculate the scores of all employees. So it's not just the particular individuals, either the test case ones or the 61 that are the subject of the dispute notification. It's all - it's the entire process, is it?
PN42
MR SLEVIN: Yes, it is. There's evidence in the proceedings about that. There's a table of all of the scores, I think it's about three pages long and it's an exercise of - and the evidence will deal with this, Commissioner, question.
PN43
THE COMMISSIONER: I'm just interested though that if at some point someone - yourself or those instructing you could put their mind to just how that might manifest as the nature of the relief, what it would like I think.
PN44
MR SLEVIN: Certainly, Commissioner. It goes to those issues that I started with but I think we can formulate that into something that's more focused over the next couple of days.
PN45
THE COMMISSIONER: Yes. Obviously some of that will emerge from the evidence but I think it's worthwhile at least keeping it in the back of one's mind that at some point here it is what we - here is an order of the Commission determining the matter or a determination containing these points, which we say would address the inadequacies, the unfairness et cetera, that you say exists.
PN46
MR SLEVIN: So if you're ready now, Commissioner, our first witness is Mr Freestone.
PN47
THE COMMISSIONER: Mr Freestone.
PN48
MR SLEVIN: There are two statements to assist you for Mr Freestone. As I said earlier some excisions to be done of the first statement and then a second statement. I'll see if I can get the dates for you, Commissioner. 6 November is the first one and 10 December. I call Mr Freestone. I understand he's not required for cross-examination and my friend's happy for me just to identify those paragraphs we're relying upon and he's not required to be sworn if you're happy with that.
PN49
THE COMMISSIONER: Well if that's the position I suppose it makes it easier for Mr Freestone too.
PN50
MR SLEVIN: It does, Commissioner. That's the happiest I've seen him for some time.
PN51
THE COMMISSIONER: A bit of a false start I think, Mr Freestone.
PN52
MR FREESTONE: No worries.
PN53
THE COMMISSIONER: So we're excising some paragraphs from this are we?
PN54
MR SLEVIN: We are. I'll start with the first statement. So I read paragraphs 1 to 17. Now just so you're aware, Commissioner, because I know you had a preliminary hearing about Mr Freestone, the first 17 paragraphs go to Mr Freestone introducing himself but also goes to an event early this year in January, where there was a bit of a false start, where Mr Freestone identified an error in what had been done in the selection criteria and there was then a halt in the proceedings so that the company could go back and examine that error. Mr Cheng's given some evidence about it as well but the first 17 paragraphs of Mr Freestone's statement give you the more detailed account of that.
PN55
So from there we go to paragraph 41 and Mr Freestone because of his position as a team leader is familiar with the productivity questions that arise in a number of the applicant's disputes.
PN56
THE COMMISSIONER: Sorry, so paragraphs 18 to 40 inclusive are not read?
PN57
MR SLEVIN: Not read.
PN58
THE COMMISSIONER: Right.
PN59
MR SLEVIN: Then I read paragraphs 41 to the end of the statement.
PN60
THE COMMISSIONER: So with that alteration the document's tendered and I take it there's no objection to the admission of the document in that altered form?
PN61
MR DARAMS: No, that's correct.
THE COMMISSIONER: The document will then become exhibit 4 in the proceedings. Exhibit 4 is described at witness statement of Matthew Freestone dated 6 November 2015. Exhibit 4.
EXHIBIT #4 WITNESS STATEMENT OF MATTHEW FREESTONE DATED 06/11/2015
PN63
MR SLEVIN: The second statement I read in full, Commissioner, and it's dated 10 December 2015.
PN64
THE COMMISSIONER: There's no objection to that?
PN65
MR DARAMS: No, Commissioner.
THE COMMISSIONER: The document's tendered, admitted without objection and this becomes exhibit 5. Exhibit 5 is described as further witness statement of Matthew Freestone, dated 10 December 2015. Exhibit 5.
EXHIBIT #5 FURTHER WITNESS STATEMENT OF MATTHEW FREESTONE DATED 10/12/2015
PN67
MR SLEVIN: Commissioner, I'm reminded of something which is that Mr Freestone wanted to give some more evidence on this question of productivity. What's happened is there's been some response late yesterday from Mr Cheng and to meet some of that material I had three questions for Mr Freestone. It's on this productivity question and so while Mr Freestone had a reprieve briefly, I'm instructed that I've got some questions for him to lead in addition to his statement. So perhaps if I can recall or can I call - - -
PN68
MR DARAMS: Commissioner, I do have an objection. Mr Freestone's put on two statements, relied upon two statements. It is correct that a statement was served yesterday by Mr Cheng. That goes to dealing with in effect reply to Mr McCarthy's statement which was served on the company last week, I think on the 8th, and it was identified that Mr McCarthy would now be one of the individuals who would come within this grievance process where he wasn't one of the individuals identified first. So Mr Cheng's replied to that.
PN69
A number of the other individuals had provided supplementary statements or reply statement where they had, say, raised new matters which they didn't raise in their initial statements and so Mr Cheng has dealt with those matters. What my learned friend now says is that Mr Cheng's statement that dealt with some productivity matters and I'm just - I'm aware of Mr Cheng's statement obviously but he doesn't deal in any way, shape or form in respect of the evidence of Mr Freestone. So I'm not sure how it is that there's anything that Mr Freestone ought be permitted to say about these matters. It might be that - because I haven't been told about this, it might be that Mr Slevin might tell me what part of the statement of Mr Cheng's is in issue and it might be that he might have to ask one of the other individuals questions about it, but not Mr Freestone. In effect, I suspect I'll be hearing new evidence fresh from Mr Freestone who's put on two statements.
PN70
MR SLEVIN: This is late breaking - through late yesterday, Commissioner. I think my friend's right that there's not a response to Freestone in Cheng but there's an issue with the productivity. Perhaps the best way to deal with this is to go to substance, which is the questions I'm going to ask Mr Freestone are about the factors in measuring productivity. Mr Freestone's statement gives evidence about the ship's hold.
PN71
I'm instructed that Mr Freestone's content with what's in his supplementary statement on that topic but I should finish my explanation. It goes to - I think the question that you asked, Commissioner, which is when you get to the point where you want to deal with productivity, what do the employees say is a fair way of doing it. Mr Freestone in his statement says, I think at paragraph 16 of his second one, these factors are not taken into account if you just do a blanket averaging exercise.
PN72
The questions that I was going to ask him about was well, you've given us an indicative list, are there any other factors about measuring productivity and then - and from what you say how can it be fairly measured. They're the questions that I was going to put to Mr Freestone and I'd understood that that comes out of the response that Mr Cheng's given. I can't identify it now. It might be in relation to Mr Lee who also deals with the (indistinct) amendments question. Regardless of whether it's that or not, I make my application to ask Mr Freestone that last question, because I don't think that is dealt with in his supplementary statement.
PN73
THE COMMISSIONER: Is there any difficulty with that, Mr Darams?
PN74
MR DARAMS: Well there is because I don't know what he's going to say. He's going to be effectively giving new evidence in circumstances where he's served two statements already but a supplementary statement in circumstances where he was - well his application in this dispute was stayed but then he's subsequently given a statement in support of the other applications. He should have dealt with it in that circumstance, but to buttress that submission there is nothing in Mr Cheng's statement which in my submission requires anything from Mr Freestone to reply to supplement.
PN75
THE COMMISSIONER: But those questions are really going to go to what alternative productivity measurement this individual might believe would be more appropriate.
PN76
MR DARAMS: Well I think he's already given that evidence.
PN77
THE COMMISSIONER: Well apparently there's going to be some elaboration of that. I wouldn't have thought that was too troubling.
PN78
MR DARAMS: He should have given that evidence in the statement so one could have considered it when one was determining what evidence to bring in reply. That's my point.
PN79
THE COMMISSIONER: Well I'm sure that it's not going to be a massive difficulty because you'll be able to provide the opportunity through some further evidence in-chief from your witness if this is something that seemed to be significant.
PN80
MR DARAMS: I don't know what it is.
PN81
THE COMMISSIONER: I don't anticipate it's going to be something that couldn't be addressed fairly easily.
PN82
MR DARAMS: I've said what I've had to say about it.
PN83
THE COMMISSIONER: Well let's get on and I think Mr Freestone might not avoid going into the witness box.
PN84
THE ASSOCIATE: Please state your full name and address.
MR FREESTONE: Matthew John Freestone, (address supplied).
<MATTHEW JOHN FREESTONE, SWORN [10.43 AM]
EXAMINATION-IN-CHIEF BY MR SLEVIN [10.43 AM]
PN86
THE COMMISSIONER: Is any of this in terms of presence of other witnesses something that anyone will be troubled about? Mr Cheng's not here, is he?
PN87
MR DARAMS: Well he's not but as a matter of fairness can I have Mr Cheng come in to hear the evidence so I can get some proper instructions on it?
PN88
THE COMMISSIONER: I think that's really what I was envisaging with it.
PN89
MR DARAMS: I went the other way.
PN90
THE COMMISSIONER: I think that's the safest configuration, if Mr Cheng can hear this then Mr Darams might lead further evidence in-chief from him if it's an issue that needs to be dealt with. That's the best way to deal with, I think, without disadvantaging the position of either side.
PN91
MR DARAMS: Here he comes.
PN92
THE COMMISSIONER: I think we've got this configured the way that I think it's appropriate. Thank you, Mr Slevin.
PN93
MR SLEVIN: Your name is Matthew Freestone?‑‑‑Yes, that's correct.
PN94
Your residential address is (address supplied)?‑‑‑(Address supplied), yes.
PN95
You've prepared two statements which have been marked exhibit 4 and exhibit 5 in these proceedings?‑‑‑That's correct, yes.
*** MATTHEW JOHN FREESTONE XN MR SLEVIN
PN96
The contents of those statements are true and correct?‑‑‑Yes.
PN97
In those statements you deal with the question of productivity and the productivity scores during the selection criteria?‑‑‑Yes.
PN98
You give in particular in your second statement an account of the difficulties associated with scoring productivity on an averaging basis?‑‑‑Yes, that's correct.
PN99
Now if productivity can't be measured or if you think those difficulties exist, if they can't be measured in that way how can you say it can be fairly measured?‑‑‑Look, although it's not perfect I believe that it should be measured on a ship by ship basis, which makes it a lot fairer in engaging the actual productivity that's done during the shifts. So - - -
PN100
Yes, I appreciate you described the ships, you give an example in your second statement with your annexures of a ship?‑‑‑Yes.
PN101
But can you explain to the Commissioner how that would work?‑‑‑You take the number of lifts that are performed on that actual ship and divide it by the amount of gangs that work that actual ship, over the time that that ship is in port.
PN102
How would that end up being a score for the individual employees who work the ship?‑‑‑Well as I said if you're - you'd get - that'd be divided up in-between the gangs that have worked on that ship and everyone would be given a score divided up in regards to the amount of gangs that actually worked on that ship, divided by the amount of lifts that were done for that ship.
PN103
So the score for everyone in the gang would be the same?‑‑‑Yes. That's correct, yes.
PN104
That was the additional evidence, Commissioner.
PN105
THE COMMISSIONER: Mr Darams, did you want a short adjournment or do you want to say anything or ask any questions about this?
PN106
MR DARAMS: Perhaps if I could have a two minute adjournment.
PN107
THE COMMISSIONER: A two minute adjournment.
*** MATTHEW JOHN FREESTONE XN MR SLEVIN
PN108
MR DARAMS: Two minute adjournment.
PN109
THE COMMISSIONER: We'll just take a very short adjournment so you can get some instructions on this particular point.
SHORT ADJOURNMENT [10.48 AM]
RESUMED [10.53 AM]
PN110
THE COMMISSIONER: Mr Darams, any questions of the witness?
PN111
MR DARAMS: No, rather anti-climatically.
THE COMMISSIONER: No. Thank you. Well thank you for giving your further evidence, Mr Freestone. You're released and discharged, thank you?‑‑‑Thank you.
<THE WITNESS WITHDREW [10.53 AM]
PN113
MR SLEVIN: The second witness will be Nicholas Busuttil - B-u-s-u-t-t-i-l.
PN114
THE COMMISSIONER: I had these witnesses last night ordered in the order I thought you might be calling them in, but I've got it wrong.
PN115
MR SLEVIN: I can give you the order, Commissioner, if that assists. Mr Busuttil, Mr Dymock, Mr Hudson, Mr Lee and Mr McCarthy.
PN116
THE COMMISSIONER: Right.
PN117
THE ASSOCIATE: Please state your full name and address.
MR BUSUTTIL: Nicholas Busuttil, (address supplied).
<NICHOLAS BUSUTTIL, SWORN [10.55 AM]
EXAMINATION-IN-CHIEF BY MR SLEVIN [10.55 AM]
PN119
MR SLEVIN: Is your name Nicholas Busuttil?‑‑‑That's correct.
*** NICHOLAS BUSUTTIL XN MR SLEVIN
PN120
Your address is (address supplied)?‑‑‑That's correct.
PN121
You've prepared two witness statements for these proceedings, Mr Busuttil?‑‑‑Yes.
PN122
Do you have them with you?‑‑‑I sure do, yes.
PN123
Go to the first one which is dated 6 November 2015. Is that document 28 paragraphs that you have and has eight annexures?‑‑‑28.
PN124
Go to page 7, it ends at paragraph 28? The statement itself?‑‑‑This one?
PN125
Where the date is - the first one. That's the one?‑‑‑Page 7. I don't have a page 7.
PN126
Well that's the second one then. I just want to make sure we're all singing off the same song sheet?‑‑‑Re-employment at Port Botany?
PN127
Yes?‑‑‑Yes.
PN128
So the last paragraphs is numbered 28 on yours?‑‑‑Yes, that's correct.
PN129
The contents of that statement, Mr Busuttil, are they true and correct?‑‑‑Yes, it's true and correct.
PN130
I tender that statement.
PN131
MR DARAMS: No objection.
THE COMMISSIONER: Thank you, the document's tendered, admitted without objection and this becomes exhibit 6. Exhibit 6 is described as witness statement of Nicholas Busuttil dated 6 November 2015. Exhibit 6.
EXHIBIT #6 WITNESS STATEMENT OF NICHOLAS BUSUTTIL DATED 06/11/2015
*** NICHOLAS BUSUTTIL XN MR SLEVIN
PN133
MR SLEVIN: The second document, Mr Busuttil, is the supplementary witness statement. It's only three pages with nine paragraphs?‑‑‑Yes, supplementary witness statement, yes.
PN134
Are you familiar with that document?‑‑‑Yes, I am.
PN135
Are the contents of it true and correct?‑‑‑Yes, the contents is true and correct.
PN136
I tender the supplementary witness statement of Nicholas Busuttil.
PN137
THE COMMISSIONER: There's no objection?
PN138
MR DARAMS: No objection.
THE COMMISSIONER: Thank you. The document's tendered and admitted without objection and it becomes exhibit 7. Exhibit 7 is described as supplementary witness statement of Nicholas Busuttil, dated 8 December 2015. Exhibit 7.
EXHIBIT #7 SUPPLEMENTARY WITNESS STATEMENT OF NICHOLS BUSUTTIL, DATED 08/12/2015.
PN140
MR SLEVIN: That's the evidence of Mr Busuttil.
THE COMMISSIONER: Nothing further in-chief. Cross-examination Mr Darams.
CROSS-EXAMINATION BY MR DARAMS [10.58 AM]
PN142
MR DARAMS: Mr Busuttil, can I ask you to go to paragraph 18 of your first statement?‑‑‑Paragraph 18?
PN143
Paragraph 18 of the first statement, the longer statement?‑‑‑On 2 April 2015, 17 did you say? 18.
PN144
Paragraph 18. I think my version says 22 April?‑‑‑Yes, that's correct, sorry.
*** NICHOLAS BUSUTTIL XXN MR DARAMS
PN145
You've set out there in paragraph 22 what you recall was discussed at that meeting?‑‑‑Yes.
PN146
Before attending that meeting you had received from the company all your individual scores from your ship managers hadn't you?‑‑‑That's correct.
PN147
You had read them before going to that meeting?‑‑‑That's correct.
PN148
Just back to the meeting and paragraph 18?‑‑‑Yes.
PN149
Is it the case that Mr Keating spoke on your behalf at that meeting?‑‑‑That's correct.
PN150
This is not meant as any criticism but all that you can recall now about what was discussed at the meeting is what you've set out in paragraph 18, isn't it?‑‑‑Yes, that's probably true because a lot of it was said in the first meeting, because that was the second.
PN151
Yes?‑‑‑Which is written down there somewhere, basically.
PN152
I understand that. Now, I want to ask you to - I want to ask you to go to your second statement?‑‑‑Yes.
PN153
Now, you attach to that statement some notes you've identified as NB1, these are documents that you were provided by the union?‑‑‑Yes.
PN154
Now, you say, in paragraph - I think paragraphs 3 and 5 of your statement you make various observations about those notes, in particular in regard to Mr La Roche and Mr Wood, do you see that?‑‑‑Paragraph 3? Yes, I see that.
PN155
So in paragraph 3, the last sentence, you say:
PN156
The notes also said that he instructed me to follow reasonable work request.
PN157
Now, when you say "the notes" you're referring to the notes which are attached to that statement, that NB1, that's correct?‑‑‑Yes.
*** NICHOLAS BUSUTTIL XXN MR DARAMS
PN158
Now, you then say, in paragraph 6, in that statement, you make a reference to Mr Lucy?‑‑‑Yes.
PN159
Now you then make a note or give some evidence that there's nothing in these notes NB1 which refer to why Mr Lucy gave you a particular mark, do you see that?‑‑‑All I can see is Bob Wood and Daniel La Roche.
PN160
Correct. So can I just ask you to go back to paragraph 6 of your statement?‑‑‑Yes.
PN161
You say:
PN162
Steve Lucy also gave me a two for -
PN163
And you've identified two matters there in bullet points. And then you say:
PN164
There is nothing in the investigation notes -
PN165
And by that you mean the notes in NB1?‑‑‑Yes.
PN166
Now, what I want to suggest to you, Mr Busutill, is that the reason that there is nothing in those notes is that you never raised anything about - sorry, I withdraw that. Nothing was raised, on your behalf, by Mr Keating, about Mr La Roche, sorry, Mr Lucy, at the meeting on 22 April, would you accept that?‑‑‑Yes.
PN167
Yes. Nothing further.
PN168
THE COMMISSIONER: Any re-examination?
PN169
MR SLEVIN: No, nothing thanks.
THE COMMISSIONER: No? Thank you for giving your evidence, you're released and discharged, you may leave?‑‑‑Thank you very much.
<THE WITNESS WITHDREW [11.04 AM]
PN171
MR SLEVIN: I call Mr Dymock.
*** NICHOLAS BUSUTTIL XXN MR DARAMS
PN172
THE ASSOCIATE: Please state your full name and address?
MR DYMOCK: Milton Dymock, (address supplied).
<MILTON DYMOCK, SWORN [11.05 AM]
EXAMINATION-IN-CHIEF BY MR SLEVIN [11.05 AM]
PN174
MR SLEVIN: Is your name Milton Dymock?‑‑‑Yes.
PN175
And your address is (address supplied)?‑‑‑Yes, that's correct.
PN176
You prepared two witness statements for these proceedings?‑‑‑That's correct.
PN177
You have them with you?‑‑‑Yes, I do.
PN178
Just an exercise to make sure you've got what we've got, the first one, is it six pages with - dated 6 November 2015, the statement part and you've got a number of annexures?‑‑‑Yes.
PN179
And the contents of that statement, Mr Dymock, are they true and correct?‑‑‑Yes.
PN180
I tender the statement of Milton Dymock.
PN181
THE COMMISSIONER: No objection?
PN182
MR DARAMS: No objection, Commissioner.
THE COMMISSIONER: Documents tendered and admitted without objection and this becomes exhibit 8 and exhibit 8 is described as the witness statement of Milton Dymock, dated 6 November 2015. Exhibit 8.
EXHIBIT #8 WITNESS STATEMENT OF MILTON DYMOCK DATED 06/11/2015
PN184
MR SLEVIN: The second statement of Mr Dymock is three pages with nine paragraphs?‑‑‑Yes.
*** MILTON DYMOCK XN MR SLEVIN
PN185
With the date 9 December on the last page?‑‑‑Yes, that's correct.
PN186
And are the contents of that statement true and correct?‑‑‑Yes.
PN187
I tender the supplementary statement of Mr Dymock.
PN188
MR DARAMS: No objection.
THE COMMISSIONER: Thank you. The document is tendered and admitted without objection and it's marked as exhibit 9. Exhibit 9 is described as a supplementary witness statement of Milton Dymock, dated 9 December 2015. Exhibit 9.
EXHIBIT #9 SUPPLEMENTARY WITNESS STATEMENT OF MILTON DYMOCK DATED 09/12/2015
MR SLEVIN: That's the evidence-in-chief of Mr Dymock, Commissioner.
CROSS-EXAMINATION BY MR DARAMS [11.07 AM]
PN191
MR DARAMS: Mr Dymock, can I ask you to go to paragraph 20 of your first statement?‑‑‑Yes.
PN192
That's the paragraph that says, or starts, "I received information"?‑‑‑Yes.
PN193
Now, you don't include any date when you received that information from the company in that paragraph. Is that because you don't know the actual date?‑‑‑No.
PN194
If I was to suggest to you that you got that information on 12 March 2015, does that assist you?‑‑‑I can't remember to be honest.
PN195
Have you any reason to doubt that that was about the date that you were provided with that information?‑‑‑Perhaps, yes.
PN196
You'd be able to say, "Well, I didn't get the information in May this year" wouldn't you?‑‑‑Well, I'm not sure, to be honest.
*** MILTON DYMOCK XXN MR DARAMS
PN197
Now, you then say, in paragraph 16, that there was an appeal meeting, arranged on your behalf, on 24 April 2015 but you weren't able to attend, do you see that?‑‑‑Yes.
PN198
Given that you weren't able to attend you can't tell us, from your own knowledge, what was actually discussed at that meeting, can you?‑‑‑No.
PN199
If you were to say anything about what happened at the meeting it would only be because someone else was telling you about what happened, is that correct?‑‑‑Yes.
PN200
Now, can I ask you to go to your second statement? Now, can I ask you to go to paragraph 6? Now, just - just read that to yourself?‑‑‑Just what it states during the appeal meeting?
PN201
Yes, just into yourself. Now, I want to ask you a question, in a minute. This next question is not a trick question, but when you were sworn in you were asked whether this second statement was true and correct and you said it was?‑‑‑Yes.
PN202
I just want to suggest to you that paragraph 6, when it refers to the date of the meeting, is not correct, would you agree with me?‑‑‑I'm not sure.
PN203
Well, if we go back to your first statement, you said there that the meeting was 24 April?‑‑‑On the 16th, paragraph 7?
PN204
Yes, that's correct?‑‑‑Yes.
PN205
So you've said now the meeting was 29 April and I just want to - I want to suggest to you that the date of 29 April, in paragraph 6, is incorrect, would you agree with that?‑‑‑Yes, going off the first statement, is that what you're saying?
PN206
Yes?‑‑‑Yes.
PN207
Just so you can be clear, you've annexed, to that second statement, some documents which were provided to you by the company? Do you see that as MD1?‑‑‑Yes.
PN208
And on page 9 of your statement, down the bottom right-hand corner, do you see that, page 9?‑‑‑Yes.
*** MILTON DYMOCK XXN MR DARAMS
PN209
If you go to the very top left-hand corner you will see
- - -?‑‑‑The date.
PN210
- - - a date of 24 April. So just for completeness you would want to correct then, in paragraph 6 of your second statement, you'd want that date 29 April to read 24 April, wouldn't you?‑‑‑Okay.
PN211
Yes. Now, you say - you say, in paragraph 6, that Mr Garrett has apparently - you set out, in paragraph 6, that Mr Garrett has said things on your behalf at that meeting. That's because - you say that because of what Mr Garrett's told you, is that right?‑‑‑What he told me?
PN212
Yes?‑‑‑Just in regards to how I scored.
PN213
Yes. Sorry, I've probably confused you. You say, in paragraph 6, that at that meeting Mr Garrett also spoke about you getting three scores of two, you see that? What I'm suggesting to you is that you say that, only based upon what Mr Garrett has subsequently told you, not because you were there and heard Mr Garrett say these things, isn't that right?‑‑‑Yes.
PN214
No further questions.
PN215
THE COMMISSIONER: Any re-examination?
PN216
MR SLEVIN: No re-examination.
THE COMMISSIONER: Thank you, Mr Dymock, for giving your evidence. You're released and discharged, you may leave, thank you.
<THE WITNESS WITHDREW [11.13 AM]
PN218
MR SLEVIN: The next witness is Mr Hudson.
PN219
MR ASSOCIATE: Please state your full name and address?
MR HUDSON: Troy James Hudson, (address supplied).
<TROY JAMES HUDSON, AFFIRMED [11.15 AM]
*** MILTON DYMOCK XXN MR DARAMS
EXAMINATION-IN-CHIEF BY MR SLEVIN [11.15 AM]
PN221
MR SLEVIN: Is your name Troy Hudson?‑‑‑Yes.
PN222
Your address is (address supplied)?‑‑‑Yes.
PN223
Have you prepared two witness statements for these proceedings?‑‑‑Yes.
PN224
Do you have them with you?‑‑‑Yes.
PN225
The first one is nine pages and the ninth page there's your name and the date 9 November 2015?‑‑‑Yes.
PN226
There's a number of annexures described in your statement as well?‑‑‑Yes.
PN227
Are the contents of that statement true and correct?‑‑‑Yes.
PN228
I tender the witness statement of Troy Hudson, dated 9 November 2015.
THE COMMISSIONER: The document is tendered and admitted without objection. It becomes exhibit 10. Exhibit 10 is described as the witness statement of Troy Hudson, dated 9 November 2015. Exhibit 10.
EXHIBIT #10 WITNESS STATEMENT OF TROY HUDSON DATED 09/11/2015
PN230
MR SLEVIN: The second statement is four pages and the fourth page has your name and the date 9 December 2015?‑‑‑Yes.
PN231
Are you familiar with that document?‑‑‑Yes.
PN232
Are the contents of that document true and correct?‑‑‑Yes, it is.
PN233
I tender the supplementary witness statement of Troy Hudson, dated 9 December 2015.
*** TROY JAMES HUDSON XN MR SLEVIN
PN234
MR DARAMS: No objection.
THE COMMISSIONER: The document is tendered and admitted and will be marked as exhibit 11. Exhibit 11 is described as supplementary statement of Troy Hudson, dated 9 December 2015. Exhibit 11.
EXHIBIT #11 SUPPLEMENTARY WITNESS STATEMENT OF TROY HUDSON DATED 09/12/2015
PN236
MR SLEVIN: That's the evidence-in-chief of Mr Hudson.
THE COMMISSIONER: Mr Darams?
CROSS-EXAMINATION BY MR DARAMS [11.17 AM]
PN238
MR DARAMS: Could I ask you to go to paragraph 18 of your first statement?‑‑‑Yes.
PN239
You say there that in about March 2015 you received information from the company with the details of your shift manager score?‑‑‑Yes.
PN240
Can you be any clearer about the date in March?‑‑‑No, I'm not - I'm not exactly sure about the actual - the actual date.
PN241
Okay. When you - I want to suggest to you the first time that you received those documents was the first time that you had the breakdown from each individual manager, as to the score they gave you?‑‑‑I don't - I'm not sure that all - all the - the full scores were given to us, no.
PN242
No. What I want to suggest to you is that before receiving these documents you were never told that Mr, for instance, Clayson, gave you 38, Mr Cachia gave you 30, et cetera, et cetera. You didn't have that detail before you received these documents?‑‑‑No.
PN243
And you'd never had a discussion with anyone else where they had that information, on your behalf, did you?‑‑‑No.
PN244
In those circumstances I just - can I ask you to go to paragraph 10?‑‑‑Yes.
*** TROY JAMES HUDSON XXN MR DARAMS
PN245
You refer there to a meeting, during which Mr Garrett spoke on your behalf. The meeting you refer to happened on 24 February this year, didn't it?‑‑‑Yes, in paragraph 9.
PN246
Correct. So what I want to suggest to you, Mr Hudson, is that in paragraph 10 your mistaken as to what was discussed on your behalf, at the meeting on 24 February, would you agree with that?‑‑‑That I hadn't been recognised in the score of the truck marshal?
PN247
No. Sorry, I should have been more clear. You say in there that Mr Garrett asked why you'd been scored so low by Danny La Roche and the other shift managers. What I'm suggesting to you is that you're mistaken about that because that information hadn't been provided to you, or anyone on your behalf, before the 24th - sorry, before March this year, would you agree with that?‑‑‑We were scored by the shift - shift managers as - as a - as a whole scoring room.
PN248
That's correct. What I'm suggesting to you is you say, in paragraph 10, that at this meeting, on 24 February, Mr Garrett was speaking directly about a score given by Mr La Roche?‑‑‑Yes, he - yes, he refers to Danny La Roche, yes.
PN249
Yes. So what I was suggesting to you is that you're just mistaken about that part of any conversation on the 24th, because by that time neither you nor anyone on your behalf had been given that level of detail?‑‑‑We hadn't been given the scores.
PN250
No, no. So likewise where it says:
PN251
He also said everyone in gang 6, which is my gang, has very low scores compared to other gangs.
PN252
Could I suggest to you that you're mistaken about that as well?‑‑‑No. Well, we didn't make the - a lot of our gang had been put out.
PN253
I'm - put that to one side. My question is, that given, again, that certain information hadn't been provided by the company until March, Mr Garrett wasn't in a position to say those things about gang 6 at the meeting on the 24th. I'm just suggesting you're mistaken about that, would you agree with that?‑‑‑No.
PN254
You wouldn't agree with that?‑‑‑No.
*** TROY JAMES HUDSON XXN MR DARAMS
PN255
Okay. You don't have any notes of the meeting that occurred on 24 February, do you?‑‑‑No, I don't.
PN256
So you're just giving - when you give this evidence you're dong the best you can, from your memory - your memory as to the recollection of those events, on 9 November this year, do you agree with that?‑‑‑Yes.
PN257
A considerable number of months after February this year, would you agree with that?‑‑‑Yes.
PN258
Do you accept your memory could be a little bit faulty as to those circumstances? Would you agree with that or accept that?‑‑‑Yes.
PN259
Okay. Now - no further questions.
THE COMMISSIONER: Mr Slevin?
RE-EXAMINATION BY MR SLEVIN [11.26 AM]
PN261
MR SLEVIN: Yes, thank you, Commissioner. Can you just turn your mind to the 24 February meeting? You see you've described who was there; Mr O'Leary, someone named Andrew from HR, Mr Garret from the union, and yourself. Can you just tell the Commissioner what you remember - what you remember of what was said at that meeting?‑‑‑Is there a paragraph?
PN262
It's paragraph 9, but if you could just turn your mind, rather than look at your statement, to the meeting itself. So just try and turn your mind to the 24 February meeting with Mr O'Leary and the fellow named Andrew and Mr Garrett and remember what was said? So do you recall where the meeting was?‑‑‑Yes.
PN263
Where was it?‑‑‑It was at the - at the terminal.
PN264
Do you remember what time it was?‑‑‑In the afternoon some time. Not exactly, no.
PN265
Can you remember who said what? So when you arrived who spoke?‑‑‑Not entirely, no.
*** TROY JAMES HUDSON RXN MR SLEVIN
PN266
Can you remember - can you tell the Commissioner what you remember of what was said in the meeting though?‑‑‑That we - - -
PN267
I might see if I can assist. So you remember the purpose of the meeting, what was the purpose of that first meeting, on 24 February?‑‑‑To - to lodge a grievance against - against - yes.
PN268
What was the grievance?‑‑‑About not being selected for the role.
PN269
And Mr Garrett, you say, did all the talking. Do you remember, just briefly, what Mr Garrett said? I see you're reading your statement, just - - - ?‑‑‑Yes.
PN270
Put the statement aside, just turn your mind to that meeting, with Mr Garrett, about the first grievance about not being selected. So must maybe look at me and just tell me what - what you remember Mr Garrett saying?‑‑‑That - that we'd been - we'd been scored - we'd been basically scored, you know, on - on performance and all that sort of thing. That some people - were most of my gang had been scored quote low and we'd - yes.
PN271
Did he say why he thought your gang had been scored low?‑‑‑He said because of certain - certain job selections and all that sort of - sort of thing, yes.
PN272
Did Mr O'Leary say anything about that?‑‑‑I - not that I - I can't actually remember what - what he was - what he said, yes.
PN273
Do you remember if Mr O'Leary had reference to any documents or anything? Did he have anything in front of him?‑‑‑Not that I can remember, no.
PN274
How long did the meeting go?‑‑‑It lasted probably half an hour, I think.
PN275
Can you remember anything else of what Mr Garrett said?‑‑‑No, I can't.
PN276
That's all, Commissioner.
PN277
THE COMMISSIONER: Could I just ask you, you've gone back to work there as a supplementary employee, is that right?‑‑‑Yes. Yes, it is.
PN278
And you've been working doing pinman work?‑‑‑Yes.
*** TROY JAMES HUDSON RXN MR SLEVIN
PN279
That's one of the things that you didn't get a score on in this - - -?‑‑‑Yes.
PN280
- - - selection process, pinman score, do you remember that?‑‑‑Yes.
PN281
Also the other one was truck marshalling, wasn't it?‑‑‑Yes.
PN282
You didn't get a score for that either?‑‑‑No.
PN283
It wasn't included as part of your scoring process, is that right?‑‑‑No. No.
PN284
I think what you say, correct if I'm wrong, but you believe you should have been given a score, some score should have been attributed to you for the pinman skill and the truck marshalling, is that right?‑‑‑Yes, because - because we're in gangs, yes, so we'd come out of the machine and actually do pins a lot.
PN285
Yes. Had you been doing that before automation?‑‑‑Yes.
PN286
What about the truck marshalling?‑‑‑Yes.
Thank you. Anything arising from my questions at all? No? All right. Thank you for giving your evidence, you're released and discharged, you can leave now if you like.
<THE WITNESS WITHDREW [11.32 AM]
PN288
THE COMMISSIONER: We might take a short break, Mr Slevin, before we go to the next witness, if that's all right. So we'll adjourn for about 10 or 15 minutes.
SHORT ADJOURNMENT [11.32 AM]
RESUMED [11.51 AM]
PN289
MR SLEVIN: Next witness, Commissioner, is Steven Lee.
THE COMMISSIONER: Mr Lee, thank you.
<STEVEN LEE, SWORN [11.52 AM]
*** TROY JAMES HUDSON RXN MR SLEVIN
EXAMINATION-IN-CHIEF BY MR SLEVIN [11.52 AM]
PN291
MR SLEVIN: Is your name Steven Lee?‑‑‑That's correct.
PN292
And your address (supplied)?‑‑‑That's correct.
PN293
You've prepared two statements for these proceedings?‑‑‑Yes.
PN294
Have you got them with you?‑‑‑Yes.
PN295
Is the first one nine pages with your name and the date of 6 November 2015 on it?‑‑‑Nine, 10, yes.
PN296
You've got 10 pages?‑‑‑Yes.
PN297
How many paragraphs, 34? You might be looking at the second statement then, Mr Lee. I'm after the November one?‑‑‑6 November?
PN298
Yes. It's 34 paragraphs?‑‑‑Yes.
PN299
Has it got page 9 at the bottom of it?‑‑‑Yes.
PN300
So you're familiar with that document?‑‑‑Yes.
PN301
Are the contents of that document true and correct?‑‑‑Yes.
PN302
I tender the statement of Steven Lee dated 6 November 2015.
THE COMMISSIONER: The document is tendered and admitted without objection and becomes exhibit 12. Exhibit 12 is described as witness statement of Steven Lee dated 6 November 2015, exhibit 12.
EXHIBIT #12 WITNESS STATEMENT OF STEVEN LEE DATED 06/11/2015
PN304
MR SLEVIN: The other document of Mr Lee has also got the title of witness statement of Steven Lee.
*** STEVEN LEE XN MR SLEVIN
PN305
THE COMMISSIONER: Yes.
PN306
MR SLEVIN: It's seven pages and has the date 9 December 2015 on it, is that correct?‑‑‑Yes.
PN307
The contents of that document Mr Lee, are they true and correct?‑‑‑Yes.
PN308
I tender the witness statement of Steven Lee dated 9 December 2015.
THE COMMISSIONER: The document is tendered and admitted without objection. This becomes exhibit 13 and exhibit 13 is described as further witness statement of Steven Lee dated 9 December 2015, exhibit 13.
EXHIBIT #13 FURTHER WITNESS STATEMENT OF STEVEN LEE DATED 09/12/2015
PN310
MR SLEVIN: Commissioner, just for your benefit, you will recall when I opened, I talked about those tables of scores. You'll see Mr Lee's statements at SL5. There's a table of the scores with the ID number of the employee along the left hand side and the identity of the supervisors across the top, for the total scores. And then Mr Lee's second statement provides a further example of the scoring broken down by category at SL2. That's the evidence-in-chief of Mr Lee.
PN311
MR DARAMS: No questions for this witness.
PN312
THE COMMISSIONER: No questions? No cross-examination?
PN313
Can I just confirm Mr Lee, before automation, before all this happened, you were a crane driver, is that right?‑‑‑Yes.
PN314
Your preferences, I'm sorry where are they? Your preferences with teleops?‑‑‑Crane driver, teleop and reefer.
PN315
Good, thanks for that?‑‑‑Thank you.
I take it there's nothing arising from that, no. You're released and discharged. Thank you for giving your evidence, Mr Lee.
*** STEVEN LEE XN MR SLEVIN
<THE WITNESS WITHDREW [11.57 AM]
MR SLEVIN: Our last witness is Mr McCarthy.
<DARREN MCCARTHY, SWORN [11.58 AM]
EXAMINATION-IN-CHIEF BY MR SLEVIN [11.58 AM]
PN318
MR SLEVIN: Is your name Darren McCarthy?‑‑‑Yes.
PN319
And your address is (supplied)?‑‑‑It is, yes.
PN320
You've prepared one witness statement for these proceedings?‑‑‑Yes.
PN321
Do you have a copy of that with you Mr McCarthy?‑‑‑Yes.
PN322
On page 13 of the document you have, is it 48 paragraphs, page 13 bears your name and the date 8 December 2015?‑‑‑Yes, that's correct.
PN323
The contents of that witness statement, Mr McCarthy, are they true and correct?‑‑‑Yes.
PN324
I tender the witness statement of Darren McCarthy.
THE COMMISSIONER: Thank you, that document is tendered and admitted without objection and will become exhibit 14. Exhibit 14 is described as witness statement of Darren McCarthy dated 8 December 2015, exhibit 14.
EXHIBIT #14 WITNESS STATEMENT OF DARREN MCCARTHY DATED 08/12/2015
PN326
MR SLEVIN: That's the evidence-in-chief of Mr McCarthy.
PN327
THE COMMISSIONER: Thank you. Mr Darams?
*** DARREN MCCARTHY XN MR SLEVIN
*** DARREN MCCARTHY XXN MR DARAMS
MR DARAMS: Yes.
CROSS-EXAMINATION BY MR DARAMS [11.59 AM]
PN329
MR DARAMS: Mr McCarthy, could I ask you to go to paragraph 30 of your statement?‑‑‑Yes.
PN330
You say there, you identify the four shift manager who gave you a score and that your complaint is that you did not work with them and therefore their scores shouldn't have been counted. Is that correct?‑‑‑That's true.
PN331
But you don't dispute that Mr Bishop and Mr Gardener worked with you?‑‑‑I haven't disputed that.
PN332
In fact I think you say at paragraph 34 that Mr Bishop gave you a four for job performance. See that?‑‑‑Yes.
PN333
That's not correct, is it? Do you want to go and check that up, page 32 of your statement?‑‑‑No, it's not, no.
PN334
You go and say in paragraph 35 that Mr Bishop gave you a four. Now that's not correct either, is it?‑‑‑No.
PN335
You say in paragraph 36 that Mr Bishop gave you a four for being extremely reliable and punctual, but that's not correct either is it?‑‑‑No.
PN336
You say in paragraph 37 that Mr Bishop gave you a score four for a particular item and that's not correct either, is it?‑‑‑No.
PN337
Nothing further.
PN338
THE COMMISSIONER: No re-examination?
PN339
MR SLEVIN: No.
THE COMMISSIONER: Thank you for giving your evidence Mr McCarthy. You're release and discharged, thank you.
<THE WITNESS WITHDREW [12.03 PM]
*** DARREN MCCARTHY XXN MR DARAMS
PN341
MR SLEVIN: They're the witnesses for the applicants.
PN342
THE COMMISSIONER: Well, we've moved along fairly quickly.
PN343
MR DARAMS: We have. So we are now to our witnesses and our only witness is Mr Cheng. I was wondering whether it would be possible to take an early lunch and adjournment just because there are some things I have to ask Mr Cheng arising from the evidence of Mr Freestone as to formulate what, if anything further I need to lead from him in answer to that. I've spoken with my learned friend and I think that would also assist him in terms of Mr Cheng's statement which was served overnight.
PN344
THE COMMISSIONER: I'm happy to do that. I think we've moved much faster than I anticipated in a lot of this.
PN345
MR DARAMS: I think we're relatively comfortable on this side that we'll finish off on the bar table and we'll finish the evidence today.
PN346
THE COMMISSIONER: And have submissions tomorrow.
PN347
MR DARAMS: Yes, that's what we propose.
PN348
THE COMMISSIONER: All right, well that's good because I've got some reserved decisions that I've got to attend to later if I can, so there's always the opportunity if a matter doesn't go for the full time it's been allocated.
PN349
MR DARAMS: Absolutely. I think we identified earlier today that we thought we'd be able to run it efficiently to get to this stage.
PN350
THE COMMISSIONER: So we'll take a slightly longer lunch break, if you like. What if we aim to resume at say 1.45pm? On that basis we'll adjourn till then.
LUNCHEON ADJOURNMENT [12.04 PM]
RESUMED [1.52 PM]
PN351
THE COMMISSIONER: Mr Darams.
MR DARAMS: Yes, we're now onto our case, so I'll call Mr Cheng.
<TIMMI CHENG, AFFIRMED [1.52 PM]
EXAMINATION-IN-CHIEF BY MR DARAMS [1.52 PM]
PN353
MR DARAMS: Mr Cheng, you've prepared two written statements in these proceedings?‑‑‑Yes.
PN354
First of those is dated 30 November 2015 and is 131 paragraphs in length?‑‑‑Yes.
PN355
Have you had a chance to read that statement before coming here today to give evidence?‑‑‑Yes.
PN356
Having had that chance, do you say the information contained in the statement is true and correct to the best of your information and belief?‑‑‑yes.
PN357
I tender that statement?
PN358
THE COMMISSIONER: Is there any objection to its admission?
PN359
MR SLEVIN: No.
THE COMMISSIONER: The document is tendered and moved without objection and this becomes exhibit 15 and exhibit 15 is described as the witness statement of Timmi Cheng dated 30 November 2015.
EXHIBIT #15 WITNESS STATEMENT OF TIMMI CHENG DATED 30/11/2015
PN361
MR DARAMS: Commissioner, we have a paginated version of Mr Cheng's statement and Mr Cheng has a paginated version but I don't think the one filed with the Commission is paginated but we'd hand that up for the ease of the Commission.
PN362
Mr Cheng the second statement you made in these proceedings is dated 14 December 2015 and is 24 paragraphs in length. Is that correct?‑‑‑Yes.
PN363
Have you had the chance to read that statement before coming here today to give evidence?‑‑‑Yes.
*** TIMMI CHENG XN MR DARAMS
PN364
And having had that chance, do you say the information contained in the statement is true and correct to the best of your information and belief?‑‑‑Yes.
PN365
I tender that statement.
THE COMMISSIONER: No objection? The document is tendered and admitted without objection. This becomes exhibit 16. Exhibit 16 is described as the supplementary witness statement of Timmi Cheng dated 14 December 2015.
EXHIBIT #16 SUPPLEMENTARY WITNESS STATEMENT OF TIMMI CHENG DATED 14/12/2015
PN367
MR DARAMS: Mr Cheng, could I ask you to go to the second of your statements and ask you to go to paragraph 11?‑‑‑Yes.
PN368
In that paragraph you have included a table whereby you have set out some recalculated scores for Mr Lee, do you see that?‑‑‑Yes.
PN369
You understand that Mr Lee also sought, as one of his preferences, the position of reefer monitor. Do you understand that?‑‑‑Yes.
PN370
Is there a reason why you haven't given a score in that table in paragraph 11 for reefer monitor?‑‑‑The reefer role was out of scope for selection.
PN371
When you say out of scope, what do you mean by that?‑‑‑We didn't run the selection process through that because there were no vacancies.
PN372
You were also in court earlier this morning when Mr Freestone gave some evidence about what he said was a fairer basis to calculate productivity score. You were in court and you heard the evidence he gave?‑‑‑Yes.
PN373
Do you recall the evidence he gave?‑‑‑Yes.
PN374
What do you say about that evidence?‑‑‑I think it's a different way to calculate the productivity scores but I don't think that it's a fairer way.
*** TIMMI CHENG XN MR DARAMS
PN375
Can you make any comment about why you say it's not a fairer way to calculate the score?‑‑‑So, from what I understand of what Mr Freestone said, was to look at the performance across an entire vessel and to average all of the crane shifts across that entire vessel during its stay at the port. By making that average, what that will do, is it will, by virtue of that calculation, bring down the score, or sorry, the number of lifts for genuinely high performing crane shift and also by virtue of the calculation move up the number of lifts for genuinely lower performing crane shifts.
PN376
That's the evidence-in-chief.
THE COMMISSIONER: Cross-examination Mr Slevin.
CROSS-EXAMINATION BY MR SLEVIN [1.58 PM]
PN378
MR SLEVIN: Just on that last point Mr Cheng, it's rather the point though, isn't it, that Mr Freestone is making. He's saying that what's happening is that there are gangs on shifts who perform very well because they've got the easy lifts. You understand that that's what he's saying, don't you?‑‑‑I understand that's what he's saying.
PN379
What he was looking for is saying well that's not fair to those who are working on the same vessel, but they've got the difficult lifts because of the environment that they have to perform the lifts in. You've seen his charts attached to his statement?‑‑‑Yes.
PN380
You don't disagree with him that that's the case. There are parts of the vessel the lifts are difficult because of simply the environment they're working in. You agree with that, don't you?‑‑‑There are parts, just like there are parts for every vessel.
PN381
If you've the sort of driver who gets allocated to go to that part of the vessel because you're good at moving the boxes around in that part of the vessel, the way you've done the productivity scores, you're disadvantaged, aren't you?‑‑‑I don't agree that people are assigned in that way.
PN382
But if they are assigned in that way, they would be disadvantaged, wouldn't they, the way you've done it? Just goes without saying, it speaks for itself that proposition, doesn't it?‑‑‑Well, if they are, but I'm saying that they are not assigned in that way.
*** TIMMI CHENG XXN MR SLEVIN
PN383
So your complaint is not the way Mr Freestone says the calculation was done, you're saying to Mr Freestone "Look, you don't need to do that because I don't think they're assigned that way"?‑‑‑I don't think I'm making a complaint.
PN384
Sorry, you're disagreement with Mr Freestone about whether his method was fairer or not, is a disagreement based on your understanding of how the work is allocated rather than whether the numbers could be more fairly allocated if it was done that way?‑‑‑I think by calculating an average, you're changing somebody's number of lifts that had occurred on the shift.
PN385
Yes, that's right, but if Mr Freestone is right, and I'll just ask you to make the assumption, I don't want you to concede that he's right, but make the assumption that he's right, that's the way the work is allocated, in other words, those who are good at the difficult lifts, get allocated to the difficult lifts. Isn't Mr Freestone's way of doing it fairer?‑‑‑No, I still don't think so because - I still don't think so.
PN386
Do you have any reason for not thinking so?‑‑‑Because when that particular shift is finished and the averaging is done in that particular way, then to look at performance over a period of time, you would need to then look at how that occurs across multiple shifts and so then, presumably you are taking an average across multiple shifts of an average that you've already calculated that has changed the number of lifts per person.
PN387
You're doing the average, so if a gang works well or the gangs work well on one vessel, and the next vessel comes in and they don't work so well, that's going to bring their numbers down. They work average on the next and the median sort of number, it will reflect though, over a 12 month period the work that they're performing by taking into account a number of different vessels over that period of time?‑‑‑I don't think it does, because you're taking an average and pressing the information - changing the information.
PN388
If we go to your first statement, paragraph 24, you've provided us with the reference guide to the company's management and human resource employees to ensure the correct selection procedure was followed. If you go to it, so it's the selection process and criteria for EA employees. That's the selection process that was developed internally by the company then for consultation. Am I right in describing it that way?‑‑‑What page is that, sorry.
PN389
It's TC9 and it's page 172?‑‑‑Yes.
PN390
You describe that in your statement at paragraph 24 as the policy document. It's not a policy document though, is it?‑‑‑No, it's a document that describes the process we're undertaking to perform the selection process.
*** TIMMI CHENG XXN MR SLEVIN
PN391
It was never called a policy document at the time that it was developed, was it?‑‑‑I don't know.
PN392
It's not described there at page 172 as a policy document. Nothing in the document itself describes what it's doing as formulating a policy, does it?‑‑‑Not in the description no, but it's a process of what we're going to apply for the selection criteria.
PN393
In any correspondence that you had with the union, it wasn't called a policy document, was it?‑‑‑I can't recall.
PN394
You can't recall, because it wasn't. You never described it as the policy. This is the company's policy on selection for training and allocation of roles at Port Botany, wasn't it? It was never called the company policy?‑‑‑No, I can't recall. There's lots of correspondence.
PN395
I'm putting to you that it just was never called - it was never regarded as a policy. What do you say to that?‑‑‑I can't recall. There's lots of correspondence.
PN396
There are documents that you deal with though in your job that are called company policies aren't there?‑‑‑Yes we do have policies.
PN397
They're generally Asciano policies, aren't they?‑‑‑They are multiple. Not necessarily.
PN398
Indeed, and policy documents are referred to - or company policies are referred to in the agreement behind TC1 which starts at page 24. If you go to paragraph 8.5 it says "Nothing contained in a policy or procedure shall have any effect to the extent its inclusion or implementation is inconsistent with this agreement." That's a reference that the parties understand as being referenced to the company's policies that were in existence at the time the agreement was made. Do you understand that to be the case?‑‑‑Sorry, what was the question?
PN399
That reference in the agreement is a reference to policies that were in place when the agreement was made?‑‑‑I don't know if that would be the case.
PN400
You don't understand that to be the case? Well, let's take it this way?‑‑‑Policies get developed over time.
*** TIMMI CHENG XXN MR SLEVIN
PN401
Over time, and the policies that get developed are policies that the company has. There's an annual leave policy. Are you familiar with the annual leave policy?‑‑‑Yes.
PN402
There's a recruitment and internal movements policy. Are you familiar with that one?‑‑‑Yes.
PN403
There's a mobile telecommunication services policy. Are you aware of that one?‑‑‑Yes.
PN404
There's a car park and office accommodation policy. You're aware of that?‑‑‑I'm not aware of that one.
PN405
What about the cashing out of leave policy?‑‑‑I'm not aware of that one.
PN406
A code of conduct?‑‑‑Yes.
PN407
That's a policy, isn't it? There's a community and other leave policy?‑‑‑Not aware of that one.
PN408
Disaster leave policy?‑‑‑Not aware.
PN409
Diversity policy?‑‑‑I'm aware of that one.
PN410
A domestic relocation policy?‑‑‑I'm aware of that one.
PN411
There's an email and internet usage policy?‑‑‑Yes, I'm aware of that one.
PN412
There's an equal employment opportunity policy?‑‑‑Yes.
PN413
A flexible work arrangements policy?‑‑‑Yes.
PN414
There's a fraud and corruption prevention policy?‑‑‑Yes.
PN415
A grievance resolution policy?‑‑‑Yes.
*** TIMMI CHENG XXN MR SLEVIN
PN416
Indigenous employment policy?‑‑‑Yes.
PN417
The internet access policy?‑‑‑yes.
PN418
Then an IT acceptable use policy?‑‑‑Yes.
PN419
A job sharing policy?‑‑‑Yes.
PN420
A leave of absence policy?‑‑‑Yes.
PN421
Leave without pay policy?‑‑‑yes.
PN422
Long service leave policy?‑‑‑Yes.
PN423
Personal and compassionate leave policy?‑‑‑Yes.
PN424
Prevention of bullying, harassment and discrimination policy?‑‑‑Yes.
PN425
Purchase additional leave policy?‑‑‑Yes.
PN426
A redundancy policy?‑‑‑Yes.
PN427
A remuneration policy?‑‑‑Yes.
PN428
A secondary employment policy?‑‑‑Not aware.
PN429
There's a social media policy?‑‑‑Yes.
PN430
There's a tertiary assistance policy?‑‑‑Yes.
PN431
Values and behaviours policy?‑‑‑Yes.
PN432
A whistleblower policy and procedure?‑‑‑Yes.
*** TIMMI CHENG XXN MR SLEVIN
PN433
A work experience policy?‑‑‑Not aware of that one.
PN434
I just want to put to you that they're the company policies at the moment. I'll just show you an example of one of them. Do you recognise that as the annual leave policy?‑‑‑Yes.
PN435
You see the policy has a form. It's pretty much a standard form, isn't it. Policies have this format where they start with an overview of the policy, it says what the policy does. In this example the policy sets out conditions for the management of annual leave in order to ensure that employees are aware of their entitlements and that annual leave liability is minimised across the business. You recognise that as pretty much standard form introduction to the policies?‑‑‑Of this one, yes.
PN436
Do you say that that's not the standard form? I can show you some other examples, if you like. Are you familiar with these policies or not?‑‑‑Yes I am.
PN437
Isn't it the case that all of the policies start that way?‑‑‑Yes.
PN438
Then there's a scope and application clause that describes how the policy applies to all Asciano employees and rescinds previous group and divisional policies. I put it to you that that's a pretty much standard provision in these policies as well. That's the case isn't it?‑‑‑Yes, I see that there.
PN439
You see that there on that document, but in your position you must be - you told me I just went through a list of them, and you told me you're familiar with a number of them?‑‑‑Yes.
PN440
You're familiar with that sort of format as being the policy, aren't you?‑‑‑Yes.
PN441
Then there's a policy statement and then it goes into the substance of the policy and that's pretty much your standard format for the way these policies work, isn't it?‑‑‑For these policies, yes.
PN442
And for the policies I described to you. Do you say there are documents other than these sorts of documents that exist that are policies as well, do you?‑‑‑I would say there is, yes.
*** TIMMI CHENG XXN MR SLEVIN
PN443
See, I put to you that certainly TC9 is not a policy. It doesn't look anything like that annual leave policy that I showed you to start with. That's because it's not a policy, is it?‑‑‑It's a policy that describes the process that we undertook for their selection.
PN444
So you say that when the agreement refers to company policies, or refers to anything that the company is doing?‑‑‑I guess if it's contained in a process and a document, yes.
PN445
Any process that the company undertakes, you say is a policy contemplated by clause 8.5 of the agreement. Is that what you're putting to the Commission?‑‑‑No, not necessarily.
PN446
No, you can't put that, can you, because the company does have policies and the type of policies that it has are the one I've just shown you, the list I've just read to you. They're the company policies, aren't they?‑‑‑These are some of the company policies, yes.
PN447
Some of them. I first of all put to you the list I read to you are all of them. What do you say to that? Do you say that there are other policies?‑‑‑I can't be sure.
PN448
I'm instructed that in the current negotiations for the enterprise agreement, the union asked for a list of the company's policies and this is the list that they were given?‑‑‑Okay.
PN449
Do you think that's wrong? That my instructions are wrong?‑‑‑I don't know, I wasn't involved in that process.
PN450
Certainly, have you brought to anyone's attention in Asciano, that there's a further policy that exists and that TC9 is a further policy of the company?‑‑‑The document in TC9 was put forward and endorsed by the steering committee of the project.
PN451
Was it put forward as a new company policy?‑‑‑It was put forward as the process for selection criteria.
PN452
Is the answer no, it wasn't put forward as a company policy?‑‑‑Not as a policy by name, no.
*** TIMMI CHENG XXN MR SLEVIN
PN453
Thank you. In paragraph 41 of your statement you provide the Commission with 2C12 which is page 224 of your statement which is a two page document. I understand you've created this document for the purposes of the proceedings. Is that correct?‑‑‑Yes.
PN454
In doing that, are your source documents the documents that were provided to the employees in the various information packs that give the roll preference forms and then describe the selection criteria for each of the positions that people could allocate preference for. Are they the source documents for this table?‑‑‑Yes. The position summaries for each position.
PN455
So the position summaries contain, first of all a description of the duties etcetera, and then there's the selection criteria. Your intention was to identify all of the jobs that were available for employees to indicate a preference for, first of all? So that's the first row of the table, where you've described the positions?‑‑‑Yes.
PN456
So your intention was to identify all of the jobs that were available for employees to indicate a preference for, first of all, so that's the first row of the table where you've described the positions?‑‑‑Yes.
PN457
And then each of the columns under each of those position descriptions indicate how points would be allocated to determine the ranking of employees that ultimately determine the offers for training and then positions, that's right?‑‑‑Yes.
PN458
All right. And so if we look along that top row we see the positions available are crane operator, team leader crane, workplace trainers, team leader - lashing, team leader - yard, tele ops operator, senior clerk, tower clerk, reefer, safety facilitator, team leader rail, rail co-ordinator, first aid, bus driver, and then crane operator, PIR, and then other PIR roles. So that describes the positions that are available at the terminal or that are being worked at the terminal now as a result of the selection process, does it?‑‑‑No, it describes the selection process for each particular role if they were, yes, in the scope for selection.
PN459
I see. So there are some other positions being worked at the terminal that are not included in this list, is that what you're saying?‑‑‑Well, more what I'm saying is that for some of these they were out of scope for the purposes of the selection.
PN460
So which ones were the out of scope ones?‑‑‑Workplace trainers, team leader lashing - - -
*** TIMMI CHENG XXN MR SLEVIN
PN461
So just those two on the first page, the workplace trainers and when you say, "out of scope", you might explain that for the Commissioner. I don't think that's come up in the material. You mentioned it earlier?‑‑‑Yes. So by "out of scope", what that means is that those roles were currently filled by people already and for the purposes where, through the expression of interest process, an individual wished to go for a voluntary redundancy, in that event there would be a criteria and a process to do that selection to fill that role.
PN462
All right. Now you've said that those are the positions, along the top row and that's contrary to what you say in paragraph 38 of your statement where you say that there were no PIR crane or PIR tower clerk positions at the terminal. Certainly we saw from that list that there were PIR crane driver positions at the terminal and I gather from what you've just said that that his the case, and so paragraph 38 is incorrect, isn't it?‑‑‑That is correct.
PN463
Now if I go to paragraph 49 of your statement, Mr Cheng, in paragraphs 49 and 50 you're saying that the MUA purportedly acted on behalf of employees. You don't have any doubt, do you, that the MUA was acting on behalf of its members in this grievance process, do you?‑‑‑Almost all of the applications for grievances came from the MUA.
PN464
Yes, but you're saying they were purportedly on behalf of the employees. I'm just wondering why you're using the word, "purportedly", there. It's actually the case that the employees were represented by the MUA. You understand that to be the position and you're not casting any doubt on it here, are you?‑‑‑I understand that they can choose to be represented by the MUA, yes.
PN465
Yes, and the agreement allows them to be represented by the MUA and - - -?‑‑‑Yes.
PN466
And it's almost always the case that the employees are represented by the MUA matters within the company. That's the case, isn't it, of your terminal?‑‑‑Most yes, almost all, yes.
PN467
And you're talking also about there being pro forma grievance notices. There's a coupe of examples in the material and I don't think I need to trouble you with them. There seems to be a company pro forma document and another document that the MUA was using. You don't take any issue with that, do you, that there was some pro forma grievance notice being used by the union, do you? There's no requirement that it be in a particular form?‑‑‑No.
PN468
No?‑‑‑That's how it was presented.
*** TIMMI CHENG XXN MR SLEVIN
PN469
And the grievance procedure so you've described the grievance procedure and I think the numbers and the appeal process. Just as a matter of procedure, at the end of the grievance procedure there are three options available if the matter can't be resolved otherwise, for an external review of a grievance. You're familiar with that. I don't want to test you. It's not a memory test so I'll take you to it. It's in schedule 3 of the agreement which is page 74 of the statement. And you'll see there clause 8, the last clause is, "In the event that the concern cannot immediately be alleviated by management and depending on the nature of the alleged grievance, one or more of the following options shall be adopted as a means of resolution". Now the nature of the alleged grievances here were the employees' complaints about the selection criteria and how that was applied and whether it was fair or unfair. Do you accept that characterization, Mr Cheng?‑‑‑Yes.
PN470
And it was the case, wasn't it, that the nature of that grievance was such that further discussions between management, the employee and/or the union/employee representatives, was not an option to resolve the dispute? That was the case, that it's the way these grievances developed, isn't it?‑‑‑Yes. After going through a grievance process and an appeal process.
PN471
Yes, that's right. And in terms of whether the option of the reference to a mutually agreed conciliator/arbitrator was an appropriate option, it's the case, isn't it, that there was no agreement on a conciliator or an arbitrator for the purpose of that provision, was there?‑‑‑There was discussions between the parties for that process.
PN472
And as I understand those discussions there was a view as to what powers the agreed conciliator or arbitrator should exercise. That's the case, isn't it?‑‑‑Part of the discussion, yes.
PN473
And there were discussion about whether Deputy President Sams would be that conciliator or arbitrator, wasn't there?‑‑‑Yes.
PN474
And ultimately, agreement couldn't be reached and I think in the decision of early this year, Deputy President Sams made some comments about the fact that there was no agreement as to him taking up the role of the agreed conciliator/arbitrator. That's the case, isn't it?‑‑‑From memory, yes.
PN475
And what happened was that there was no mutually agreed conciliator/arbitrator and so 8.2 wasn't available for these grievances, was it?‑‑‑After attempts by the parties, no.
PN476
I'm not making any criticism of the parties. It just happened that there was no agreement, was there?‑‑‑No.
*** TIMMI CHENG XXN MR SLEVIN
PN477
And so the only appropriate means of resolving these grievances was the reference to the Commission in accordance with schedule 1 of the agreement. That's how things unfolded, isn't it, Mr Cheng?‑‑‑That's the part of the process we're in now, yes.
PN478
And it was the only option available after because the first two were not appropriate options for these grievances, were they?‑‑‑Well, I don't know that necessarily they sequentially must happen, one after the other.
PN479
No, and indeed one or more of them can be used but I'm talking about in the circumstances of these grievances, it turns out that the only option was that third one, wasn't it?‑‑‑Well, that's our option now, yes.
PN480
Yes, and not being critical of anyone but it's just the way these grievances have unfolded, there was only the one option in the end and that was the - - -?‑‑‑There was three options.
PN481
There were three options but in the end, after going you're agreeing with me, the first option was not appropriate, the second option, there couldn't be agreement, so that just left the third option?‑‑‑Yes.
PN482
Yes?‑‑‑That's about right.
PN483
And just in terms of the so that we don't have to be jumping in and out of this document, in terms of the provisional appointments that you talk about in your statement, that arises because of this procedure, doesn't it, at clause 7 of the schedule, that any selection or appointment made shall be provisional only and that's why you've made the appointments that you have on a provisional basis? I'm right in that, aren't I, Mr Cheng?‑‑‑Yes.
PN484
And so at the moment, all of the appointments of all of those people doing the work at the terminal in those positions we described in TC12, are all appointments that are provisional upon the outcome of these grievance proceedings?‑‑‑Yes.
PN485
That's the case, isn't it?‑‑‑Yes.
PN486
So you'd agree with me, wouldn't you, that it's both in the employee's interests and in the company's interest that the grievances get resolved?‑‑‑Yes.
*** TIMMI CHENG XXN MR SLEVIN
PN487
Now if we go to the actual assessment process, the shift manager's assessments you describe for us in your statement, starting at paragraph 60, you say that or you provide for us, TC13 which is page 226, and that's a sample of the score sheet that was filled in by the managers, isn't it?‑‑‑Yes.
PN488
Now you refer in your statement to these being subjective scores but the scoring process, regardless of whether you call it subjective or otherwise, the requirement of the managers was to apply these guidelines to each of these assessments. So for example, when an assessment was being made of safety, the application of the points it wasn't something where the manager just thought of the employee and thought, all right, I'll give them a score between one and five. They had to apply this guidance that's described in the form. That's how it worked, isn't it?‑‑‑Yes. It is a it's a scale for - - -
PN489
So there's a scale - - -?‑‑‑For a score.
PN490
And the guide to where someone would be on the scale is the description here. So it's not just the we give the supervisors free reign, we say to them, "You apply these guidelines to the score you give on the scale". That's right, isn't it?‑‑‑It's a guidance, yes.
PN491
Now the next question goes to the specifics of the topics assessed. The first one is safety, and see how every employee on the terminal will have to have regard to safety, I'm interested in the second category, which is "customer". So they always seek to deliver what has been promised to the customer as, say 4 for the customer rating. Who is the "customer" in that I'm not sure if it's a topic or category of assessment?‑‑‑Customers can be various people from shipping line customers to trucking companies.
PN492
So are they customers of the business?‑‑‑Yes.
PN493
I'm just wondering, when these scores are applied to someone like a straddle driver - - -?‑‑‑Yes.
PN494
They wouldn't have any interaction with the customer, would they?‑‑‑Insofar as the performance that they need to deliver and do things on time, meet certain performance levels.
*** TIMMI CHENG XXN MR SLEVIN
PN495
All right. But "actively seeking to understand the customer's needs and to deliver a service that meets or exceeds customer's expectations", for a straddle driver, how would they they wouldn't be able to meet that, would they, because the work they do doesn't require them to understand the customer's needs and deliver a service that meets or exceeds the customer's expectations, would they?‑‑‑It does in terms of their level of performance required in a particular shift. It's actually - - -
PN496
It's more in a general sense?‑‑‑To be able to get a ship out on time or, you know, how we deal with customers and road carriers by phone.
PN497
But a straddle driver wouldn't I'm talking about a particular role. I could understand a clerical worker would, may be dealing with trucking companies or shipping companies all the time, I expect?‑‑‑M'mm.
PN498
But "straddle driver" wouldn't be dealing with the customers, would they?‑‑‑Not directly. Indirectly, in terms of, you know, being able to work to get the, you know, performance levels required.
PN499
If we go to the last, under section 1, the last of the categories, "The performance can include the crane/yard/straddle". Why is the distinction made there between crane, yard and straddle? It seems that that score has been applied to everyone, hasn't it? Didn't everyone get all four of these categories scored against?‑‑‑Yes, they did.
PN500
Why is "crane/yard/straddle" identified there in brackets?‑‑‑As a guide, it says, "can include".
PN501
So it's a guide, is it? I just don't understand why it's a guide. If there's a performance because section 2 is "job performance". It seems to double up. There's a "performance" under the "Shift manager score, our values in action", and then there's a "job performance" and a whole section on job performance. Can you explain the difference between those two? Is there a difference between them?‑‑‑So in section 1, it's around providing scoring against our values, one of which is performance. In section 2, it goes in to more detail and it's more descriptive about different elements of job performance.
PN502
I'll just go back. So is it the case that everyone on the terminal was scored on the customer basis, wasn't it, whether they were crane drivers or straddle drivers or clerical workers?‑‑‑Yes.
*** TIMMI CHENG XXN MR SLEVIN
PN503
Now you've got, in section 2, the job performance and then I won't go through the descriptions with you but they're described generally as, "does not meet", "partially meets", "meets expectations", "exceeds expectations", and "far exceeds". You described in your statement, and I want to focus on the, "extremely reliable and punctual", and "the attendance is outstanding and always follows standard procedures when unable to attend for work". Now it seems that those sorts of factors should be objective factors. Being reliable and punctual should involve just turning up on time for your shift. Now you say in your statement that you expected that the supervisors, when giving a score on this, took into account things like being late for crib and that sort of consideration. Are those sorts of things are objectively measurable, aren't they? If someone's late for work you would have a record for it, wouldn't you?‑‑‑Not easily identifiable, no.
PN504
But if shifts start late or a gang starts late because someone's late for work, you'd know, wouldn't you? You'd have a record of that because there are shift logs?‑‑‑Yes but we don't have records down to that level of detail.
PN505
But there is the availability for shift supervisors to record in shift logs, things like, late starting because someone's not turned up. That's part of the purpose of the shift logs, isn't it, for shift managers to record events that have an effect on the work that day?‑‑‑Yes, that's where those things are recorded.
PN506
That's right. Now, similarly, if a gang is late because someone's late from crib, that would be recorded in something like a shift log, wouldn't it?‑‑‑No, it's not recorded.
PN507
So if that's not recorded, when the shift supervisors were making these scores, did they have to rely simply on their memory or their impression over a 12 month period as to whether an individual was responsible for turning up late for a shift or coming back late for crib? Is that what you're suggesting in your statement was the exercise you expected the supervisors to undertake?‑‑‑Yes. They were, through the experience of working with those individuals, to record their assessment based on that experience.
PN508
So it's just on their impression? It's not by reference to any actual record?‑‑‑No.
PN509
And it seems that these eleven supervisors, by and large, had to make that assessment about everyone who worked in the terminal in those positions?‑‑‑Most, yes. There were some that weren't - - -
PN510
So something like 300 employees, 290 employees?‑‑‑Yes.
PN511
So one shift supervisor had to sit down and turn their mind to over a 12 month period for 300 employees, and provide a score as to whether they had an impression that the person was punctual or not?‑‑‑From their experience with those people, yes.
*** TIMMI CHENG XXN MR SLEVIN
PN512
Now when these scores were provided I'll just show you a document, Mr Cheng, which is I don't think it's in your statement. It's SL5, Mr Lee's statement. It's the table of scores provided by the company to the union and referable to the supervisors. You'll recall in your statement you made reference to the table that's in the union submissions. You say you hadn't seen that table, I think or or it might be in your submissions. In any event, I just want to ask you, as a matter of practice by the company, did you go through the exercise of trying to make an assessment as to whether some of the supervisors were generous in the way that they scored and some of them were harsh? Have you done that exercise?‑‑‑Sorry, which table are you referring to?
PN513
Forget my reference to the table. I think I made an error and you didn't you've referred to something else in the submissions and we'll get to that later?‑‑‑Okay.
PN514
I just want you to answer my question which is about, did you analyse these numbers in SL5 to make an assessment as to whether some of the supervisors appeared to be harsh in their scoring, vis- -vis, other supervisors? Did you go through that exercises?‑‑‑Not against other supervisors, no.
PN515
And so in terms of taking, for example, the scores by the first supervisor there, Mr La Roche, for example, and comparing them to Mr Wood, so if you go down or Mr Clayson. If you go down the primary scores written down, please?‑‑‑Yes.
PN516
And looking at that first page, Mr La Roche's scores are 21, 33, 24, 27 and 33, 28, 33, 26, 33, 35, 36, 23, 83, 33, 33, 34, 33, 27, 33, 35 and 23. Now 33 is a, "meet expectations for everything", score, isn't it, if you want to start aggregating things? So if you got a 3 for everything, if you met expectations for everything, you'd expect you'd get a 33?‑‑‑On that basis, yes.
PN517
Yes, and you see - - -?‑‑‑You can also get 33 in other ways.
PN518
Sorry?‑‑‑You can also get 33s if you had a 4 for a component and a 2 for another component.
PN519
Yes, if you've got 4s and 2s, but if you got the (indistinct) expectation for everything you get 33s. Now, you see, it's very rare for Mr La Roche to give anyone above 33. There's only two or three in that list that are above 33. The numbers speak for themselves but I'm just so do you see that? I'm just taking this a step at a time, Mr Cheng?‑‑‑Sure.
*** TIMMI CHENG XXN MR SLEVIN
PN520
And then if you take Mr Clayson, for example, and his primary scores, if you start on the second page we're going to go to someone else. Mr Wood, next to Mr Clayson, do you see Mr Wood starts with a 49, and a 38, 32, a 40, a 54, a 44, a 43. Then he's down at 39 at employee number 23125, then a 33, a 53, a 49 and a 38, and a 53 at employee 25313, a 45, 42, 42, a 31, a 33, 34, 40, 32, 33 and 28. So you see from that exercise, just looing at those two supervisors, you've got a great divergence in relation to the scores. Now do you accept a proposition that one explanation for that is that some of the supervisors were scoring more harshly than other supervisors?‑‑‑No, I don't accept that.
PN521
Well, how can you not accept on those figures on that example?‑‑‑Well, Mr La Roche has also if you look at his secondary scores, scored a 44, a 55, a 44, a 45, and so on. And Mr Woods also conversely has lower scores, you'll see, at 31, 31, 26, 25, I think that there's a broad range of scoring.
PN522
THE COMMISSIONER: Sorry to interrupt. Isn't the analysis of this contained at paragraph 40 of your submissions?
PN523
MR SLEVIN: It is, yes.
PN524
THE COMMISSIONER: Yes.
PN525
MR SLEVIN: And I'm just testing the propositions with the witness about this.
PN526
THE COMMISSIONER: Yes.
PN527
MR SLEVIN: And easier way may be simply to provide Mr Cheng with that table, Commissioner, and I can do that. I've handed the witness pages 12 and 13 of the union's submissions. Have you seen that table before, Mr Cheng?‑‑‑I have.
PN528
Did you do any work to test the calculations in that table?‑‑‑No, I didn't.
PN529
Do you have any reason to doubt those calculations then? If you haven't tested them I imagine the answer's no but - - -?‑‑‑I haven't tested them because I haven't tested them.
*** TIMMI CHENG XXN MR SLEVIN
PN530
So just go back to that example we were doing and I'll ask you to assume that those calculations are correct. Mr La Roche is supervisor 1 and Mr Wood is Supervisor 6. Just in terms of the primary ratings where he was the primary scorer, he rated people an average of 30.29. Now if you go down to Mr - which is the mean score in the fourth column there, you'll see his maximum score was 36, his minimum score was 21, as a primary rater. And then if you go to 6, you'll see that's Mr Wood and his primary he's done 23 ratings against 21 ratings by Mr La Roche, as a primary scorer, and his average was 40.22. So that's a big divergence, isn't it?‑‑‑(No audible reply)
PN531
You agree with that, don't you?‑‑‑Sorry, what was the question?
PN532
It's a big divergence. The average over the 21 ratings done as a primary supervisor, the difference between the 30.29, an average of Mr La Roche, compared to the 40.22 average of Mr Wood, that's quite a big divergence, isn't it?‑‑‑There's a large difference between the means but in terms of, you know, the maximum and minimum, there seems to be a bigger spread from Mr Wood's.
PN533
That's right. Isn't it a matter of concern to you as to how these scores were done? They've got such a large divergence between those two raters?‑‑‑Without seeing those scores relative to other scores for an individual, I don't think we can say that I can say that.
PN534
But you saw in the grievances, didn't you, a number of employees say, "Look, Mr La Roche scored me and he's scoring me at a very low level compared to others who scored me. My concern is that Mr La Roche was too harsh and the fact that you're relying on his score has really disadvantaged me in the selection process". There are a number of grievances that made that complaint, weren't there?‑‑‑Against many shift managers, not just Mr La Roche.
PN535
But Mr La Roche did come up a lot, didn't he?‑‑‑Yes, he did, as did others.
PN536
And in addressing that, did you do anything to do something about those concerns? You didn't do anything to deal with the divergence between supervisors' application of the selection criteria, did you?‑‑‑Yes, we did. We looked at that and investigated that through the grievance and appeal process?
PN537
Yes, and so are they the steps that you describe in your statement, are they? They're the steps that you say you took about that?‑‑‑That's we checked those complaints at each grievance and each appeal.
*** TIMMI CHENG XXN MR SLEVIN
PN538
And so you spoke to them about what they did and you just satisfied yourself that what they did was okay? That's what you say in your statement. And that's all you've done, isn't it?‑‑‑We've looked at, for an individual, what their scores were across all of the shift managers, looked for consistent scoring and, you know, in the case where there was a specific complaint, we looked at that and we did talk to shift managers.
PN539
But you had access to the shift managers to talk to them about how they did their scoring and that was on one question, didn't you?‑‑‑Sorry?
PN540
You had access. So what you've just said is, you did have access to the shift managers to talk to them about their scoring. That's through the investigation process, I did.
PN541
Now the shift managers, I just want to go through them. Mr La Roche, is he still working at the terminal?‑‑‑Yes.
PN542
Mr Lucy, is he still there?‑‑‑Yes.
PN543
Mr Jones, is he still there?‑‑‑No.
PN544
Mr Morgan?‑‑‑Yes.
PN545
Mr Clayson?‑‑‑No.
PN546
Where's Mr Jones?‑‑‑Mr Jones has moved to another part of our business.
PN547
SO he's still working in the company?‑‑‑Yes, he's still with the company.
PN548
Mr Clayson, is he still working in the company?‑‑‑No.
PN549
Mr Wood?‑‑‑Yes.
PN550
Mr Graham, is he still there?‑‑‑Yes.
PN551
Mr Jackson?‑‑‑Yes.
PN552
Mr Katchia?‑‑‑No.
*** TIMMI CHENG XXN MR SLEVIN
PN553
He's not working at the company?‑‑‑No.
PN554
Mr Bishop?‑‑‑No, just recently retired.
PN555
Mr Gardiner?‑‑‑Yes.
PN556
Now in terms of meeting the grievances and the complaints made in these proceedings, it seems most of those supervisors were available to come and give evidence and so that they could explain to the Commissioner how they applied your procedure. They were, weren't they? They were available to do that?‑‑‑Well, if they're with the company.
PN557
Yes, so they're still with the company and they could have come and given evidence and explained why they gave the scores they did?‑‑‑If there was a need to, yes.
PN558
And a decision was made that there wasn't a need to, the Commissioner didn't need to hear from them, your assessment of what they had to say would be good enough. Is that the case, is it?‑‑‑Well, we have the notes around what they've said through the process.
PN559
I want to ask you about that. TC14, you'll see, page 227, you provide the Commissioner with the there's a training presentation, I gather, from your statement, is that the case? Who conducted the training? Did you conduct it?‑‑‑I did, as well as Emma Fraser.
PN560
And you were there?‑‑‑Yes.
PN561
All right. Now in that exercise, and this is a presentation, slide show presentation, was it, a Power Point presentation? Was that the case?‑‑‑Yes, the presentation and a workshop.
PN562
And the purpose was for the supervisors to if we look at page 2, two of the purposes was to understand the rating definitions and to competently explain the reasoning behind the scores that they give. So you were preparing them to be able to do that, is that correct?‑‑‑Yes, through the guidance, yes.
*** TIMMI CHENG XXN MR SLEVIN
PN563
Yes. If you go to page 4. You told them at the time that the shift and yard shift managers should complete this assessment process for all EA employees. There's some suggestion in your statement elsewhere that the supervisors could decline to give assessments for those that they didn't work with?‑‑‑That they feel they couldn't assess, yes, because, yes, they didn't work with enough.
PN564
So did that change occur after this presentation where they were told that they would be doing it for all the AE employees?‑‑‑Yes.
PN565
When did that change occur?‑‑‑I can't recall exactly.
PN566
Well, it must have occurred this was November and the assessments occurred in November and December. It must have occurred around that time?‑‑‑Yes.
PN567
Am I to understand then that the default position was that you'd be doing all of them unless you come and tell us that there's a good reason that you shouldn't be doing some of them?‑‑‑Well, they were allowed then to make that decision.
PN568
They were allowed but the default position is, we're expecting that you'll be doing all of them unless you come and tell us there's a good reason not to do some?‑‑‑No, we allowed them to make that decision.
PN569
So is that a yes or no to the proposition I put to you? The default position was you would do all of them unless you came and saw us and told us you didn't want to do particular individuals?‑‑‑No.
PN570
That's not the default position?‑‑‑No.
PN571
What was the instruction given to them about not doing all of them?‑‑‑If you felt that you couldn't score somebody because you didn't know them, then you shouldn't score them.
PN572
And who gave that instruction?‑‑‑I did.
PN573
When did you give it?‑‑‑I can't recall exactly. Following this presentation.
PN574
Following the presentation, at some stage?‑‑‑Yes.
PN575
What, you had them all together for another purpose, did you?‑‑‑Well, we had them into the office to perform the assessments.
*** TIMMI CHENG XXN MR SLEVIN
PN576
Now if you go to page 5 of your training session, you describe there that "all in scope permanent operation employees with a primary shift manager will receive a score from their primary shift manager". Now who determined who was the primary yard or shift manager for the employees? Did you have a chart and allocate them or did you ask the supervisors to do that themselves?‑‑‑That was predefined before the assessment process started.
PN577
So you allocated. And how did you allocate that? There's been evidence here in these proceedings about "who should have been my primary shift manager and who shouldn't"?‑‑‑yes.
PN578
And you've given some response evidence saying, well, based on the number of shifts done, someone could or couldn't make an assessment, or you were confident about the assessment. Was there some metrics that you used at that point of allocation where you said, okay, well a person's primary manager is the person who did X number of shifts as their supervisor or manager?‑‑‑No.
PN579
So you didn't have there was no science to it?‑‑‑Well, it was the rosters that the shift managers worked and the alignment to the rosters that the employees worked.
PN580
But as you say in your statement, the shift manager's rosters change all the time. How did you decide which roster to take into account? Was it the roster working at the time in December of 2014?‑‑‑Well, during that period of time we had a roster where the shift managers worked on a very similar roster to the employees for the permanent employees.
PN581
And how long was that period?‑‑‑For I can't recall exactly but for a long period of time.
PN582
That seems to be different to what you say in your statement about the way your shifts were allocated and managers were allocated. So are you saying now that there was indeed a long period of time where employees worked directly under one supervisor?‑‑‑Where does that say that in my statement?
PN583
Forget what it says in your statement. Is your evidence to that - - -
PN584
MR DARAMS: Well, I object.
*** TIMMI CHENG XXN MR SLEVIN
PN585
MR SLEVIN: I'm not going to make a point that he's saying something different to his statement.
PN586
MR DARAMS: That's fine. Okay.
PN587
MR SLEVIN: I'm just trying to get the evidence.
PN588
MR DARAMS: All right.
PN589
MR SLEVIN: So I'm not trying to trick you into saying something different to your statement, Mr Cheng. I just want to know - - -?‑‑‑Yes.
PN590
Whether the allocation of primary shift managers, for the purpose of the selection criteria, was done because you looked at a roster and you thought the roster indicated that that shift manager was the primary shift manager for that employee at a sorry, at a point in time you said that?‑‑‑Yes.
PN591
And that you felt that you could make them the primary shift manager because the rosters had been fixed for a period of time?‑‑‑Yes.
PN592
And what was that period of time? You said, a considerable period of time. Can you give us any more specificity than that?‑‑‑I can't remember precisely. Maybe one to two years.
PN593
All right. I can't recall.
PN594
And if we go to the next, "All remaining yard shift managers are to give a score, as well". So if what you've just said to me is right, there'd be yard and shift managers giving scores to people on other rosters, and on rosters that they hadn't worked on for 12 months to two years. Do you know how that works?‑‑‑I don't understand your question.
PN595
Well, say I'm working on a roster - - -?‑‑‑M'mm.
*** TIMMI CHENG XXN MR SLEVIN
PN596
And because for the way the roster's been working for the last twelve months to two years, I've got the same shift manager, then how does the rotation work? How does the rotation work that all of the other ten shift managers would know what my work was?‑‑‑So there wasn't a hundred per cent alignment between the shift manager's roster and the employee's roster. There was an alignment as such that an individual shift manager might be working with the employee for the majority of the time but then when they weren't working together they were spread across the other shift managers, being the supervisors.
PN597
But not all of the other shift managers, surely, all ten of them?‑‑‑Yes.
PN598
It's the case, isn't it, that some of these shift managers would be scoring people that they wouldn't know from a bar of soap?‑‑‑I don't agree with that.
PN599
You think all of the shift managers knew all of the employees?‑‑‑All of the shift managers will have had contact with the employees as a supervisor over a period of time.
PN600
To the extent that they could make a judgment as to whether that employee met expectations or exceeded expectations or was below expectations?‑‑‑Through their experience with those employees.
PN601
Over a twelve month period?‑‑‑Yes.
PN602
Just sticking with that document, if you go to page 12 of the document which is page 238, on the bottom, right-hand corner. See, when you well, back to the explanation question, when you gave this presentation in November 2014, you were ensuring that the supervisors would be in a position to be able to give reasons or explanations for the scores that they gave, weren't you? That was the purpose of this part of the presentation, wasn't it?‑‑‑Yes.
PN603
And you say it wasn't compulsory in the slide?‑‑‑M'mm.
PN604
But it was an expectation on your part that that'd be able to site specific examples, for example, of the employee demonstrating or not demonstrating that behaviour or conduct, and be able to state why the behaviour or conduct does or does not meet an expectation, and what could the employee have done to improve the score? And so you were putting into the supervisors' minds that when they make these scores they needed to be able to explain the scores. That was your purpose at that point of the presentation, wasn't it?‑‑‑Yes, we suggested that and encouraged that.
*** TIMMI CHENG XXN MR SLEVIN
PN605
Then if we go over to the next page, you explain why it is that they'd need to be able to explain their scores, and that's at that that would help deliver selection outcomes to the employees. And the last point, "You may be required to explain and justify the score you've given individual employees as part of a grievance process or as a witness in court". Now it's the case, isn't it, that these supervisors have never explained their scores to anyone other than other company people. They weren't, for example, in the grievance meetings with the employees who wanted to complain about the scores they'd given them?‑‑‑No, they weren't.
PN606
No. They haven't come here to give evidence to explain the scores that they've given these employees, have they? That's the case, isn't it?‑‑‑They're not here.
PN607
The only time they've explained is when they've sat down with you or other people during that grievance process. That's the case, isn't it?‑‑‑Yes, through our HR people.
PN608
And we identified some of them having gone through that process in the documents that were provided to the union and have been annexed to the statements. That's the only time that those people have actually explained themselves, isn't it?‑‑‑When there was an issue that needed to be explained, yes.
PN609
Now the next page talks about the review and it says, "Your shift manager scores and explanations will be reviewed by HR". I've looked at your description of what's occurred here. That didn't happen, did it? There was never the scores and explanations reviewed by HR, other then in the grievance procedure, was there?‑‑‑As part of our investigation, yes, they were reviewed.
PN610
Yes but not until afterwards, not until after the scores had been used to make the decision?‑‑‑No, we did look at the scores in aggregate.
PN611
So you reviewed them. What about the explanations? Did you have something other than just the raw score sheets?‑‑‑They were just the raw score sheets.
PN612
Yes, so you didn't consider the explanations for the scores prior to the decision-making process in relation to the offering of a training or the selection in the new terminal, did you?‑‑‑There were no explanations through the process.
PN613
And there were no one on one meetings held to discuss the scores either, were there?‑‑‑No. We didn't see a need to.
PN614
All right. And you didn't ask them to discuss and explain certain scores to ensure consistency and check accuracy, did you?‑‑‑As part of the investigation process, we did.
*** TIMMI CHENG XXN MR SLEVIN
PN615
I'm talking about before the decision was announced to each of the employees as to whether they'd be trained or otherwise. You didn't do that before then, did you?‑‑‑We didn't see a need to.
PN616
Now if you go to the last page in TC14 which is the table that was part of the workshop, 246, the bottom, right-hand corner?‑‑‑Yes.
PN617
Do you see there that there's a table that and so you gave them an example in the page earlier and then you said, "based on what you've read in the scenario, score John for each for each of the values and provide reasons for your score". And so that was the exercise during your workshop?‑‑‑Yes.
PN618
Now this sort of form was not a pro forma, was it, that supervisors were given at the time of that later exercise you described when they came in and did the scoring, was it?‑‑‑No, this was an example.
PN619
Yes. Now in that second meeting of all the supervisors where they were doing the actual scoring that you'd described earlier for me which is the point at which you said, "Tell me if you don't want to score someone", you were there when they were doing the scoring, were you?‑‑‑Not present the whole time, no.
PN620
But were you overseeing it? You were obviously there at some stage to give some instructions?‑‑‑I was at the terminal. The instructions were to score based on the forms.
PN621
Were you checking to see if they were making notes as to the reasons for the scores that they were giving?‑‑‑I didn't check, no.
PN622
The next page, page 15 of the slide, so we're back at 241, here you've given an explanation about completing the shift manager form. There's a reference in the second dot point on the left. "Explain the reason for your rating in your file and be prepared to support this with examples". What's the file being referred to there?‑‑‑The file is the template for the scoring.
PN623
So - - -?‑‑‑As per the picture.
*** TIMMI CHENG XXN MR SLEVIN
PN624
There doesn't seem to be any capacity or any accommodation in the picture for an explanation to be given or to be recorded. What's does that dot point mean, about explaining the reason "for your rating in your file and be prepared to support this with examples" and - - -?‑‑‑Yes, if they were able to provide comments, then to provide comments.
PN625
Where? We've looked at one of these earlier. There's nowhere for comments to be recorded, is there?‑‑‑they could have written them on the form.
PN626
They could have written, what, little notes on the side or something?‑‑‑Yes.
PN627
But they didn't, did they? No-one did that?‑‑‑No audible reply.
PN628
If you go over two pages, the last dot point, "Key points to take away. Record the reasons for rating an employee and document why you provided them this score". The recording that just didn't happen, did it?‑‑‑No, it didn't.
PN629
Go back to your statement now, Mr Chen. Move to the productivity, crane productivity scores. Now you say that the purpose of this was to select the best performing crane drivers and team leaders based on merit. And there was on of the selection criteria in evidence before Deputy President Sams in the arbitration. I just want to address that last part first. In Deputy President Sam's arbitration you're talking about the consultation arbitration and the selection criteria that was dealt with there. It's the case, isn't it, that the argument there was that the union didn't want the selection criteria, at all. It wanted the selection criteria in the agreement to be used rather than the one you developed, that's the case, isn't it?‑‑‑Yes.
PN630
And that the detail of the selection criteria was not dealt with by Deputy President Sams. He simply dealt with it at that level of whether the company should have a selection criteria or whether they should use the enterprise agreement selection criteria. That's the case, isn't it?‑‑‑I can't recall.
PN631
You don't understand, do you, that Deputy President Sams went to the minutiae of the selection criteria and said that it was all fair, do you? Indeed he couldn't have because of the date of the arbitration. That's the case, isn't it? You were still consulting about the detail of it, weren't you?‑‑‑Yes.
PN632
And so if I go back to I gave you three propositions there, Mr Cheng, I'm sorry. If you go back to the first of my propositions, it's the case, isn't it, that Deputy President Sams in the arbitration didn't deal with the selection criteria that's been complained about by the employees in these proceedings, did he?‑‑‑I can't remember exactly what was discussed.
PN633
Now you make some statements about the crane simulator?‑‑‑Yes.
*** TIMMI CHENG XXN MR SLEVIN
PN634
And you described it as a training tool?‑‑‑Yes.
PN635
Now in terms of the crane simulator, it's put to you that that is not a good tool for measuring the merit of the performance of crane drivers, simply because you don't lift any boxes in the simulator, do you? Performance in the yard is not measured by the simulator, is it?‑‑‑No because it's the crane operation.
PN636
So all it does is it simulates in a fairly rudimentary way, the way the controls on the crane will affect the movements of the crane in a simulated environment and that's all it does, isn't it?‑‑‑Yes. But I don't think it's rudimentary. It's - - -
PN637
Well, I just put to you that a crane simulator simply cannot measure performance. It can do no more than attempt in a sterile environment, the movement of a crane. It's a computer game. What do you say to that?‑‑‑I'd say that you can through the number of moves that we perform on that simulator, the number of incidents or damages that we might have through the simulation. I say that you can.
PN638
Because that's the purpose of the crane simulator, isn't it? It's used as a training tool because you don't want to put someone in a crane to start operating the crane if they don't have a sense of how the crane will move when you move the controls. So you don't want them running into things, to put it briefly?‑‑‑No, and so we take them through a stage of simulation.
PN639
And it's something that's done especially for people who haven't driven a crane before?‑‑‑Well, we've done it for all of the people in the crane skill and we've also done it, for example, with our new cranes that are coming on line, we've done it in preparation for that, as well.
PN640
When you say, "We've done it for all the people in the crane skill, you've used it as part of the induction for the new environment, haven't you?‑‑‑Yes.
PN641
And so you hadn't done it to induct people into cranes because it just didn't exist for most of the employees when they started driving cranes at the terminal, did it?‑‑‑No. It was introduced later.
PN642
Yes. When was it introduced?‑‑‑2012/2013.
*** TIMMI CHENG XXN MR SLEVIN
PN643
And so I just want to put to you that for that purpose it gives an unfamiliar crane driver some familiarity for working in the yard. It does that, doesn't it, what he crane will do once they get out into the yard, what a crane will do once they get out into their yard, it does that?‑‑‑Sorry, you mean when they get into the crane?
PN644
That's right?‑‑‑Yes.
PN645
But it doesn't measure their performance in terms of productivity because you don't put them in let me put this another way the purpose is about ensuring that they're comfortable with moving the crane. The purpose is not to increase their box rate. You don't measure in a simulator, the number of boxes that they'll move over a shift?‑‑‑Yes, we do.
PN646
That's not the purpose of it in the training exercise, is it? I'm confusing what you've done here and what the purpose of the simulator was, Mr Cheng. The questions I'm asking you, is the purpose of the simulator when it was introduced?‑‑‑Yes.
PN647
It wasn't introduced as a productivity measuring tool, it was introduced as a training tool. That's correct, isn't it?‑‑‑Yes, it was introduced as a training tool for the longer term, yes.
PN648
Now in terms of the crane productivity results, Mr Lee's been a long-term crane driver, I think it's 25 years?‑‑‑That's right.
PN649
Twenty-five years, he's operated cranes in a terminal, you accept that's the case?‑‑‑(No audible reply)
PN650
You've not been a crane driver and I don't mean to criticise you but you haven't been a crane driver at the terminal, have you?‑‑‑No, I haven't.
PN651
Mr Lee gives some evidence about the way make up gangs are allocated and twin lifts and the like, and you respond by saying it's unfounded and anecdotal, and you simply assert that each team would have had a reasonably even allocation to twin lift points of work over the 12 month period of performance measurements?‑‑‑Where is this, sorry?
PN652
This is paragraph 114 of your statement?‑‑‑I just put to you, Mr Cheng, that your evidence there at paragraph 114, itself, is anecdotal. You're saying, well, they would have had a reasonably even allocation of twin lifts. You don't say why. Your evidence is anecdotal, isn't it?‑‑‑Well, I say that over the 12 month period that there would be a reasonably even allocation.
*** TIMMI CHENG XXN MR SLEVIN
PN653
Yes but that's just your impression of how it would have occurred, isn't it?‑‑‑Yes, over that period there's lots of vessels and lots of points of work.
PN654
And I just want to say to you, Mr Lee, he'd have a better idea, wouldn't he, because he works down in the yard, so his anecdotal observations are going to be of more value to the Commission than yours, aren't they?‑‑‑(No audible reply)
PN655
You can't point to any insight that you'd have over Mr Lee, can you?‑‑‑Only that I can't find any data or information that shows that make up gangs were put to particular jobs.
PN656
Yes, so in those circumstances you're going to have to rely on people who are on the job, aren't you, because you can't find any data on them. That's the case, isn't it?‑‑‑It won't be because that didn't happen.
PN657
What's that?‑‑‑Maybe because it didn't happen.
PN658
Well, maybe it did happen and you've got no data. See, you're making an assumption against Mr Lee. I'm suggesting to you that Mr Lee and the people who are working in the yard are the people who can give that evidence and that there's nothing that you can point to that says that the evidence he gives is incorrect, is there?‑‑‑I can't I can't get any data for that, no.
PN659
If we deal with the skills allocation, Mr Cheng, it's the case, isn't it, that every straddle driver had the pinmans skill. That's the case, isn't it?‑‑‑Not necessarily.
PN660
They utilised the skill, every shift, and because they were a work where required employee for half their shifts?‑‑‑No, not in all cases.
PN661
Isn't it the case well, the agreement says otherwise. If you go to TC1, it's page 99 of the agreement and it's at page 125 on the bottom, right-hand corner. You see, work relief is covered there and the work where required tasks involved the pinman task, don't they?‑‑‑(No audible reply)
PN662
See, no-one's allocated to pinman because the pinman task is the work where required task. That's the case, isn't, Mr Cheng? Don't you know that to be the case?‑‑‑So if you look at clause 2.5, there's also a straddle driving role for yard operations.
PN663
Yes?‑‑‑And in those situations they do not do that pinman task.
*** TIMMI CHENG XXN MR SLEVIN
PN664
Well, I'm talking about the straddle drivers here though, so what's your point about 2.5?‑‑‑Well, they are also straddle drivers.
PN665
Yes?‑‑‑Working in the yard. At 2.3 it's straddle drivers working with the shift cranes. So they might be working are you suggesting that straddle drivers don't do pinman duties when they're doing the work where required component of their shift?‑‑‑When they're working in yard operations, no, they don't.
PN666
So if we go to page 100 and we see the shifts there and it says, "Driver 1, 6.00 to 6.30 drive", and then, "6.30 7.00, work where required". Are you saying that that straddle driver will get down from the straddle, or the practice was that he'd get down from the straddle, he or she, get down from the straddle and go and do some work on the other side of the terminal?‑‑‑No, what I'm saying is that 2.3 describes if a straddle driver's working in shifts, stevedoring operations as per those rotations and those timings, when they weren't driving the straddle they were performing the work where required tasks which involved pinning, but for straddle drivers working in yard operations that work where required there's no requirement for pinning in yard operations for straddle drivers.
PN667
So there's no requirement for pinning. The pinning's getting done though, isn't it? The pinning was getting done, wasn't it?‑‑‑Yes.
PN668
Who was doing it?‑‑‑The down crane driver and the straddle drivers that were working with that crane team.
PN669
So they were doing it, so they were utilizing that skill?‑‑‑M'mm.
PN670
But the complaint of some of them is they didn't get that skill allocated to them in the process for the selection criteria?‑‑‑For straddle drivers?
PN671
So why do you say they didn't get he pinman skills allocated to them?‑‑‑Because according to our process we allocated points to a particular skill or task when people are allocated to a particular role. And so no-one was allocated to the pinman task and so we didn't have any information in which to provide points.
PN672
If we go to so, this is a lack of information, is the reason you did it. You could have asked, though, people what they did rather than go looking for shift allocations. You could have done that, couldn't you?‑‑‑Asked if they did that task or not?
*** TIMMI CHENG XXN MR SLEVIN
PN673
The shift supervisors would know, wouldn't they?‑‑‑Well, shift by shift, it might change. Some days, the straddle drivers might be working in the crane team and others, they may be working in the yard.
PN674
Now we're just talking about the allocation. See, you've used this exercise of allocation to differentiate between the accreditation of these skills, in your skills from your skills table, but that's not what your selection process and criteria for employees said. If you go to TC9, and page 6 of TC9 page 177, please it says, "Employees will receive points on key skills that have been utilised in the last twelve months". It doesn't say, "on key skills that have been allocated to them for a shift in the last twelve months", it says, "been utilised in the last twelve months". See, you've applied a different test than the test in your actual criteria for the allocation of skills then if that's the way you've done it, haven't you, Mr Chen?‑‑‑Well, in terms of being utilised, we got the reports from our HR system and where they were allocated a task in the last twelve months, that's what we used and assigned points to for them using that skill.
PN675
So you just relied on what documents were in your HR system, you didn't go out and ask anyone, whether they be the employees themselves or the shift managers, is that the case?‑‑‑Well, the information in our HR system is what we go by for allocations by for payroll.
PN676
Is the answer to my question, yes, you use your HR documents rather than going and asking either the employees or their supervisors whether they utilised those skills in the last twelve months?‑‑‑Yes, we use what's in our system.
PN677
And so that's the case for the way you allocated skills for Mr McCarthy, as well then, is it? It's dealt with in the material about the R&D clerk but a control clerk, you know, don't you, that Mr McCarthy was undertaking the control clerk role in that last twelve months, don't you? He was utilising that skills. You know that, don't you?‑‑‑No, Mr McCarthy was trained in it, in the control clerk role.
PN678
Because we spoke about this last week, didn't we?‑‑‑M'mm.
PN679
And remember we went through, and Mr McCarthy in his statement says again in these proceedings, he was trained in late 2013, do you recall that?‑‑‑Yes. Do you have the documents?
*** TIMMI CHENG XXN MR SLEVIN
PN680
And the reason he was trained in it was because the control clerk, who worked from 6.00 to 2.00, couldn't get all of the work done and so the needed the VBS clerks to be doing some control clerk work. You'll recall that was the case and I think you've agreed with me about that before?‑‑‑I can't remember. Do you have the document?
PN681
I might read you the transcript from last week if you like. I want to know whether that's your state of knowledge. Just forget about whether you've agreed before. Your state of knowledge is, isn't it, that after two o'clock in the afternoon, the VBS clerks were doing control clerk work?‑‑‑I he may have been doing some of the tasks.
PN682
Well, you've seen his statement. Do you not believe him when he says that he was doing the control clerk work, that he was trained to do the control clerk work for those two hours up to four o'clock, after the control clerk went home. That's what he was doing. You wouldn't training him, Mr Cheng, to do control clerk work if you weren't going to utilise him in a control clerk role for that time, would you?‑‑‑He wasn't allocated to the control clerk role.
PN683
That's the point that I - - -?‑‑‑I see.
PN684
Getting back to you, you did the same thing, didn't you, as you did for the pinman? He wasn't allocated for the entire shift. He was allocated he was called something else for the entire shift but if he utilised the skill, you just didn't count it because it didn't come up in your HR documents as an allocation?‑‑‑Mm.
PN685
That's how you applied the points related to the skills metrics, isn't it?‑‑‑Yes, if they were allocated, they received points.
PN686
Now if we go to the words in the agreement though, he did utilise the skills of a control clerk during that twelve months period, Mr McCarthy did, didn't he?‑‑‑He may have.
PN687
Now if we go to your second statement where you deal with Mr McCarthy, Mr Cheng. You know Mr McCarthy's complaint is he was assessed by supervisors that wouldn't know of his work. When it comes to the clerical works there are essentially two offices, isn't there? There's the office in the yard where there's clerical workers who were doing R&D work and that sort of work, and then there was the - - -?‑‑‑(Indistinct) office supervisors but shipping, and in the R&D we've the tower and VBS clerks were separate (indistinct) managers.
PN688
So and then there's the tower it's where the VBS work and the control clerk and tower clerks worked?‑‑‑Yes.
*** TIMMI CHENG XXN MR SLEVIN
PN689
They're two distinct places, aren't they? They're separate places?‑‑‑Yes.
PN690
And so when Mr McCarthy makes the complaint that, "Look, people like Mr La Roche, Mr Katchia, Mr Close and Mr Morgan, they were in the yard. They had nothing to do with me where I was doing my work". He's right in that, isn't he?‑‑‑No, they would have went between.
PN691
Well, they would have?‑‑‑Yes.
PN692
Do you know?‑‑‑Sorry?
PN693
Do you know whether they did?‑‑‑I - - -
PN694
Do you know whether half of their shift, every shift, they spend in the tower?‑‑‑No, not half of their shift.
PN695
You don't know?‑‑‑No.
PN696
They might have gone there, what, once a fortnight or something, is that what you're saying? You're saying, "would have"?‑‑‑I'm not saying, once a fortnight. It is part of their shift so they would, you know, go to each area and talk to each other and understand what was happening in each part of the area in each part of the terminal.
PN697
So you're putting that every shift, Mr La Roche, Mr Katchia, Mr Close and Mr Morgan would have something to do with Mr McCarthy's work?‑‑‑(No audible reply)
PN698
You don't know that, do you, Mr Cheng?‑‑‑Not for every shift, no. No, I don't know that.
PN699
You can't say how often they have to do with Mr McCarthy, could you, over that twelve month period, you have no idea?‑‑‑Well, they were they were the supervisors of, you know, that area.
PN700
The yard area?‑‑‑Sorry?
*** TIMMI CHENG XXN MR SLEVIN
PN701
They were the supervisors of the yard area. You can say that, can't you?‑‑‑Yes, some of them.
PN702
But you can't say anything about whether they spent time n the tower and had anything to do with Mr McCarthy and his work, can you?‑‑‑How much time, I can't say, precisely.
PN703
So in this table here where you say, "Total number of shifts worked with employee", and you say there was 39 total shifts with Mr La Roche working with Mr McCarthy?‑‑‑Yes.
PN704
The only thing that that is indicative of, is the fact that Mr La Roche was at the terminal at the same time as Mr McCarthy?‑‑‑They were working on the same shift, to you know, trying to yes, trying to work through the goals of the terminal, yes.
PN705
So whether they were working with each other or whether one stayed in the yard for the entire shift and the other stayed in the tower, you don't - - -?‑‑‑We really don't know. I don't I can't say exactly.
PN706
Now in the table on page 3 of your second statement, do you see there's you actually take out the yard supervisor scores and you make an adjustment. And I think your point here is to say, well, if I do that, it doesn't make any difference. Then if you also allocated to Mr McCarthy, the control clerk score on his skills, it would make a difference, wouldn't it?‑‑‑If we added them on top of on top of adjusting the scores?
PN707
Yes?‑‑‑So doing both?
PN708
Yes?‑‑‑Yes, it would.
PN709
And indeed he'd have picked up a senior clerk role, wouldn't he, if you'd taken out the yard supervisor score and you'd given him the control clerk score. That's right, isn't it?‑‑‑If we did both adjustments, yes.
PN710
And it's the case, isn't it, that if you made adjustments to a number of the employees who are the subject of these proceedings, if you made the adjustments that the employees have asked that you make, that they would have been picked up? You're aware that that's the case, aren't you?‑‑‑In some cases that may occur. In some cases, it might.
*** TIMMI CHENG XXN MR SLEVIN
PN711
And just lastly, you say that at 131 of your first statement, the labour model sets out the number of employees required to work in the terminal and you've entered "a relevant employee or any other employee returning to the workforce. This would result in another employee being surplus to the requirements of the company". It's the case, isn't it, Mr Cheng, that there's a labour review that's overdue at the terminal? That's the case, isn't it?‑‑‑It's the case that, yes, we're scheduling one, yes.
PN712
Yes, and the purpose of the labour review is to look at that very question as to what the labour needs of the company are at the moment?‑‑‑That'll be part of it, yes.
PN713
And all indications are that the staffing levels at the terminal at the moment do require some adjustment because you're using a lot of supplementary employees, to start with. That's the case, isn't it?‑‑‑At this exact point in time, yes.
PN714
And you've employed a number of people in excess of the labour model that you had at the time of cutover, haven't you, in other roles?‑‑‑Supplementaries, yes.
PN715
Do you have any idea of the number of full time equivalents that have been picked up since the cutover?‑‑‑Of Supplementaries?
PN716
Both Supplementaries, and I think there are some PIR's, as well, aren't there?‑‑‑No, the PIR's - - -
PN717
Only supplementaries?‑‑‑They should be as per cutover.
PN718
No, I'll withdraw that, I thought there were PR's but only Supplementaries do you know how many full time equivalents there are as a result of that exercise?‑‑‑No, I don't.
PN719
And there's information at the moment, I gather, that's being put together as required by the agreement at clause 7, which his at TC1 that's the fifth page of the agreement, page 31. And so there's been some information provided about the PGE and permanent hours being worked. When you do it at Port Botany, the permanent hours are the permanent ops people, as well as the PIR people, aren't they? Or are they, I should ask? We're looking at the first dot point in the information to be provided?‑‑‑Yes, so that's the hours for each of the different labour categories.
*** TIMMI CHENG XXN MR SLEVIN
PN720
All right. And those transfers and the shifts worked, the debits and the credits, the shift upgrades, downgrades, the employee numbers by category, the shift to non-shift allocation and the use of labour my point is, this question of whether labour would be surplus or not, is a question that's currently in flux, in that it's subject to a labour review under the agreement - - -?‑‑‑Yes.
PN721
That's the case, isn't it?‑‑‑Yes.
PN722
Thank you. Nothing further, Commissioner. Thank you, Mr Cheng.
THE COMMISSIONER: Re-examination, Mr Darams?
RE-EXAMINATION BY MR DARAMS [3.43 PM]
PN724
MR DARAMS: Mr Cheng, could I ask you to go to paragraph 38 of your first statement?‑‑‑Yes.
PN725
Now do you recall you were asked a question by my learned friend and he put to you that that paragraph was incorrect?‑‑‑M'mm.
PN726
Do you remember that question?‑‑‑Yes.
PN727
Now just to assist you, if you could go to page 224 of your statement - - -?‑‑‑Yes.
PN728
Now do you recall you were asked a number of questions about that document?‑‑‑Yes.
PN729
And then after you were asked questions about that, the question you were directed to paragraph 38 and it was put to you paragraph 38 was incorrect. Now your answer was correct. Now I just want to clarify, when you said - - -?‑‑‑I think I said, "It is correct".
PN730
Yes, so are you saying that paragraph 38 is correct - - -?‑‑‑Yes.
PN731
And therefore you weren't agreeing with the proposition that it was incorrect?‑‑‑That's right. Yes, I said that paragraph 38 was correct, that's right.
*** TIMMI CHENG RXN MR DARAMS
PN732
Just lastly, you were just asked some questions about there being a number of supplementary employees employed at the - Port Botany, you may recall that?‑‑‑Yes.
PN733
Can you tell the Commission why there are, to your understanding, why there are a number of supplementary employees being employed?‑‑‑So there are two reasons.
PN734
Yes?‑‑‑The first, and this is why I guess the Supplementaries were introduced, was that the PIR's had reached their 18, 20 hours for the period and chose not to work overtime after that and as a result, we needed the labour obviously to perform the operations and so it was at that point that the Supplementaries were engaged. The second reason is because performance at the terminal isn't quite where we expected it to be at this point in time and yes, for the moment we do require additional labour until we reach that level of performance.
PN735
And when you say "that level of performance", what do you mean by that?‑‑‑Sorry, yes. So mostly in terms of the crane performance and the number of lifts being performed on each crane shift.
PN736
Yes. And when you say you're not currently at the level of performance, you're obviously making that by reference to a benchmark or a you know, what is that benchmark and where's it come from?‑‑‑Okay, so the benchmark is 200 lifts per shift. That benchmark comes from, I guess, two sources, the first one being with performance at the terminal prior to automation we were averaging around 240 lifts per shit on the crane, before we changed over to automation and so, yes, it's a different type of operation with the automated straddles and things. The second benchmark is our Fisherman Island facility in Brisbane which runs the same automation as we do, and they currently have performance levels of between 210 and 215 lifts per shift. We would expect to be better than that over time as we optimise, because of the scale of the operation compared to Brisbane, and so that's why we went with the benchmark and the conservative estimate in the labour modelling, for 200 lifts per crane shift.
PN737
I have nothing further.
PN738
THE COMMISSIONER: Can you just clarify for me because I'm a little confused?‑‑‑Yes, sir.
PN739
I'm still not straight about paragraph 38 of your statement and I think it's TC12. This is to do with PIR's and as I understood it, there wasn't a separate PIR crane driver position, or have I got that wrong?‑‑‑No, that's right. That's PIR stevedore.
*** TIMMI CHENG RXN MR DARAMS
PN740
Yes?‑‑‑And that was the role that was performed through the selection process. As described there were various breakdown of those PIR roles that needed to be trained in a skill initially from so that we were able to perform, you know, the business operation from day 1, and so we went through a process to initially train various PIR's in that first skill with the intention over time to train them in more skills and multi skill the PIR group of the workforce.
PN741
Well, why have we got two columns here?‑‑‑And so why we have two columns is, once we selected the PIR's as a group of employees then we needed to decide within that group which ones we would be providing the first training skill for, for the crane driver skill for the the clerical skills, all the sort of different skills, and so we used that second column from that group of people to select the number of PIR's that we required to train in the crane drive skill, in the first instance. So we had a requirement - - -
PN742
So your entry was in the general requirement of PIR and then after you'd got into that area - - -?‑‑‑Then we did it, sir.
PN743
Then you've moved towards selecting people for training in the crane operations?‑‑‑Yes. As their first skill to begin the operation, with a view that we would continue to train in different skills as we moved forward. And what that other column is describing is the process that we went through to out of the group of PIR's to determine which ones of those would get the crane training skill in the first instance.
PN744
Now the other thing is with the skills metrics - - -?‑‑‑Yes.
PN745
The number of points, for instance, in paragraph 121 and you say this elsewhere, "No employee was awarded points for the pinman skill", and that seems to be largely derived from the fact that you weren't able to identify from any of the data that you had, when pinman was actually being utilised, when they were actually doing that?‑‑‑Yes, because it wasn't a task that we specifically allocated as as pin.
PN746
Okay, but then if we go up to the skills table that's behind TC9, we've got pin men - - -?‑‑‑Yes.
PN747
And we've got, from what I can gather, points that are notionally available if you're a pinman?‑‑‑Yes.
*** TIMMI CHENG RXN MR DARAMS
PN748
Four for the three metre crane and three for the team leader, lashing?‑‑‑M'mm.
PN749
How do I reconcile that?‑‑‑Yes. So this exercise this exercise was performed, you know, in preparation for the obviously collecting any data and defining points and so after we had sort of defined this process we realised that no-one was allocated to the pinman skill, so we didn't have any records to be able to say, well to assign those particular points.
PN750
So despite that being there, that was never actually the case? No-one ever picked up that for the four points towards the team leader, crane?‑‑‑Nobody received any points for pin - - -
PN751
Pin - - -?‑‑‑Because we couldn't, through our information in our systems - - -
PN752
Work out where and when it wasn't actually being utilised?‑‑‑Yes. Can I just say also though that for the team leader, lashing role, that was out of scope, so it doesn't impact it from that perspective.
PN753
All right?‑‑‑From the team leader, crane perspective, I do have in my statement that that's there in error and skills weren't applied for the team leader, crane role, as per the selection criteria. And in terms of the pinman, number of points for the PIR, it's two points in 75, which when you normalise it to the skills points in the PIR selection criteria then it counts for a fraction of a point.
PN754
But no-one was given it?‑‑‑Correct.
PN755
And I think it was Mr Lee I might have the wrong person but someone complained about not getting allocated to the truck martial, not getting points for the truck martial. No, it wasn't Mr Lee. Who was that? Hudson, was it?
PN756
MR SLEVIN: Hudson, I think, Commissioner.
PN757
THE COMMISSIONER: But the truck martial was something that you could identify and points would have been provided for. I think this issue might have been because it wasn't picked up as being something that occurred in the previous twelve months or something. I'll see if I can find where exactly that was?‑‑‑Yes, sir, paragraph 128.
*** TIMMI CHENG RXN MR DARAMS
PN758
128 of yours? Do you address this?‑‑‑Yes. So you're right. Through our investigation we found that Mr Hudson was not given any points for truck martial role as he had not performed it in the previous twelve months. That's who it was, Mr Hudson.
PN759
So he complained about not getting pinman, I think, as well, but you say no-one got any pinman, at all?‑‑‑That's right.
PN760
But he didn't get the truck martialing because you couldn't see him actually doing the truck martialing in the twelve months beforehand?‑‑‑Yes.
PN761
But truck martialing, unlike pinman, is something you can identify from your data, is it?‑‑‑Yes, well there's a task that you can identify that and you are allocated to the truck martial role.
PN762
All right. Now in the case of Mr McCarthy, this is in his supplementary statement, you've done that adjustment with taking out the particular supervisors that are mentioned there, the four of them?‑‑‑Yes.
PN763
Did you also do the exercise, leaving those four in but giving him the skill points for the control clerk, and what the outcome would be then?‑‑‑Yes, we did. Yes, I did and leaving the scores in and applying control clerk didn't reach the cut-off for the roles.
PN764
So it didn't get 28.8, was it?‑‑‑Applying each adjustment in isolation doesn't change the outcome but applying both adjustments together - - -
PN765
So you'd have to do a combination of both?‑‑‑Yes.
PN766
All right. All right, well thank you for clarifying those things for me?‑‑‑Thank you, sir.
PN767
Anything arising from my questions, Mr Slevin?
MR SLEVIN: I don't think so, Commissioner. I'm just getting some instructions.
FURTHER CROSS-EXAMINATION BY MR SLEVIN [3.58 PM]
PN769
MR SLEVIN: Mr Cheng, when people were giving their preferences, to be scored in the simulator you had to have the crane skill, didn't you? You couldn't just jump in the simulator and see how you went, you had to actually have the crane skill, didn't you?‑‑‑Yes. So those people that had the crane skill performed the simulator assessment.
*** TIMMI CHENG FXXN MR SLEVIN
PN770
Yes. And that was a prerequisite for the crane operator, PIR role. See, you seemed to suggest to the Commissioner that after you chose the PIR's you then chose people for training, but when you were making the selection for the crane driver PIR's they had to already have the skills to do the simulator. This is in TC12. That's the case, isn't it?‑‑‑Sorry, what was the question?
PN771
You couldn't choose your PIR people then decide, I'm going to train some of them in crane, because your selection process already required that they have a crane skill so they could be selected for the role, because they had to have the crane skill to go in the simulator. That's as I understand the way this worked. That's the case, isn't it?‑‑‑I'm trying to recall. I think some people started in crane training and there might have been some people that had started that crane training process that were also included.
PN772
Isn't is the case that this happened. You had nine crane PIR roles in your labour model for the new terminal, didn't you? It's in your statement behind TC10?‑‑‑We had nine people required to be trained, nine PIR's required to be trained in crane driving for day 1 of operations.
PN773
You had 29 permanent ops roster people and nine PIR's. You had crane drivers that was what was required in your labour model?‑‑‑Yes.
PN774
To get those nine PIR's, you needed people and you scored people based on the fact that they had the crane skill already and they had a twelve point - - -?‑‑‑They had done - - -
PN775
Twelve points was the simulator score. That's what you did, didn't you?‑‑‑But they had done the simulator assessment.
PN776
That's right?‑‑‑Yes.
PN777
And to do the simulator assessment they had to have the crane skill. What occurred here, Mr Cheng, was always it was always the case that you had nine PIR roles for crane drivers and that's what your labour model said and that's what your selection criteria document said. And that's because there were nine PIR roles and when I took that to you earlier this afternoon and I said you're wrong in your statement when you say there were nine PIR roles, you were wrong in your statement, weren't you? There were nine PIR crane roles, weren't there?‑‑‑No, there were nine there were nine PIR's to be trained in the crane skills for day 1 of operations and we intended to - - -
*** TIMMI CHENG FXXN MR SLEVIN
PN778
Because there were nine crane driver roles in the PIR?‑‑‑And we intended to continue training PIR's in the crane driver skill because it's a multi-skilled and irregular roster workforce, to provide us flexibility and over time we would increase the number of PIR's with the crane skill.
PN779
Why don't any documents say that, Mr Cheng? The contemporaneous documents don't go anywhere near saying what you've just said?‑‑‑So we needed to train nine PIR's from day 1 and so - - -
PN780
You didn't. You had more than 29 crane drivers on day zero of the old operations, didn't you?‑‑‑But they weren't PIR's.
PN781
You didn't need to train them. You could have just picked up those crane operators and put them into crane PIR roles. That's the case, isn't it?‑‑‑And that wouldn't have worked for us because we needed the PIR's and the flexibility of the PIR roster through our labour modelling to revive the number of crane drivers that we needed.
PN782
The crane drivers who were being retrenched could have done the other roles. They could do the pinman role, the other work where required roles, because they did them as crane drivers when they were relieved. That's the case, isn't it?‑‑‑So if they elected for a PIR role then they could have been selected for that.
PN783
And they could have been selected for and the that you're talking about, is the PIR crane role, isn't it?‑‑‑It's a PIR with the crane driver skill.
Thank you, Mr Cheng.
FURTHER RE-EXAMINATION BY MR DARAMS [4.03 PM]
PN785
MR DARAMS: There are some questions arising. Now just staying with this PIR with crane skills, just those from day 1, I think you've identified there were nine that you needed were those persons who were identified on day 1, did they subsequently receive training in PIR?‑‑‑Well, they were PIR's.
PN786
Sorry, yes?‑‑‑They must have subsequently received training in other skills.
PN787
Yes. Now how many PIR's are there now with crane skills, if you know?‑‑‑I don't know but here are many. I don't know, precisely.
*** TIMMI CHENG FRXN MR DARAMS
PN788
More than the nine from day 1?‑‑‑Yes. I believe, above 20.
PN789
Nothing further.
PN790
THE COMMISSIONER: All right. Thank you very much for giving your evidence, Mr Cheng?‑‑‑Thank you, sir.
You're released and discharged, you can leave?‑‑‑Thank you.
<THE WITNESS WITHDREW [4.04 PM]
PN792
THE COMMISSIONER: Does that complete the evidence?
PN793
MR DARAMS: It does.
PN794
THE COMMISSIONER: If you can provide the two submissions tomorrow morning at ten o'clock.
PN795
MR DARAMS: Yes.
PN796
THE COMMISSIONER: We're adjourned until then.
ADJOURNED UNTIL WEDNESDAY, 16 DECEMBER 2015 [4.05 PM]
*** TIMMI CHENG FRXN MR DARAMS
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #4 WITNESS STATEMENT OF MATTHEW FREESTONE DATED 06/11/2015................................................................................................................................... PN62
EXHIBIT #5 FURTHER WITNESS STATEMENT OF MATTHEW FREESTONE DATED 10/12/2015................................................................................................................. PN66
MATTHEW JOHN FREESTONE, SWORN...................................................... PN85
EXAMINATION-IN-CHIEF BY MR SLEVIN................................................... PN85
THE WITNESS WITHDREW............................................................................ PN112
NICHOLAS BUSUTTIL, SWORN..................................................................... PN118
EXAMINATION-IN-CHIEF BY MR SLEVIN................................................. PN118
EXHIBIT #6 WITNESS STATEMENT OF NICHOLAS BUSUTTIL DATED 06/11/2015 PN132
EXHIBIT #7 SUPPLEMENTARY WITNESS STATEMENT OF NICHOLS BUSUTTIL, DATED 08/12/2015................................................................................................ PN139
CROSS-EXAMINATION BY MR DARAMS................................................... PN141
THE WITNESS WITHDREW............................................................................ PN170
MILTON DYMOCK, SWORN........................................................................... PN173
EXAMINATION-IN-CHIEF BY MR SLEVIN................................................. PN173
EXHIBIT #8 WITNESS STATEMENT OF MILTON DYMOCK DATED 06/11/2015 PN183
EXHIBIT #9 SUPPLEMENTARY WITNESS STATEMENT OF MILTON DYMOCK DATED 09/12/2015............................................................................................................... PN189
CROSS-EXAMINATION BY MR DARAMS................................................... PN190
THE WITNESS WITHDREW............................................................................ PN217
TROY JAMES HUDSON, AFFIRMED............................................................. PN220
EXAMINATION-IN-CHIEF BY MR SLEVIN................................................. PN220
EXHIBIT #10 WITNESS STATEMENT OF TROY HUDSON DATED 09/11/2015 PN229
EXHIBIT #11 SUPPLEMENTARY WITNESS STATEMENT OF TROY HUDSON DATED 09/12/2015............................................................................................................... PN235
CROSS-EXAMINATION BY MR DARAMS................................................... PN237
RE-EXAMINATION BY MR SLEVIN............................................................. PN260
THE WITNESS WITHDREW............................................................................ PN287
STEVEN LEE, SWORN...................................................................................... PN290
EXAMINATION-IN-CHIEF BY MR SLEVIN................................................. PN290
EXHIBIT #12 WITNESS STATEMENT OF STEVEN LEE DATED 06/11/2015 PN303
EXHIBIT #13 FURTHER WITNESS STATEMENT OF STEVEN LEE DATED 09/12/2015................................................................................................................................. PN309
THE WITNESS WITHDREW............................................................................ PN316
DARREN MCCARTHY, SWORN..................................................................... PN317
EXAMINATION-IN-CHIEF BY MR SLEVIN................................................. PN317
EXHIBIT #14 WITNESS STATEMENT OF DARREN MCCARTHY DATED 08/12/2015 PN325
CROSS-EXAMINATION BY MR DARAMS................................................... PN328
THE WITNESS WITHDREW............................................................................ PN340
TIMMI CHENG, AFFIRMED............................................................................ PN352
EXAMINATION-IN-CHIEF BY MR DARAMS.............................................. PN352
EXHIBIT #15 WITNESS STATEMENT OF TIMMI CHENG DATED 30/11/2015 PN360
EXHIBIT #16 SUPPLEMENTARY WITNESS STATEMENT OF TIMMI CHENG DATED 14/12/2015............................................................................................................... PN366
CROSS-EXAMINATION BY MR SLEVIN...................................................... PN377
RE-EXAMINATION BY MR DARAMS........................................................... PN723
FURTHER CROSS-EXAMINATION BY MR SLEVIN................................. PN768
FURTHER RE-EXAMINATION BY MR DARAMS...................................... PN784
THE WITNESS WITHDREW............................................................................ PN791
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URL: http://www.austlii.edu.au/au/other/FWCTrans/2015/744.html