C2014/343, Transcript of Proceedings [2015] FWCTrans 79 (2 March 2015)

	Home \| Databases \| WorldLII \| Search \| Feedback Fair Work Commission Transcripts

and
Wilson Security
(C2014/343)
United Voice Security Union and Wilson Security Safeguard Agreement 2011

PN1.

THE COMMISSIONER: Good morning, everyone. I'll take the appearances in this matter, thank you.

PN2.

MR S GOME: Thank you, Commissioner. My name is Gome, initial S, and I will be appearing for the union and - - -

PN3.

MS T KEMP: Good morning, Commissioner. My name is Kemp, first initial T.

PN4.

THE COMMISSIONER: Thank you very much, Mr Gome and Ms Kemp.

PN5.

MR T ANGELOPOULOS: If the Commission pleases, Angelopoulos, initial T. I seek permission to appear and alternatively I seek to appear pursuant to clause 12.3.5 of the agreement, which allows parties to be represented by legal practitioners.

PN6.

THE COMMISSIONER: Thank you very much, Mr Angelopoulos. As far as I'm concerned, this is - it's a separate matter but I'm treating it as a continuing matter. Unless Mr Gome has anything further to say, I'm prepared to treat your granting of leave as an ongoing matter. Mr Gome, do you have anything further to say about that?

PN7.

MR GOME: No, Commissioner.

PN8.

THE COMMISSIONER: Fine. Thank you very much. Mr Gome?

PN9.

MR ANGELOPOULOS: Sorry, Commissioner - - -

PN10.

THE COMMISSIONER: Yes. Sorry.

PN11.

MR ANGELOPOULOS: Except if people actually are instructing - I understand Mr Gome has two witnesses present in the courtroom. I understand Mr Howarth is here to give instructions, so I can understand if he is present. But if Ms Keogh - she should be actually out of the courtroom until it's her time to give evidence, as my witnesses are out of the courtroom.

PN12.

THE COMMISSIONER: Sure. Thank you.

PN13.

MR GOME: Thank you, Commissioner. A couple of housekeeping matters to begin with. The first one is that Chris White won't be here giving evidence and we won't be relying on the witness statement that had been filed. So what that means is that the hearing today just centres on Mr Howarth and all of the submissions or all of the evidence that Mr McGrath may otherwise have given won't be necessary today.

PN14.

THE COMMISSIONER: Does mean that you're not pressing the matter at all in respect to Mr White?

PN15.

MR GOME: That's correct, Commissioner.

PN16.

THE COMMISSIONER: So any decision that's to be made in this matter will only be in respect to Mr Howarth?

PN17.

MR GOME: Yes.

PN18.

THE COMMISSIONER: Thank you very much.

PN19.

MR GOME: A second thing, just by way of clarification - I think I have advised your associate and I know that I've advised Mr Angelopoulos - the material that initially was filed as attachments A, B and C to our initial submissions are identical to what now appear as attachments EK1, EK2, EK3 to Ms Keogh's statement. For convenience, I think, when I am referring to those documents, I'll refer to them as attachments to Ms Keogh's statement.

PN20.

THE COMMISSIONER: Thank you. I'll just say thank you to you both, too, for the advice that you had provided late last week just about the way the matter was to proceed and what witnesses would be required and what cross-examination was expected. So thank you both for that.

PN21.

MR ANGELOPOULOS: Commissioner, if I just can briefly, on that issue?

PN22.

THE COMMISSIONER: Yes.

PN23.

MR ANGELOPOULOS: I had indicated that I didn't intend cross-examining the witnesses for the applicant. I still don't intend cross-examining Mr Howarth. Ms Keogh, on review, there's a very short one or two point thing I do want to cross-examine her on and that's arising as a combination of that and the submissions in reply, but it's not going to sort of extend the day in the same way perhaps as the original jurisdiction hearing did.

PN24.

THE COMMISSIONER: Thank you.

PN25.

MR GOME: Thank you, Commissioner. Just very briefly, if I can recap on the ongoing matter. It's a dispute under section 739 of the Act about the application of an agreement. We've had the jurisdictional objections and a decision made on that and we're now proceeding to the substantive determination, as the parties haven't been able to reach agreement on that matter. Our submission is that it's a pretty straightforward matter. The phrase in question that needs - the meaning of which needs to be determined is "conducted during paid time". In our submission, Commissioner, the meaning of that phrase is that time spent in training under that clause, under clause 16 of the agreement, is to be included in the total number of rostered hours that an employee has for the pay period in question.

PN26.

We're not saying that the parties have agreed that work and training are the same. We're saying that the parties have agreed that for training that falls under this particular clause in the agreement, that the time will be paid and that those hours are counted in the overall hours for the period in question. Commissioner, do you have a copy of the agreement in front of you?

PN27.

THE COMMISSIONER: I do, yes.

PN28.

MR GOME: Do you, Mr Angelopoulos?

PN29.

MR ANGELOPOULOS: Yes, I do.

PN30.

MR GOME: I'd just like to draw your attention to clause 7, the rostering clause, and in particular, clause 7.1.1, "The ordinary hours of work each week for a full‑time employee are 38, which may be averaged over a period of between one and 12 weeks." I won't make any detailed submissions on this point at this time, Commissioner, but it's worth bearing in mind because it's not as straightforward as saying if a security guard works more than eight hours in a particular shift, that overtime will be attached to any additional hours. Under the agreement, overtime can be averaged over, as it says here, any period between one and 12 weeks. That's relevant both for calculating any outstanding overtime entitlement, should that be necessary, but it's also important for interpreting the effect of the phrase "conducted during paid time" and whether or not overtime can apply, can attach to that.

PN31.

I'm assuming that we all have copies of the Golden Cockerel decision before us?

PN32.

MR ANGELOPOULOS: Yes.

PN33.

THE COMMISSIONER: I don't actually have a copy with me at the moment.

PN34.

MR GOME: I have another copy, Commissioner.

PN35.

THE COMMISSIONER: Thank you.

PN36.

MR GOME: Again, I'm not going to refer to that in detail, other than to say I thank my friend for drawing our attention to it. I think that we may, at a later stage, both be making reference to paragraph 45 in particular. If I can summarise, at this stage, what we say the effect of paragraph 45 of the Golden Cockerel decision is, to be that the role of the Commission is to interpret the agreement that the parties have reached, and in doing so, it needs to pay particular attention to the words they have decided - ultimately concluded upon - to give effect to that agreement. The initial question for the Commission to be satisfied of is whether or not the words have a plain meaning or, if you like, whether an ambiguity exists. Our submission is that “conducted during paid time” is not ambiguous and it has the meaning that I mentioned before; that hours that are spent in clause 16, Training, are included in the overall number of hours that an employee has been required to work during a given period of time. So we say there is no ambiguity.

PN37.

In determining whether or not there is an ambiguity, the Commission may have regard to the objective framework of fact surrounding the conclusion of the agreement. The objective framework of fact, we submit, does not include unnecessary detail about what may have been proposed at various stages along the way. It doesn’t include evidence about matters that aren’t in dispute, that are not controversial. For example, it’s not in dispute that at some point in the negotiations, the company had a version of words that was different to the ultimately agreed upon ones and regard should only be had to the objective framework of fact to the extent that it sheds light on the question to be determined. In the event that the Commission were to find that an ambiguity exists, then that objective framework of fact can be used to settle that question.

PN38.

The other thing that we will get to, probably later in submissions, is there will need to be a little bit of a discussion, and maybe evidence led, about how overtime was actually assessed and calculated at the time that the training was conducted. So I think that’s our opening, Commissioner, and over to Mr Angelopoulos.

PN39.

THE COMMISSIONER: Thank you.

PN40.

MR ANGELOPOULOS: Your Honour, I’ll be very brief. In fact, it seems that for the most part we are in agreement as to what the decision the Commission is required to consider today. The first part, we say, is that this is a dispute that solely relates now to Mr Howarth. It doesn’t relate to other members of the union whatsoever, because there is no evidence before the Commission about other members of the union. So any finding that the Commission makes because it has already made findings that the various stages of the dispute settlement clause have been met with respect to Mr Howarth, are solely about him.

PN41.

The next issue is, the question is, what does “during paid time” mean? The question is, is “during paid time” to be equated with - that is, are the hours that are undertaken during training equated with or added to the rostered hours of work? We say, Commissioner, that clearly, if you look at the construction and the words of the agreement and the history of the matter where, if the Commission determines that there is an ambiguity, that you can look at the objective intention. We say that the only person that has presented any evidence to this Commission - sorry - who will present, not has, but will present any evidence to this Commission today is Mr Maclagan of what was discussed at the time of the negotiations. In fact, the union has not sought to sort of present any contravening evidence to say, well, this is a subjective intention, not an objective intention. We say that as Mr Maclagan was the lead negotiator for the company, Mr Redford was the lead negotiator for the union. But Mr Redford has not given any evidence that - of course, the Commissioner will go into more detail - can draw adverse inferences from his failure to give any evidence or participate.

PN42.

As my learned friend had said, it is about the rostered hours and it is about section 739. What we say, Commissioner, is, yes, Golden Cockerel is important because it sets a framework for how you interpret an agreement. It is, in some ways, a slight variation of the approach that the courts and the Commission had taken previously. I guess the fundamental difference this time round is that the Commissioner said the Acts Interpretation Act doesn't apply. That is really where the fundamental difference lies because previously you would use the principles under the Acts Interpretation about that - the principles under the Acts Interpretation as a part of the assessment and it’s saying because agreements which are approved by the Commission aren’t statutory instruments, then it doesn’t apply.

PN43.

But if you look at the other aspects, Commissioner, of Golden Cockerel and what you're looking to do is trying to identify the plain meaning of the words, and that's fundamentally what you're doing, then the other - the principles from cases such as Excellior(?) which I have extracted in quite significant detail in my written submissions, although were not done in the context of Golden Cockerel but under the earlier principles, the same principles are still relevant because what the court was doing was trying to identify what the English or plain meaning of the words were.

PN44.

While my learned friend says that this is not a dispute about whether it is training or work, this is where we fundamentally differ, Commissioner, because what we say is that whilst the question is, does "during paid time" equal rostered hours of work and we say you can never draw that conclusion because there would have been something along those lines in either the clause - the training clause - to say shall be added to the - for example, if the clause said, “hours attended in training shall be added to the rostered hours of work”, there would be no dispute today between the parties as to what the clause meant. However, fundamentally different - - -

PN45.

THE COMMISSIONER: That's a very optimistic view of the world, Mr Angelopoulos.

PN46.

MR ANGELOPOULOS: However, fundamentally different words have been used in that clause and in fact words which only appear in that clause. There's no other- that scheme with "during paid time" anywhere else in the agreement. Although the word "paid time" appears in one or two other occasions, as I've put in my submissions.

PN47.

The reason I say that what is important is if you look at the submissions of my learned friend, he basically says in those submissions, you must disregard the decision of Excellior. The point is, it is a significant decision and it does go to the heart of this issue; that is, does training equal work? The next question that the court had to consider, well, the rules are that training and work are not the same thing so you don't add what are called emoluments of work to training because they're fundamentally different. People are actually not performing their duties when they're training, they're doing something quite different. If the answer then is - although there are differences, if there is a enough in the language of the relevant clause to actually give training the qualities of work or the features of work; that is, in this case, to be added to the rostered hours, then you would have to be satisfied of that.

PN48.

Particularly, if you look at that decision, Commissioner, you'll see that in that particular case, the language of a clause in that agreement did effectively sort of - was a deeming provision and the court said that's still not enough. We don't even get to the point of a deeming provision, but - - -

PN49.

MR GOME: Sorry - - -

PN50.

MR ANGELOPOULOS: That's all right. I'm just saying, as an overview, that this is what why I'm saying these are the fundamental differences. What you'll have is, from our witnesses - - -

PN51.

MR GOME: Sorry, if I may? But it wasn't an agreement in that case, it's an award and we say the distinction is relevant.

PN52.

MR ANGELOPOULOS: That's fine. I'll turn to those issues later, Commissioner, but we say that is basically irrelevant. I'm not going to go through the details right now but I'm just saying, it is a fundamental decision which we say - and it's not just a decision which stands in its own right. It's a decision which has a history of other decisions of the Full Court or the Federal Court and other decisions of - for example, decisions of the South Australian Industrial Relations Commission which have been referred to in our submissions, where that distinction and where those considerations are; does the language of the - is the award or the agreement - go as far to actually overturn that distinction between work and training and to give training the qualities of being at work?

PN53.

In that so doing, that is, that is to be added to the rostered hours because only if it is work can it be rostered hours, does it actually equate to work? If it doesn't equate to work, then it can't be added to the rostered hours. There has to be something in the clause, in the language of the agreement, in this particular agreement, which gives it that quality. It has to be from the plain meaning or alternatively, if it is ambiguous, then you look at the background and the objective intention of the parties.

PN54.

We say, Commissioner, that certainly 7.1.1 doesn't take you to the extent where my learned friend seeks to take you, it just gives you the ability to actually average. In fact, as my learned friend has said, some evidence, and actually evidence will be presented through the witness statements from Mr McGrath, of how overtime was calculated with respect to Mr Howarth, at this time, and how it actually did change subsequently after 1 January, so after the training had occurred. But nevertheless, it wasn't in the context of how - although 7.1.1 gives that ability, that was not particularly relevant here.

PN55.

Your Honour, this case is quite fundamental because what it does is - you must remember that before this agreement came into force, there was no entitlement to any form of payment for training for Mr Howarth; that is, if the company said to him, “You must do” - and I'm using an extreme example here - “350 hours of non‑stop training” and he did it, he will not get paid one cent for it. What this clause has sought to do, we say, is simply - well, not overturn, but change the fact that is to provide for training. So when he is on training he is to be paid, not that it is to be given the qualities of work and therefore added to the rostered hours of work.

PN56.

I won't repeat the submission but, Commissioner, my submissions go into quite a lot of detail about that distinction. The other issue, of course, Commissioner, is that we say that Mr Howarth was not required, under his employment, to do the training. Yes, he was required to do this training if he wanted to keep working at the Defence portfolio, but it was never a requirement of his employment contract because he is not employed as a security guard at the Defence portfolio - at DIGO - he's employed as a security guard. This competency is simply for people who work - security guards, which includes Mr Howarth, who currently work, or did work at that time, on the Defence portfolio sites. For people who did not work on the Defence portfolio sites, that training was not necessary.

PN57.

What we would say, Commissioner, is that if he didn't do that training, his employment would not come to an end because it wasn't a requirement. He would still be working for Wilson, more than - well, not more than - will be at another site, if that was - - -

PN58.

THE COMMISSIONER: I have read those submissions that you made. I must say - and I need to think through them further - but I'm not entirely sure of the relevance of them. The fact is that he did do the training and we've got to consider what is the meaning of "during paid time". I suppose the other issue is, what's the reality? If he refused to do the training - I accept you say it's a discretionary thing, he could have refused to do it - the consequences would have meant that he would have had to be relocated elsewhere. I don't know whether that's even a possibility or - but before we even go there, the fact is he did do the training. I'm just not sure about the relevance of the submission.

PN59.

MR ANGELOPOULOS: There's no question, Commissioner, we don't deny the fact that he did do the training, but what you - I mean, whilst a fundamental issue is about the meaning of "during paid time" and actually at no cost, there are some preliminary steps. So the question is there, was it a required competency? So whilst the fact that he did do the training and he was paid at sort of the ordinary rate, accordingly, paid for that time, we don't deny that that's happened. But we're saying that in fact to invigorate the clause, or to bring it into effect, that step has first - you first have to be satisfied that that requirement has been met before you can even get to the whole "during paid time" exercise, but - - -

PN60.

MR GOME: Sorry. On that point, Commissioner, this is our objection: my learned friend has just said you need to be satisfied on this point before you can even get to interpreting the agreement and that's the problem. This is a jurisdictional objection. This says that the training that Mr Howarth went to was not required.

PN61.

THE COMMISSIONER: No required to be performed, yes.

PN62.

MR GOME: We've had the jurisdictional hearing, it wasn't put. Mr McGrath sat and watched me give evidence. Our submission is that the respondent should not be allowed to lead any evidence or make any submissions on this point.

PN63.

MR ANGELOPOULOS: Your Honour, I object that it's actually a jurisdiction objection because I'm not saying that this is a matter that needs to be determined before you get to consider the terms of the agreement. It's a word in the clause of the agreement. So what I'm saying is the clause has a number of elements. "During paid time" is just one of those elements and why - I acknowledge it's the biggest, it's the key element but it's - - -

PN64.

THE COMMISSIONER: If Mr Howarth wants to continue to work at his present location, this is training that's required to be performed or otherwise required by the company.

PN65.

MR ANGELOPOULOS: It's a competency required for him to work at this site, yes.

PN66.

THE COMMISSIONER: Yes.

PN67.

MR ANGELOPOULOS: The evidence that will be led, Commissioner, from Mr McGrath and in particular from Mr Howarth's own contract of employment, is that he's not employed - if his contract of employment, Commissioner, put simply, said Mr Howarth is employed to work as a security guard at the Defence portfolio then it was a required training for that. He is employed as a security guard, full stop. So that means, and if you look at the language of the contract, he can be moved around. In fact, if you look at his contract, he's not actually at the site now where he was when the contract was entered into. So that shows that, but - there's that part.

PN68.

The other part, Commissioner, is that it's required, it has to be "during paid time" and at no cost to the employer and that we say that's - "at no cost to the employee". We say that that part, although it seems not to be a critical issue, is really about the fact that what it's trying to do is - there's a hive-off in the next subclause about the private security licence and that this is not within that category but there is no cost to the employee in having to attend this site because - training, because what that relates to is, if he was required to actually undertake his private security licence, he would have to pay for that himself and do it in his own time.

PN69.

MR GOME: Commissioner, it's a jurisdictional objection and in paragraph 59 of your decision - and I assume that everybody's got it - the first sentence - - -

PN70.

THE COMMISSIONER: Sorry, 59?

PN71.

MR GOME: Paragraph 59:

Given the terms of clause 16.1, I am satisfied firstly that both the accommodation issue, which has been settled, and the overtime issue which hasn't, can be characterised as being to do with application of the clause. Firstly, attendance at the training was a requirement of Wilson Security and was not training associated with the employee's security licence requirement.

PN72.

Paragraph 1 also makes a reference to:

In August last year, both men -

PN73.

Being Mr Howarth and Mr White -

together with a number of their colleagues, were required to attend a training course in Melbourne.

PN74.

It's a jurisdictional objection that they could have raised at that point, Commissioner, and I've got a couple of other submissions that I would make in relation to why they should not be allowed to pursue that now. Firstly, it's been led through Mr McGrath who sat and did not give evidence at the jurisdictional hearing. If there was any suggestion from Mr McGrath that the training wasn't required, he had months to instruct Mr Angelopoulos along those lines. The other thing that I would say, Commissioner, is that if it's not required, then it's an above-the-agreement payment. I can tell you, Mr McGrath has not said that to me at any stage. Ms Culda has not said that to me at any stage. It's not been - - -

PN75.

MR ANGELOPOULOS: Your Honour, we're not - sorry, I object. This is now being given as evidence from the Bar table, but ultimately, I'll let - but this is evidence from the Bar table, your Honour, which I object to.

PN76.

MR GOME: If the company genuinely had that position, it could have said that at any of the conciliations, it could have said that at the jurisdictional hearing. It hasn't. I can cross-examine Mr McGrath on this later on if I need to, but Mr McGrath did give an example of the company's generosity and it wasn't that we've paid 200 employees eight hours’ worth of pay for something that we didn't have to and reimburse their petrol money and provide them lunch. The quantum, the scope of the company's generosity was explained as, “We got them gourmet pizzas, we had seafood pizza for lunch”. That's the only time that there's been any suggestion of largess on the company's part.

PN77.

So there's no good reason why they should be allowed to make a jurisdictional objection now. On the contrary, there are good reasons why we, as the applicant, should be entitled to rely on the fact that the decision which you handed down on the question of jurisdiction which hasn't been appealed, has determined the matter. We’re prepared to look at the interpretation of the agreement and not to go back over something that the company has now thought up or Mr Angelopoulos may have subsequently suggested to them.

PN78.

THE COMMISSIONER: You just lost me there, the reference to the gourmet pizzas. I'm not too sure of the relevance there. I must say, Mr Angelopoulos, leaving aside whether it's appropriate for this matter to be raised, I do understand the point you made and I'm not certainly not expressing a concluded view about it at the moment, but "all training required to be performed, whether in respect to a skill competency requirement or otherwise required by the company". I accept that at the very end of the day, if Mr Howarth decided not to participate, he could, and the consequences were that, I presume, he'd be possibly relocated elsewhere. But this is not "in respect to a skill competency requirement or otherwise required by the company". I'd need to give that a lot more thought, leaving aside any issues about whether it's appropriate for this further objection to be raised at this point.

PN79.

MR ANGELOPOULOS: Commissioner, look, two points: one is, I certainly disagree that this is a jurisdictional issue and the parts that Mr Gome took you to in the decision basically do not go as far as what he suggests they do; that you didn't actually make findings. What you made the finding was that this was - you didn't make a formal finding because your findings were about the issues at hand but there were some preparatory words about that it was a competency that was required, because there an assumption there, because there was no conducting of an analysis on that issue.

PN80.

Secondly, Commissioner, what we say is that it's not jurisdictional because the jurisdictional argument is really about the operation of whether the clause was fully enlivened. This is not about an enlivenment of the clause; this is about an element of the clause. Be that as it may, Commissioner, I'm not going to pursue the matter any further. As I said early on, I don't think that that is a central, a critical issue, but nevertheless it is an issue.

PN81.

THE COMMISSIONER: Thank you.

PN82.

MR ANGELOPOULOS: The final point, Commissioner, that I - there are two just final points that I do wish to make, is that the evidence will also be led, Commissioner, that in fact although Mr Howarth was - it had been indicated that he would be attending for eight hours’ worth of training and he was actually paid for 10 - eight, sorry, not 10 - eight hours at ordinary time, nevertheless the training records show that wasn't just himself but everybody else who attended on that day. Although they were paid for eight - worked there, basically were training for less than eight hours, so it didn't come as a whole eight hours. Finally, Commissioner, I just - - -

PN83.

THE COMMISSIONER: Again, I read that in - what's the relevance of that? I mean, just the company's given them two hours more than they - the training concluded more quickly than perhaps it was anticipated it might?

PN84.

MR ANGELOPOULOS: No. What it means, Commissioner, is this: that if for any reason, Commissioner, you are of the view that hours spent in training are - that "during paid time" for hours spent in training is to be added to the rostered hours of work, then basically you don't just basically say Mr Howarth is entitled to another eight hours.

PN85.

THE COMMISSIONER: Okay. I should only treat it as six hours rather than eight.

PN86.

MR ANGELOPOULOS: Yes, and deduct the amount that was actually overpaid as well, effectively.

PN87.

THE COMMISSIONER: Should I make any deduction for the gourmet pizza?

PN88.

MR ANGELOPOULOS: That's not something I'm giving any evidence about, Commissioner, because it wasn't intended to be any form of deduction. That's something Mr Gome has suggested. Just finally, Commissioner, and this is something that I did want to just - I should have raised at the very beginning - and that is that at the very beginning of his opening Mr Gome did say that the matter was not resolved following the jurisdictional hearing. The point is, there were two issues in the jurisdictional issue. One issue has been resolved and that is the accommodation issue. So one part has been resolved and the parties are finalising the terms now and I'm in fact just waiting for the union office, I think.

PN89.

THE COMMISSIONER: You also got rid of Mr White too, if I can put it that way. So we are narrowing the issues, Mr Angelopoulos.

PN90.

MR ANGELOPOULOS: So we are narrowing the issues, yes. So that was just the only others, just to bring it to the - on the record that that issue has been - - -

PN91.

THE COMMISSIONER: I am optimistic that one day this matter may be completely resolved one way or another. But that's, again, a very optimistic view.

PN92.

MR ANGELOPOULOS: Thank you, Commissioner.

PN93.

THE COMMISSIONER: Thank you, Mr Angelopoulos. Mr Gome?

PN94.

MR GOME: I don't think I have anything that I haven't already said, Commissioner.

PN95.

THE COMMISSIONER: You're actually not going to call any of your witnesses, I understand. Is that correct?

PN96.

MR GOME: No, that's not correct, Commissioner. Chris White, we won't be calling, but Mr Howarth and Ms Keogh, we will be.

PN97.

THE COMMISSIONER: Okay. Sorry, but I didn't understand, are they going to be cross-examined? You said Ms Keogh might.

PN98.

MR ANGELOPOULOS: My intention is to do a short cross-examination of Ms Keogh, but not of Mr Howarth.

PN99.

THE COMMISSIONER: Okay, yes. Sorry. I'll let you proceed, Mr Gome, in regard to your witness evidence anyway, at this stage.

PN100.

MR GOME: Thank you. We'd like to call Ms Keogh to give evidence.

<ERIN ELIZABETH KEOGH, AFFIRMED [10.42 AM]

<EXAMINATION-IN-CHIEF BY MR GOME [10.42 AM]

PN101.

MR GOME: Thank you. For the record, could you please state your name and occupation?---My name is Erin Elizabeth Keogh. I'm the Senior Industrial Officer with United Voice.

**** ERIN ELIZABETH KEOGH XN MR GOME

PN102.

Thank you. Ms Keogh, have you prepared a witness statement for these proceedings?---Yes, I have.

PN103.

Do you have in front of you now a copy of your statement of some 30 paragraphs, and three attachments, dated 7 January?---Yes, I do.

PN104.

Are there any changes that you would like to make or additions that you would like to put into that statement?---No, there's not.

PN105.

Thank you. I'd like to tender that.

PN106.

MR ANGELOPOULOS: Your Honour, I object to certain paragraphs in the witness statement because they're purely hearsay, and hearsay at no value whatsoever. Paragraph 7, paragraph 8, paragraph 9 and paragraph 10. Paragraph 10, Commissioner, is an extract of the clause which is probably in itself not in dispute of what was in there, but these are - they're purely hearsay. They have no probative value whatsoever. In fact we say, Commissioner, they don't advance the submissions in any event in any way. They don't actually really say what the discussions were. They're based on, "We had discussions", and this was the outcome, basically. So we don't know anything about the discussions, they have no probative value, and we say that those clauses of the witness statement should be struck out.

PN107.

THE COMMISSIONER: Mr Gome, do you have anything to say in response?

PN108.

MR GOME: No, Commissioner, I don't have an objection to that.

PN109.

THE COMMISSIONER: Okay. Mr Angelopoulos, I intend to note those objections. I do understand the basis on which they're made, I will take those into consideration in dealing with the witness statement of Ms Keogh.

PN110.

MR ANGELOPOULOS: Sorry, Commissioner, I do realise I should have actually extended that to paragraphs 11 and 12.

PN111.

THE COMMISSIONER: I did notice that as well, yes. Thank you.

PN112.

MR GOME: Commissioner, in that case, is it necessary to have the attachment EK1 appear through some other means if there's a possibility that the clause which attaches it at the moment is going to be struck out?

**** ERIN ELIZABETH KEOGH XN MR GOME

PN113.

THE COMMISSIONER: What I indicated was I'm not proposing to strike out those particular clauses from the witness statement. I have noted the objection of Mr Angelopoulos and I understand the basis upon which it is made and I will consider the witness statement in that light. I'll mark the statement UV-1.

EXHIBIT #UV-1 - STATEMENT OF ERIN ELIZABETH KEOGH DATED 07/01/2014 WITH THREE ATTACHMENTS EK1, EK2, EK3

PN114.

MR ANGELOPOULOS: Commissioner, just for the sake of completeness, if in determining the weight of that. there's an issue about that exhibit, I'm certainly happy to actually - so as to depart from the principles and allow that exhibit to be there, even if for some reason you determine, in summary to - where they - you may be not formally excising it, but determining the weight, that it should not be taken into account.

PN115.

MR GOME: Thank you. I have no further questions, Commissioner.

<CROSS-EXAMINATION BY MR ANGELOPOULOS [10.46 AM]

PN116.

MR ANGELOPOULOS: Ms Keogh, can I ask you to look at, in particular, paragraph 6 of your witness statement where you say:

My involvements included surveying the membership, meeting with leaders, drafting and developing claims, attending bargaining meetings and producing documents tracking the course of negotiations.

I note that you actually haven't exhibited any documents to your witness statement which track the course of negotiations. Do you have any?---I have some shorthanded notes of my own, from my own memory. However, I don't have on file any other documents.

PN117.

Commissioner, when I actually - this makes a difference, but I do call upon Ms Keogh to produce those handwritten notes so we can make an assessment of what they actually do say. One of the difficulties, I don't want this to extend out for days on end, I'm making sort of a side submission on this issue, but I'm concerned that there's references to negotiations and documents but none of them have been exhibited. To that end, I think even that clause should therefore be excised, if that's the case, to the extent that it refers to producing documents.

PN118.

THE COMMISSIONER: Are we talking about paragraph clause 6?

**** ERIN ELIZABETH KEOGH XXN MR ANGELOPOULOS

PN119.

MR ANGELOPOULOS: Paragraph 6, yes. In particular it says, "producing documents tracking the course of negotiations". Ms Keogh just said that she actually has handwritten notes or notes from that time but she has not produced or attached any of those notes to her statement.

PN120.

MR GOME: But, Commissioner, you don't need to know everything that happened in every meeting, in every conversation, in every lift or whatever. We say the objective material is before the Commission in documents that either Ms Keogh or, we understand, Mr Maclagan will put before you.

PN121.

MR ANGELOPOULOS: If that's the case, Commissioner, look, I won't take it any further but I'd just make a submission at the end about the adverse inference that should be drawn from failing to provide those documents.

PN122.

Ms Keogh, were - and I do apologise if this somehow sounds somehow in any way diminishing your role in the negotiations, but in those meetings, were you sort of primarily - did you take an active role in those meetings in terms of speaking or were you primarily - I'll ask - leave it there. Did you take an active role in those meetings?---In the negotiation meetings themselves?

PN123.

Yes?---It was primarily our assistant secretary, Ben Redford, who led the negotiations with the representatives from Wilson Security. He was the primary negotiator, so in the actual bargaining meetings themselves, he was the primary speaker on behalf of the union.

PN124.

So you didn't actually speak at those meetings?---I did speak at those meetings. However, I wasn't the primary negotiator. That was Ben Redford.

PN125.

Did you speak about the clause issues, about the clauses or perhaps the training clause, any other clauses?---I did speak to clauses and claims that the union had, yes.

PN126.

What about the training clause? Do you recall if you actually spoke about that?
---I don't recall.

PN127.

Okay. Thank you. I understand you'll - Mr Maclagan will later give evidence that what you - you were primarily taking a lot of notes in those meetings. Is that correct?---That's correct, yes.

**** ERIN ELIZABETH KEOGH XXN MR ANGELOPOULOS

PN128.

Yes. Can I take you to paragraph 24 of your witness statement? You say there:

Upon reading the proposed training clause, Mr Maclagan indicated his agreement using simple words to the effect of “yes” and made no comment that included words to the effect of that payment will be at the ordinary time rate.

PN129.

Mr Maclagan will give evidence that a lot of the meetings - there were many meetings other than the four meetings where he just had meetings with Mr Ben Redford and didn't involve the bargaining team. Are you aware that those meetings happened?---I can't recall. I remember the series of negotiation meetings. I can't recall any other meetings that I was aware of.

PN130.

But you're not aware whether or not Mr Maclagan had meetings just with Mr Ben Redford himself?---No, I'm not.

PN131.

No. Mr Maclagan will actually give evidence that the words which are referred to in here were not actually in the bargaining meetings, but in those private meetings with Mr Ben Redford. So you can't comment any further on that, can you?
---What words?

PN132.

That the words about his - about the meaning of the words "payment will be at the ordinary time rate", and that was what was agreed to with Mr Redford?---Sorry, I don't understand the question.

PN133.

Mr Maclagan will give evidence that the reference to the payment at "ordinary time rate" was made in meetings which he had solely with Mr Redford and in fact that was an agreement that he reached with Mr Redford at the time of those private meetings, as to the operation of the clause and the use of those words. What I'm simply asking you is that you are not aware that (a) that those meetings had happened and (b) the content of any of those meetings?---That's correct.

PN134.

Your Honour, I'm just trying to work out the best way to actually deal with a document which is an exhibit to a witness statement which hasn't yet been tendered. But I’d just ask my learned friend to - sorry, my - - -

PN135.

Ms Keogh, can I actually ask you to have a look at this document? Can you just read what it says on the front page of that document? Read it out aloud, sorry?
---Yes:

Security Union Enterprise Bargaining 2011, a discussion paper about enterprise bargaining discussions held between the Security Union and MSS, G4S, Wilson and ISS Security, June 2011.

PN136.

Okay. So at that point in time the negotiations were held between the union and the main security industry companies, it was sort of like a group effort?---That's correct.

**** ERIN ELIZABETH KEOGH XXN MR ANGELOPOULOS

PN137.

Yes. Can I take you to page 7 and paragraph 8? Can you read the content of the heading - can you read the heading and what appears underneath it?---Out loud?

Yes?---

Paid Training Union Proposal. The union has proposed that the new agreements provide that where an employer requires an employee to undergo training that is not associated with licensing requirements, that the cost of the training be paid by employers and provided in paid time.

PN138.

Okay?---Continue?

Yes?---

The employer’s response to this proposal was not clear. Meeting 2, 11 May 2011. The union has put forward this proposal on the basis that it is the standard approach taken in training of employees in most work places and cannot understand the employer's objection, if there is one.

PN139.

Can I ask you firstly, this document, is this a document that's been created by the union?---That's correct.

PN140.

Okay. So what it states in the first paragraph is the union's proposed training clause or a summary of the clause?---A brief summary of the clause, I would agree.

PN141.

Yes. In your exhibit, which is EK1, you have produced an earlier document produced by the union of its position on enterprise bargaining, including the training clause, but you haven't produced this document. Can I ask you to look at EK1, please, and in particular, can I ask you to go to page 2 where it says "Overview" and at the very bottom of the page is - so can you read where it starts "During the meeting" and then jump to number 8?---

During the meeting security and union delegates explained that in a new agreement with each of G4S, MSS, ISS and Wilson they wish to preserve existing conditions that apply under the current agreement as well as make the following improvements: (8) a paid training entitlement.

PN142.

Okay, and now, on page - it's proposal number 8 on page 15, "Paid Training"?
---Page what, sorry?

PN143.

Page 15, sorry. Proposal number 8, page 15. When you compare the document which I asked you to have a look at and the wording in there, you agree that the words aren't the same between the two clauses?---No, it's not verbatim, the same.

**** ERIN ELIZABETH KEOGH XXN MR ANGELOPOULOS

PN144.

No. It's actually far from being verbatim the same, isn't it?---I don't understand what you mean by that question.

PN145.

You said, "it's not verbatim, the same". I'm saying it's far from verbatim the same. Actually, there's quite different - there are a number of differences between the two clauses, aren't there, in the language? I'm not talking about intent but the language?---I think they're similar, is my view.

PN146.

Okay. I'm not talking about intent?---Sure.

PN147.

I'm talking about the language. I'll put it to you they’re actually not similar, they're actually quite different clauses?---(No audible reply).

PN148.

Just one last question, Ms Keogh. Can I take you to EK3? Just to clarify; this document was a document that was produced by Wilson, together with the union, to explain the outcome of the agreement that was reached for the agreement?---That's correct.

PN149.

And what the employers would be voting upon?---That's correct.

PN150.

That's correct. One of the matters that it identified that would now be included in this agreement, which did appear in previous agreements, was paid training?---That's correct.

PN151.

But it doesn't provide any explanation of how that paid training clause would operate in this document?---This particular document, no.

PN152.

No. Thank you.

PN153.

That's all, your Honour.

PN154.

Thank you very much. Mr Gome, anything further?

PN155.

MR GOME: Yes, briefly, thank you, Commissioner.

<RE-EXAMINATION BY MR GOME [10.59 AM]

PN156.

MR GOME: Ms Keogh, if I could take you to the front page of EK1 and if you could read the second sentence, please?---

Security Union proposals for new enterprise agreements with ISS Security, G4S, MSS Security and Wilson Security in 2011.

PN157.

If you could read the third word in that sentence?---"Proposals".

**** ERIN ELIZABETH KEOGH RXN MR GOME

PN158.

THE COMMISSIONER: Sorry, Mr Gome, but where are we now? EK1?

PN159.

MR GOME: Sorry. We're at the front page of EK1

PN160.

THE COMMISSIONER: The very front page?

PN161.

MR GOME: Yes, the very front page.

PN162.

THE COMMISSIONER: Sorry. Yes, thank you.

PN163.

MR GOME: If I can take you to the front page of DML1 and again, if you could read the second sentence appearing on the front page there?---

A discussion paper about enterprise bargaining discussions held between the Security Union and MSS, G4S, Wilson and ISS Security, April to June 2000.

PN164.

Again, if I could get you to read the first three words there?---"A discussion paper".

PN165.

Thank you.

PN166.

Nothing further, Commissioner.

PN167.

THE COMMISSIONER: Thank you very much, Ms Keogh, for your involvement in the proceedings. You may now stand down. You're obviously free to remain in the hearing room now, if you choose to do so.

<THE WITNESS WITHDREW [11.00 AM]

PN168.

MR GOME: Thank you, Commissioner, I'd like to call Mr Howarth.

PN169.

MR ANGELOPOULOS: Commissioner, I'm just trying to work out what to do with the document I've handed up. I haven't formally tendered that into evidence at this stage. However, it will be part of the evidence of Mr Maclagan. Probably for the sake of seamlessness, it might be worth working leaving it as part of these exhibits or - rather than actually formally tendering it into evidence now.

PN170.

THE COMMISSIONER: Happy to treat it that way.

**** ERIN ELIZABETH KEOGH RXN MR GOME

<PAUL HOWARTH, SWORN [11.01 AM]

<EXAMINATION-IN-CHIEF BY MR GOME [11.01 AM]

PN171.

THE COMMISSIONER: Thank you very much, Mr Howarth?---Good morning, Commissioner.

PN172.

MR GOME: Thank you. For the record, can you state your name and occupation please?---It's Paul Howarth and I'm an Access Control Officer at AGO, formerly DIGO.

PN173.

Mr Howarth, have you prepared witness statement for this proceeding?---Yes, I have.

PN174.

Can we hand you a copy of the statement? Mr Howarth, do you have in front of a copy of your statement of some 20 paragraphs and two attachments dated 5 December 2014 ?---Yes, I do.

PN175.

Are there any changes or additions that you would like to have made or included to that statement?---No, there isn't.

PN176.

Thank you. I'd like to tender that, Commissioner.

PN177.

THE COMMISSIONER: I mark that UV-2.

EXHIBIT #UV-2 - STATEMENT OF PAUL HOWARTH DATED 05/12/2014, WITH TWO ATTACHMENTS

PN178.

MR GOME: Mr Howarth, I'd like to take you to paragraph 17 of your statement where you talk about how overtime is paid, or was paid at the time that you undertook the training. I'm wondering if you could describe in your own words how you understand overtime was distributed at that time?---Well, at that time, my understanding is that overtime was factored into our rostered hours and paid per fortnight. We worked, at that stage, 10 hours ordinary time with two hours overtime factored into that for the 12-hour shifts.

PN179.

Over what period of time was the overtime averaged?---Over 76 hours or over whatever falled(sic) into the fortnight. They changed because they're rotating shifts so it's whatever fell into those rostered fortnights.

**** PAUL HAWTHORN XN MR GOME

PN180.

I've just got one other question for you and that relates to the time that you actually spent in the classroom, in the training room, on the day of the training. How many hours were you in the classroom?---Not the full eight hours. I can't tell you exactly, but it wasn't the full eight hours. We actually finished early, but that's what the instructor said would happen.

PN181.

How long did you have as the lunchbreak?---Roughly 45 minutes to an hour and they provided lunch during that time.

PN182.

Thank you, Mr Howarth.

PN183.

Nothing further, Commissioner.

PN184.

THE COMMISSIONER: Thank you very much. I take it, Mr Angelopoulos, there's nothing from you?

PN185.

MR ANGELOPOULOS: No, Commissioner.

PN186.

THE COMMISSIONER: Mr Howarth, thank you very much for your involvement in these proceedings. You may now stand down.

<THE WITNESS WITHDREW [11.04 AM]

PN187.

MR GOME: Thank you, Commissioner. We have no further witnesses.

PN188.

THE COMMISSIONER: Thank you, Mr Gome.

PN189.

MR ANGELOPOULOS: Your Honour, I'd like to call our first witness, Mr Dean McGrath. He should be out there somewhere. Your Honour, if I could also have the document back that I actually asked Ms Keogh to look at, which may still be sitting in the witness box.

<DEAN McGRATH, SWORN [11.06 AM]

<EXAMINATION-IN-CHIEF BY MR ANGELOPOULOS [11.06 AM]

PN190.

THE COMMISSIONER: Thank you, Mr McGrath?---Good day.

How are you?---Good thanks. You?

Good, thank you.

PN191.

MR ANGELOPOULOS: Mr McGrath, have you made a written statement dated 23 December 2014 in this matter?---Yes, I have.

**** DEAN McGRATH XN MR ANGELOPOULOS

PN192.

Can I ask you to have a look at this document? Is that the witness statement that you have prepared?---Yes, it is.

PN193.

With the attached exhibits?---Sorry?

PN194.

With the attached exhibits to the witness statement?---Yes.

PN195.

Are there any changes or corrections that you want to make for that witness statement?---Yes, there is actually. On DMG5, I've underlined or identified one, two, three, four, five. The next page I put five - four, five, six, seven, eight. It should actually continue, five, six, seven, eight.

PN196.

That's the only amendment?---Yes.

PN197.

I wish to tender the witness statement and the exhibits, your Honour.

PN198.

THE COMMISSIONER: I'll mark that WS-1.

EXHIBIT #WS-1 - STATEMENT OF DEAN MCGRATH DATED 23/12/2014, WITH ATTACHED EXHIBITS

PN199.

MR ANGELOPOULOS: Thank you.

PN200.

Mr McGrath, can I just ask you to turn back to those - the amendment which you referred to and in your witness statement you say that this reflects the roster cycles that operated at Wilsons where Mr Howarth worked at the time and in relation to himself. Is that correct?---That's correct.

PN201.

Can you explain how the roster cycle worked at the time Mr Howarth was working in that cycle that you've identified?---Yes. The site ran on an eight-week roster cycle, with two day shifts and - or two day shifts, two night shifts. In four of those eight-week cycles, it would be a four-day week and four weeks of that cycle would be a three-day week.

PN202.

Okay. Can I ask you to have a look at that document again and you will note that there's some dates where there's 12 ordinary hours of time and then other times, overtime would be added after 10 hours. What's the difference? Why has that happened?---Some of the - obviously some of the hours are - we have to allocate the ordinary hours and overtime hours in that eight-week cycle and we'd allocate portions of the overtime into the four weeks of the four days and the remaining would just be ordinary hours for the rest of those weeks.

**** DEAN McGRATH XN MR ANGELOPOULOS

PN203.

Can I just ask you to have a look in - so in early parts, there's actually sort of three days of working of 12 hours so that would add up to 36 in that week. Is that correct?---Yes. So those are - - -

PN204.

They would just be ordinary hours?---Yes.

PN205.

In another cycle, there's 10 hours and two hours added and - - -?---Yes. So that's the next four weeks.

PN206.

That's because there would be - it would be in excess of 38 hours in that week?---Yes.

PN207.

Thank you. In your witness statement you do also say that after this, as of 1 January, there was a change in how overtime was allocated. How did this come about?---The site wanted to change the roster into - the whole four days would simply four dayshifts and the next - and then four on, four off. The next four days would be nightshifts. Simply took that option or consideration from the employees on board and said that we were happy to do that on the proviso that we would allocate ordinary hours evenly across the roster cycle, which they all signed off on, and we implemented the roster early January.

PN208.

Can I ask you a further question? Mr Howarth was paid ordinary time rate from when he attended the training?---That's correct.

PN209.

Whose decision was it, to actually pay ordinary time rates?---That was mine.

PN210.

Why did you make that decision?---Because it was training and separate to the rostered site duties. Exclusively, that was the only reason.

PN211.

Your Honour, as we're not pursuing the issue about the requirement issue, I won't pursue that any further.

PN212.

That's the only questions I have of you, Mr McGrath. Mr Gome may ask you a couple of questions now?---Steve?

<CROSS-EXAMINATION BY MR GOME [11.07 AM]

PN213.

Dean. I'm just wanting to get clear in my mind the way that overtime was calculated for the period in question. My understanding of what you've just said is that overtime was averaged over an eight-week period, being the roster cycle. Is that correct?---The revised roster in January 2014 that we put in place was discussed that way, that's correct.

**** DEAN McGRATH XXN MR GOME

PN214.

Sorry. I'm talking about the - at the time that the training - - -?---Training.

PN215.

- - - was undertaken, is your evidence that the overtime was averaged over an eight-week roster cycle?---No, that's not correct.

PN216.

Okay. So it's not averaged at that time. Is it paid within the pay fortnight?---It's paid based on the overtime allocation for those four weeks where they work four days.

PN217.

Can you explain the overtime allocation for the four weeks where they work four days?---Other than the - averaged over the eight-week cycle of 38 ordinary hours, the remaining hours of overtime were allocated in that four weeks spread evenly across the shifts.

PN218.

So you've mentioned there's four weeks where people are working four 12-hour shifts?---Yes.

PN219.

And four weeks where they're working three 12-hour shifts?---Yes.

PN220.

MR ANGELOPOULOS: Commissioner, perhaps we could just leave it to Mr Howarth because this is just about Mr Howarth rather than people generally. But I accept the concept of what he's about - Mr Howarth's working at that time, at that point time, so if we can just focus on that that's how Mr Howarth would have worked in that time.

PN221.

MR GOME: I'm trying to keep it really clean.

PN222.

You have said, Mr McGrath, there's - in an eight-week roster cycle, the way that the roster fell for Mr Howarth at that stage was such that he would work four weeks with four days of 12 hours in each of those weeks and four weeks where he would work three days of 12 hours?---That's correct.

PN223.

Yes, okay. The pay period is a fortnight, isn't it?---That's correct.

PN224.

Yes, okay. So let's say in this eight-week period, of which four weeks have four days of 12-hour shifts and the other four have - four weeks have three days of eight-hour shifts. Let's say we pick a fortnight where there are two consecutive weeks where Mr Howarth works four shifts. So that would be eight shifts of 12 hours in a two-week period. How would the overtime be paid in that pay fortnight?---As per the attachment, it's spread evenly. It's two hours across each of the cycles, each of the shifts worked.

**** DEAN McGRATH XXN MR GOME

PN225.

MR ANGELOPOULOS: Your Honour, I don't want to interrupt but it may assist Mr McGrath if he actually just looks at the exhibit and just sort of looks at - based on what he's actually got in front of him, rather than trying to sort of talk in general terms. I don't want to object, but it may assist.

PN226.

MR GOME: Yes, look, that may assist. So if we can look at the actual attachment and then maybe if you can identify - yes, if you can talk us through. We've got an eight-week cycle over which the overtime is being averaged and if you can just explain to us - yes, if you can refer to the attachment in explaining your position?---Okay. If we use DMG5 number, for example, 3 and 4, you'll notice there's four particular days of the roster. However, having said that, Paul Howarth was sick on the 21st of the 8th, you'll notice there on the right-hand side. So technically that would have been in that cycle 3. So he actually didn't work those four shifts, he only worked the three in that particular cycle, but he did pick up some voluntary overtime. By the way, that particular week, you can see the spread of hours; two hours of rostered overtime for 3 and 4, as you can see there clearly.

PN227.

Okay. So with week 4, can you explain how it is that the first three shifts - or sorry, the first three dates from Tuesday, 27 to Thursday, 29 August have "OT1" and Friday the 30th has "OT2"?---Probably because it was the Saturday penalty.

PN228.

OT1 is at 50 per cent loading, is it?---Time and a half.

PN229.

Time and a half, yes?---Yes.

PN230.

Just while I've got you here, Mr McGrath, you did say this before, the numbering on the second page should be continuous. Is that right?---Should be, that's right.

PN231.

Your annotations?---Yes. Should be six, seven, eight, rather than four, five, six and that the seven, eight should not - it's just part of the next cycle.

PN232.

Looking at this as a whole, am I right in saying that in the first two weeks, they're both of - sorry - they both have three lots of 12, being 36 hours per week and that those hours are all worked at normal time, if we - - -?---Ordinary rate.

PN233.

Yes, the ordinary rate, yes, the base rate. When there are more hours than 36 worked in a week, that the overtime is two hours attached on the end of each of those shifts?---I wouldn't put it in those words. I would say simply that there are four weeks in the roster; that there's 36 hours of ordinary and there are four weeks where there are 40 hours of ordinary and eight hours of overtime in the roster cycle.

**** DEAN McGRATH XXN MR GOME

PN234.

Okay, that's fine. Thank you, Mr McGrath. We can put submissions about that at the end. I think that's pretty clear, thank you.

PN235.

I don't have anything further, Commissioner, thank you.

PN236.

MR ANGELOPOULOS: I don't have any re-examination.

PN237.

THE COMMISSIONER: Mr McGrath, thank you very much for your involvement. You may now stand down.

<THE WITNESS WITHDREW [11.19 AM]

PN238.

MR ANGELOPOULOS: I'd like to call Mr Maclagan. Your Honour, before we do that can I take like a short five-minute break?

PN239.

THE COMMISSIONER: Sure, certainly. Okay, we'll adjourn and - is that five minutes all you need?

PN240.

MR ANGELOPOULOS: Yes.

PN241.

THE COMMISSIONER: Okay, fine. We will adjourn until 25 past 11 and there's an adjournment till then.

SHORT ADJOURNMENT [11.19 AM]

RESUMED [11.27 AM]

PN242.

MR ANGELOPOULOS: Thank you for the time, Commissioner. I'd like to call Mr Maclagan.

<DAVID JAMES MACLAGAN, SWORN [11.30 AM]

<EXAMINATION-IN-CHIEF BY MR ANGELOPOULOS [11.30 AM]

PN243.

MR ANGELOPOULOS: Mr Maclagan, have you prepared a witness statement in this matter dated 23 December 2014?---Yes, I have.

PN244.

With that are three exhibits marked DMG1 to DMG3?---Correct.

PN245.

Can I ask you to look at this document? Is that the witness statement that you've prepared?---Yes.

**** DAVID JAMES MACLAGAN XN MR ANGELOPOULOS

PN246.

Are there any amendments or corrections that you wish to make to that statement?---Just in the last paragraph, third line from the end, just removing the word "time".

PN247.

The sentence will - - -?---Number 22.

PN248.

Okay, 22. That sentence will now read:

Irrespective of differences in the courses proposed by the union at various times and Wilson in its proposed agreement in the discussions that I had with Redford in the negotiations, it was always put and never disputed that if and when employees would be provided paid training that payment would be at the ordinary rate -

as opposed to ordinary time rate -

as that was what Wilson's clients were prepared to reimburse Wilson for.

PN249.

?---Correct.

PN250.

Thank you. I wish to tender that statement, your Honour.

PN251.

THE COMMISSIONER: WS-2.

EXHIBIT #WS-2 - STATEMENT OF DAVID JAMES MACLAGAN DATED 23/12/2014 WITH ATTACHMENTS DMG1, DMG2 AND DMG3

PN252.

MR ANGELOPOULOS: Mr Maclagan, can I ask you to look at Ms Keogh's witness statement, which I'll hand up, and the exhibit which was marked, I believe, as UV-1? Ms Keogh has responded, in part, in her witness statements to matters that you have raised in your witness statement. Can I ask you to have a look at it and identify any matters which you wish to address in Ms Keogh's witness statement?---No.

PN253.

You met Ms Keogh in the enterprise bargaining negotiations?---Yes.

PN254.

Do you recall what role she had in those negotiations?---I think or I believe, in those days most of the - all of the conversations I had were with Ben Redford and I think Ms Keogh came in after the negotiations were advanced and I believe or I recall that she wasn't directly involved in the communications, although she was part of the - as in, being in the room.

**** DAVID JAMES MACLAGAN XN MR ANGELOPOULOS

PN255.

In your witness statement, in that paragraph which you've just referred to about ordinary time or ordinary rate, when did those discussions take place with Redford? Were they in those enterprise bargaining negotiations or elsewhere?---There were two sets of meetings and Mr Redford and I used to meet on a very regular basis, just the two of us, and we'd had many meetings prior to going into the more formal meetings. So there were two distinct types of meetings.

PN256.

It was in that meeting just with Mr Redford where you actually had the discussion of how the training clause was operating?---Yes.

PN257.

Was there any dispute as to the - as to what you two understood between yourselves as to what that clause meant?---No.

PN258.

No. Was there any discussion at that stage that the clause would operate in a way where it would be added to the hours of work?---No.

PN259.

No.

PN260.

MR GOME: Commissioner, there's a little bit of leading.

PN261.

MR ANGELOPOULOS: I realised that as I was saying it, Commissioner.

PN262.

THE COMMISSIONER: Enough for me to be concerned about, Mr Gome, or a little?

PN263.

MR GOME: I just put my friend on notice.

PN264.

THE COMMISSIONER: Thank you.

PN265.

MR ANGELOPOULOS: Can I just ask you to expand, Mr Maclagan, what the discussions that you had with Mr Redford about the training clause?---Well, it was a new clause as in - as fact, it wasn't part of the previous agreement. We spoke about the - what the clause would cover, which was training which was not associated with a licence. Our view, or the company's view, was that when training is requested by companies they invariably pay for it, but they pay at the time rate. So what the - the thought was that if a company wants someone to be trained on a new system, an air-conditioning system or whatever, then it was fair to sort of pay the training for the people to come in.

PN266.

Thank you. Can I take you, Mr Maclagan, to what is marked as DML1?---Yes.

**** DAVID JAMES MACLAGAN XN MR ANGELOPOULOS

PN267.

Could I ask Mr Maclagan to have a look at what is EK1 as well?---Sorry, EK1?

PN268.

Can Mr Maclagan be - - -

PN269.

MR GOME: It's there with your notes,

PN270.

MR ANGELOPOULOS: Sorry. If you look at Ms Keogh's witness statement - - -?---Yes, I see.

PN271.

- - - that first document?---Okay.

PN272.

Okay. In your witness statement you pointed out the differences in the language between what is in EK1 in terms of the training clause which is marked as 16.1, I believe, and it's proposal number 8. It should go back - where it is. If I take you to page 15, "Proposal number 8, paid training"?---Yes.

PN273.

Which is EK1?---Yes.

PN274.

Can I also take you to the front page of that document, of EK1 sorry?---Yes.

PN275.

You will see that it says:

Security Union proposals for a new enterprise agreement with ISS Security, G4S, MSS Security and Wilson Security 2001.

PN276.

In DMG1, can I take you to page 7?---Yes.

PN277.

In particular, "Clause 8, paid training, union proposal"?---Yes.

PN278.

Just for the moment can I take you to the front page of DML1, which says:

A discussion paper about enterprise bargaining held between -

and it lists the various parties. At any stage, what if any discussions were made - when the union presented what is DML1, which is the document which says, "A discussion paper" and has a clause about training which is in slightly different terms to the other clause - - -?---Yes.

PN279.

- - -what, if anything, did the union say about the clause in that document compared to the clause in the earlier document where an actual clause was presented?---Nothing.

**** DAVID JAMES MACLAGAN XN MR ANGELOPOULOS

PN280.

Nothing. So when you left that meeting what was your understanding about what the union was proposing in the document which is called "A discussion paper"?
---At that period we were talking about the same thing.

PN281.

Same thing?---Yes.

PN282.

Although the language is different?---The language is different, yes.

PN283.

Yes. But you went away based on that different language when you had those discussions with other employees at the time?---Yes.

PN284.

Can I just ask you now, in your witness statement you actually say in that amendment in paragraph 22 that:

Employees will be provided paid training, the payment would be at the ordinary rate, as that was what was agreed.

PN285.

What did you understand in your discussions with Mr Redford as to what that actually would mean?---Ordinary rate is the rate of pay associated with the time of the training. So if the training happened on a Tuesday, the Tuesday rate applies. If the training happened on a Saturday, the Saturday rates applies and the same on a Sunday. So it was the ordinary rate of pay for the shift.

PN286.

It was just focussed on the actual time in training?---That's right.

PN287.

Mr Maclagan, can I ask you to have a look at this document? Mr Maclagan, can you identify what that document is?---Yes. It's the stat dec when we lodged the EBA.

PN288.

You swore that document at the time?---Yes, I did, yes.

PN289.

Mr Gome here actually witnessed your - - -?---Yes, he did. I remember the day.

PN290.

Can I also take you to paragraph or question 3.5?---Yes.

PN291.

Which lists matters which are included in the agreement which are not otherwise in the award, and "paid training" is listed there?---Yes.

PN292.

I'd just like to tender that, your Honour.

PN293.

THE COMMISSIONER: Yes. Thank you. I will mark that WS-3.

**** DAVID JAMES MACLAGAN XN MR ANGELOPOULOS

EXHIBIT #WS-3 - STATUTORY DECLARATION

PN294.

Just finally, Mr Maclagan, I'm going to read a short extract of the respondent's submissions to you which are headed, "Mr Maclagan's Mistake". It's only a short paragraph and I'd like you to actually respond to the submission that is made by the applicant which refers to matters in your witness statement. At paragraph 33 it starts:

Mr Maclagan is mistaken as to the nature of the discussion paper which appears as attachment DML1 to his witness statement. The document prepared by the union states that it is a discussion paper about bargaining discussions and accordingly contains an overview of both the union and the employee proposals and - - -

PN295.

THE COMMISSIONER: Sorry, Mr Angelopoulos. What are you reading from at the moment?

PN296.

MR ANGELOPOULOS: It's the applicant's submissions in reply. I apologise.

PN297.

THE COMMISSIONER: In reply, sorry.

PN298.

MR ANGELOPOULOS: Did I say applicant's submissions or did I say in reply?

PN299.

THE COMMISSIONER: You said respondent's, but in reply.

PN300.

MR ANGELOPOULOS: Sorry.

PN301.

THE COMMISSIONER: No, that's fine.

PN302.

MR ANGELOPOULOS: The applicant's submissions in reply.

PN303.

THE COMMISSIONER: Just hold on a moment, if you don't mind. I have them now, thank you.

PN304.

MR ANGELOPOULOS: Okay:

The document prepared by the union states that it is a discussion paper about bargaining discussions and accordingly contains an overview of both the union and the employee proposals and responses for the period April to June 2011. The document does not propose a new wording of the training clause.

**** DAVID JAMES MACLAGAN XN MR ANGELOPOULOS

PN305.

Then in paragraph 37 it says: "In our submission, the fact that the respondent's lead negotiator" - yourself - "and the legal representative", who is - I know Mr Levene(?). He would be horrified to know that an E was added to his surname, so perhaps that it - I assume that it - who it's being referred to:

The legal representative appeared to have interpreted the discussion paper in this way, particularly when in possession of the union's log of claims in an entirely different format and clearly directed to that purpose; reflects more on the respondent and the strength of its case than it does on the applicant.

The latter part is a submission but can I just ask you, do you - to the submission that you have made a mistake as to what the purpose of that DML1 document which has different wording for the clause on training to the earlier version?---No, I didn't make a mistake.

PN306.

No. So you understood that to be a different clause?---That's right, different, yes.

PN307.

Thank you. Finally, can I take you to - you'll have Ms Keogh's witness statement, the last exhibit, which is EK3, which is a one-page document?---Yes, EK3, yes.

PN308.

Okay. If you can just quickly look at that and just explain - and you understood this - you recognise that this represents an agreed position between the parties about the proposed new agreement that was being put up to the employees to vote. Can I take you down to where it says:

The agreement also contains other protections and improvements for Wilson officers.

One of the points is "paid training". When this document was produced, was your view about the clause - what you understood the clause - or how the clause operated and how it would - and in your discussion with Mr Redford, was the same at that stage as it was in the earlier discussions?---Yes.

PN309.

Thank you. That's all, Commissioner.

PN310.

MR GOME: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR GOME [11.45 AM]

PN311.

I just wanted to confirm, Mr Maclagan, that the way that the training clause operates is such that if somebody - an employee is required to attend work on a Saturday, that they would be paid the Saturday rates?---That's correct.

PN312.

Or if they were required to work in the evening, they would be paid the evening rates?---That's right, yes.

**** DAVID JAMES MACLAGAN XXN MR GOME

PN313.

So they would be paid the same rates as if they had worked that period of time?---Effectively that - yes, effectively.

PN314.

That's what you mean by "ordinary rate"?---Just the ordinary rate, yes.

PN315.

Yes, the ordinary rate. You said that you met with Mr Redford on a regular basis prior to more formal meetings?---Yes.

PN316.

Would you characterise those meetings as being part of the bargaining negotiations?---Yes.

PN317.

Was there any carry-over between discussions that you had with Mr Redford into the formal bargaining meetings where Ms Keogh, say, and the bargaining delegates were involved?---Yes.

PN318.

Do you say that this particular point, how the pay would operate for people required to do training, do you say that that was raised in any of the bargaining meetings where the bargaining team were present?---No.

PN319.

No. Okay. So just quiet discussions with you and Mr Redford?---Yes.

PN320.

When do you say that agreement was reached on that point?---With the negotiations, there was numerous points and effectively what we did was we reduced the size of the pie by agreeing on certain points and not agreeing on the other and I suppose, in other words, we'd be sort of horse-trading on the agreement. So we used to sell - yes, we used to discuss the points and what Wilson was prepared to accept and what we weren't.

PN321.

My question is, what day? When do you say agreement was reached on how paid training would operate between you and Mr Redford in your - prior to discussions?---I don't know what day, I can't remember. It was just part of that period.

PN322.

So you can't say when. Can you say that there was agreement - - -?---Yes.

- - - with any certainty?---Yes, there was agreement.

PN323.

But it was never brought back into a public forum?---Well, the public forum - I think Ms Keogh brings it up - it was a case of, do we accept this point? And I'd go, yes or no or - so that would be the - when that was.

**** DAVID JAMES MACLAGAN XXN MR GOME

PN324.

You don't have any dates or sorts of times of these conversations with Mr Redford. Can you give us like a ballpark figure when they started, when the last one was?---Well, the last one would have been just before the final agreement and the first one would have been probably maybe September. So it was around through September, October, November.

PN325.

Have you kept any records? Have you made any notes at all?---Not so much at the meetings that we had together, no, only the - - -

PN326.

No, because they were pretty - they were informal, weren't they?---They were informal but specific.

PN327.

Okay. And you do acknowledge at paragraph 9 of your statement that the clause that appeared in the original proposal, the document that's EK1, is the one that's ended up becoming incorporated into the agreement?---Yes.

PN328.

It's become clause 16 of the original proposal?---All right. Yes.

PN329.

Thank you, Mr Maclagan.

PN330.

No further questions.

PN331.

THE COMMISSIONER: Thank you very much.

PN332.

MR ANGELOPOULOS: No re-examination, your Honour.

PN333.

THE COMMISSIONER: Mr Maclagan, thank you very much for your involvement in these proceedings. You may now stand down.

<THE WITNESS WITHDREW [11.50 AM]

PN334.

THE COMMISSIONER: Mr Angelopoulos, that completes the witness evidence that you seek to rely upon?

PN335.

MR ANGELOPOULOS: Yes. I guess, we're not at the point where we've got closing submissions.

PN336.

THE COMMISSIONER: Yes. Would either of you like a break before we go to that stage of the proceedings or are you in a position to proceed now?

PN337.

MR GOME: If we could perhaps have half an hour, Commissioner.

PN338.

THE COMMISSIONER: Yes. I know we have had some - a track record in this matter. If we do have half an hour break, I take it there is going to be no difficulty concluding the matters today?

PN339.

MR GOME: No, Commissioner.

PN340.

THE COMMISSIONER: Mr Angelopoulos, would you agree with that situation?

PN341.

MR ANGELOPOULOS: Perhaps my past conduct should be wiped from the Commission's memory, collectively, that's fine. I must say, Commissioner, there will not be a lot in terms of final submissions.

PN342.

THE COMMISSIONER: I'm not trying to constrain anything you would want to say, just if I am generous now in granting a break, I just to make sure that we do still conclude the matter.

PN343.

MR ANGELOPOULOS: Commissioner, I must say that my closing submissions will be very brief because I don't intend to regurgitate my written submissions. They're quite detailed and I think they speak for themselves.

PN344.

THE COMMISSIONER: Okay. What we'll do, perhaps we'll take a break until 20 past 12. We might then continue perhaps till 1 o'clock, have a break from 1 till 2.15 and then proceed to conclude this afternoon if that times required.

PN345.

MR ANGELOPOULOS: Yes.

PN346.

THE COMMISSIONER: Does that sound a reasonable way to proceed?

PN347.

MR GOME: Thank you, Commissioner.

PN348.

THE COMMISSIONER: Okay. The matter's adjourned until 12.20.

SHORT ADJOURNMENT [11.52 AM]

RESUMED [12.24 AM]

PN349.

THE COMMISSIONER: Mr Gome?

PN350.

MR GOME: Thank you, Commissioner. The matter to be determined is the correct interpretation of the phrase "conducted during paid time". Our submission is that it has a plain and unambiguous meaning, to the effect that clause 16 training or training that falls within that, defined by that particular clause shall be paid at the rate as if the person had been working that time. Mr Maclagan had acknowledged that all loadings and penalties applicable to that day would be paid as if they have been worked. Where the parties depart is whether or not those hours that are paid in effect form part of the rostered hours and should be used in calculating overtime and we submit that they do.

PN351.

I won't take you through them now, Commissioner, but if I can direct your attention to my submissions in the original submissions at paragraphs 28 and 29. We say that "during" connotes a span, or denotes a span rather, and that the hours spent in training are to fall within the span of paid hours, otherwise the - which in effect is hours worked. So we say there's a period of time which is all paid hours and that paid training under clause 16 is a subset of that set or it sits along that spectrum, if you like.

PN352.

I'd also like you to pay particular attention to the written submissions in paragraph 29 of the submissions in reply where I deal with Excellior, and in particular 2(b) and (e). The task before you, Commissioner, is to interpret the words of the argument that the parties have used and the decision in Excellior is not relevant to determining whether or not the paid training hours fall within the rostered span.

PN353.

I just have a couple more submissions to make. I guess, in relation to the two attachments that - sorry - the two documents, being EK1 and DML1, that both Mr Maclagan and Ms Keogh were referred to. The first one, EK1, says "Security Union Proposals." The second one says, "A Discussion Paper". It's really neither here nor there, Commissioner, whether the wording in the second document, the discussion paper, was intended or was actually an alternate wording.

PN354.

THE COMMISSIONER: Mr Gome, is it fair to say though - I understand the point you're making, but in terms of your submission that the words have a plain and ordinary meaning, your principal submission is that I don't even need to go to that documentation. Is that correct?

PN355.

MR GOME: Yes, Commissioner. The relevant point is that's what was originally proposed and that's the wording that was agreed to at the end, and all the rest is horse-trading, as - - -

PN356.

THE COMMISSIONER: But what I'm really saying is that I only need to go to that documentation if I find that the wording in the current clause is ambiguous in the first place.

PN357.

MR GOME: No, Commissioner, not even then. I don't think it's relevant then.

PN358.

THE COMMISSIONER: Okay, yes.

PN359.

MR GOME: Just in terms of Mr Maclagan's evidence, our submission is his subjective understanding of the content of his discussions with Mr Redford is not something that you should pay regard to. It's not objective. There's no evidence of mutuality. None of the things he says were agreed to with Mr Redford happened in the official bargaining meetings. They were sort of conducted in and around but not actually part of the formal negotiation process. He hasn't been able to say when the agreement was reached. We've got a period from, from memory, September to November, where Mr Maclagan says he was meeting and having some private discussions or informal conversations with Mr Redford. But the respondent can't say when they say agreement was reached on that matter.

PN360.

We say in the meeting on 13 October, and it's there in Ms Keogh's statement, that's when the bargaining team, the union bargaining team, sat down opposite the Wilson team for the first time in face-to-face direct negotiations and said - anyway, it's there Commissioner, Tell us what you agree with and tell us what you don't.

PN361.

Just finally, Commissioner, I guess, in the event that you were to find that Mr Howarth did have an entitlement to be paid overtime, that’s plain, I propose that the respondent and the applicant be given a week after any such decision to try to come up with an agreed position on any order of payment to be made. I think you've got enough evidence to work out, in general terms, how the operation of the overtime was - how the calculation works. Just to assist further, we would accept the six and a half hours as being time spent in training.

PN362.

THE COMMISSIONER: Rather than the eight. The eight was first foreshadowed, but it actually only took six and a half, so you would only press, if I were to find in your favour - - -

PN363.

MR GOME: That's right, because Mr Howarth said there was an extended lunchbreak and it did finish earlier. So, your Honour, we're not going to be pushing 15 minutes here and there, either way. The only other thing, Commissioner - I know you're aware of it and mindful of it - negotiations for the new agreement are continuing. There's not any sort of imminent likelihood of an agreement being certified, is there?

PN364.

MR ANGELOPOULOS: Unlikely, Commissioner, because I understand the vote was not favourable just before Christmas; if I can put it so lightly.

PN365.

THE COMMISSIONER: What's the relevance of that in any case, Mr Gome?

PN366.

MR GOME: Because once a new agreement is certified, the Commission doesn't have jurisdiction to make orders under an expired agreement and we haven't been able to reach an agreement as yet on how the parties might respond to a decision, if it were made, when this agreement is no longer current. Thank you, Commissioner, that's all.

PN367.

THE COMMISSIONER: Thank you very much.

PN368.

MR ANGELOPOULOS: Commissioner, just on that latter point, certainly of course we don't want to press the Commissioner, that you must rush in making a decision. But if a decision is given, then certainly I think the parties should contact - I would expect the union to contact yourself, if the decision hasn't been handed down. So you'll do what is necessary, in terms of handing down the decision, but I don't want to do put it any higher than that.

PN369.

I'll go backwards. In terms of any agreement about - if you find in favour of the union, I guess, when the time arrives, Commissioner, we can look at that rather than making - and jumping to sort of an outcome that might - may or may not occur.

PN370.

Commissioner, there's a couple of things that I just want to address. The first thing is, one of the difficulties - the question is the principle. The principle is, what is meant by "during paid time at no cost to the employee". I'm not going to go through my submissions in detail, but I actually have extracted quite a lot of detail of the Excellior decision. Mr Gome simply says the Excellior decision is not relevant. The reason he says the Excellior decision is not relevant in his submissions are as follows: he says because it deals with a different type of instrument, that being an award as opposed to this being an agreement.

PN371.

I said in my opening the fact is that although the principles have changed since Golden Cockerel, in terms of constructing an agreement there, there has not been a substantive turnaround in the way that you construct agreements compared to awards because what you're really always looking to do - and if you go back to the Golden Cockerel decision it says actually at paragraph 30:

Regard may therefore be had to the evidence surrounding the circumstances before the existence of ambiguity in an agreement is identified as an aid to interpreting the agreement.

So the surrounding circumstances.

PN372.

Other than the union having presented a fact that a paid training union clause had been agreed to, they actually have really gone no further than that. They have not presented any evidence other than what they say is a construction of the clause as what the clause meant. They have presented no evidence as to what the union said at that time, when the agreement was being negotiated, as to what the clause meant. The only person that could give evidence as to what that actually meant, we say, is Mr Ben Redford. The fact that the discussions happened between Mr Maclagan and Mr Redford outside of the formal bargaining process doesn't mean you can just disregard them. It doesn't mean that everyone has to be involved in every single bargaining meeting. It is obvious that the two lead negotiators had decided that they would meet themselves, and Mr Maclagan has presented evidence as to what was understood between them. They understood between them that they would be paid at the rate the day that they are working but it would not necessarily - that they would be added to the rostered hours of work, which is what is critical in the union's case.

PN373.

It's not that Mr Redford hasn't presented the evidence. What we have is, it's his evidence was critical. If Mr Redford's evidence of what was agreed was different, then you would expect him to be here. The fact that he isn't here, the Commission can and should draw an adverse inference that Mr Maclagan's explanation of events is an accurate statement of facts and reflects an agreement between the two lead negotiators. The fact that it was, I think, 13 October he said where agreement was reached in the bargaining meeting that a paid training clause would be one of the matters in agreement means nothing more than that.

PN374.

That document EK3, which shows the outcome of the parties’ position, indicates nothing more than there was an agreement that there would be paid training. It doesn't say anywhere, “And by the way, this means X, Y and Z”. There's nothing in any of the 13 October meeting or EK3 to show that other than the fact that there was agreement that a paid training clause would operate and that was in the context of what Mr Maclagan and Mr Redford understood and knew of how it operated. The fact that that wasn't then passed on to every member of the bargaining committee, Commissioner, is neither here nor there because they're the lead negotiators. If Mr Redford doesn't choose to disclose that to his own union, you know, the bargain with - that's a matter for him. It's not something that Wilson or anyone else can be penalised for; that was his and his sole decision.

PN375.

Might I return, what the Full Bench of the Commission does say that in construing enterprise agreements and awards, that even though the principles in Wanneroo v Cux(?),we're saying that that's not, strictly speaking, relevant, they do still say at paragraph 30 that the Wanneroo principle is relevant. That basically meant, and it goes back a paragraph to 22, and that is what you look into, is to try and find the plain meaning of the words.

PN376.

If you look at the plain meaning of the words, Commissioner - I'm not going to go through analysis, but they are a pretty unique set of words. They don't use the words, "hours of work". It talks of "during paid time". Every other clause in the agreement which refers to overtime is about hours of work; that is, overtime is payable on hours of work. If you actually look at Excellior, it does say in the decision, well, in that clause and in that award, the clause could have said, in the training clause, shall be treated as hours of work. In fact in Excellior it goes a lot further. The decision in that case or the clause in the award goes a lot further than what the clause goes here and there is a type of deeming provision to deem training as falling within work. Even then the court, on that particular issue of allowances, said that doesn't go far enough.

PN377.

I must say, Commissioner, the fact that that document concerned an award as opposed to an agreement we say is neither nor there because it still is basically that - the plain language. The fact that it's about an allowance or an entitlement, whether it exists or not, as opposed to whether it's overtime we say again is neither here nor there. Because what it is, it's about the principles establish in that case. It's not about the facts necessarily but the principles.

PN378.

If you look, Commissioner, simply at my submission at paragraph 22, at the very top what you'll see is what I've done, I've done sort an add and cross, so I've taken paragraph 18 from the Excellior decision and I've substituted the words of the facts here, being "overtime" from "allowance", and it's still the same question as opposed to award - agreement that needs to be interpreted. Commissioner, Excellior is not a decision which stands alone. If you read Excellior, it is in the context of previous Federal Court and Full Court decisions about the training and work distinction.

PN379.

MR GOME: Sorry, Commissioner. I would just like to ask what my friend is trying to achieve by striking out what actually appears in the decision and in inserting facts from this case.

PN380.

MR ANGELOPOULOS: Your Honour, just to show that it's the same - effectively the same question being determined. That's what it is, it's effectively the same question being determined.

PN381.

MR GOME: I'm not sure that I agree with that, but I'll allow - - -

PN382.

MR ANGELOPOULOS: You can make submissions in reply, certainly.

PN383.

As I say, in paragraph 22, like the clause in that says is, "training is to be regarded as time worked". I mean, this is the issue, in clause E.6.3 of the award clause in Excellior there was - training was to be regarded as time worked. Actually, they were the words. Here we have "during paid time". We don't have "time worked". What we say, Commissioner, is that that shows a clear statement of the parties; that it's not to be treated as time worked and added to the roster because if it was, there would have been something along those lines in a clause. As I also say in my submissions, the clause on training is quite - is in a very separate part of the agreement to the other clauses which concern overtime and rates of pay.

PN384.

I note that Mr Gome refers to, in the context of ordinary rate of pay, some clauses in the current agreement but I don't know whether they take us any further. Assume that what he wants to address is that Mr Maclagan's said, Well, it's ordinary time rate of pay. If you look at those, the extracts there, they're divergent. One says you include all of these and the other thing says you would include none of these. How does that take us any further? The second issue is that that is about the construction of that clause and when Mr Maclagan was giving his evidence he talked about it being ordinary pay, as he understood it and as Mr Redford understood it, and he explained what that meant. So you can't then jump and say, Okay, even if we have two very inconsistent clauses you just should apply the language in one clause about redundancy and give it the same characteristics about training.

PN385.

The other matter, Commissioner, that you should be aware is, as you have seen, that what effectively the union has done is attempt to respond to evidence by way of submissions. When we first received the submissions of the union, my original inclination was to actually not respond to anything because they were all submissions on the issues about the construction about matters where they actually tried to find evidence in those submissions. But I chose - we chose not to do so because we thought the Commissioner should have the opportunity to actually hear our case, to effectively run a no case to answer. But we actually responded and put in - and what we then get is, again in reply, further evidence by way of submissions. For example, Mr Maclagan's mistake.

PN386.

You cannot put by way of submissions evidence. What you should be doing is actually identifying the evidence and drawing conclusions and the authorities and the law, but not in itself put evidence. That should have been in somebody's witness statement. So to the extent that the submission seeks to actually provide evidence the Commission should disregard that.

PN387.

One other matter, Commissioner, that you should be aware of is that I note that - and I'm not sure - that the union seems to seek that the Commission should draw an inference from the fact that the agreement, as it was put up at the time, was voted down which had a different word or different wording which was the employer's wording. The first thing, as is noted even by Mr Gome in his - sorry - not by Mr Gome but in the union's submissions, is that was about an agreement which did not apply to Mr Howarth at all. That was about the Victorian Government site. That's the first thing.

PN388.

Even if it could be said that it has some relevance, what would be needed is for the union to bring along every person who voted in that room and say, One of the reasons I actually voted this down was because I didn't like the employer's training clause because I thought it was going to give me less or I wasn't going to get these benefits so we've got from the union's clause. You can't just draw inferences on that basis, you need that evidence.

PN389.

We say, Commissioner, that you simply cannot give short shrift to decision of Excellior as alleged by the union. We say that it stands; it's about the principles, it's not about the facts, and the principles are equally applicable here. The fact that Golden Cockerel has changed some of the formulation doesn't mean you throw out the baby with the bathwater, and that's effectively what the union is asking us to do now or asking you to do. It's not about facts, it's about principles. It's effectively asking the Commission to basically disregard a Federal Court decision on the same principles/issues when that - when those principles have actually been applied over a number of years by other Federal Courts and other tribunals where that distinction, being been work and training, has always been considered. The next question to be considered is, well, does the award clause change that?

PN390.

We say, again, that "during paid time" is not a type of deeming provision. Because what you would actually have to do, Commissioner, is you would actually have to fundamentally rewrite the clause. It's not simply about interpreting the clause to say "during paid time" is equal to "rostered hours of work", you would actually have to rewrite the clause. Because there's no similarity in the two words, in the two phrases not the words, in the two phrases. It's not the job of the Commission to rewrite the - - -

PN391.

THE COMMISSIONER: The two phrases being?

PN392.

MR ANGELOPOULOS: "During paid time at no cost" is equal to "rostered hours of work". There may be some tinkering that needs to happen but I'm just - to make sure because it may not read correctly, but that there has to be a substitution of not - it's the concept, so you would actually have to put words in there to reflect that concept. Remember, what we're talking about is the concept not the words and you would actually have to rewrite it to do so.

PN393.

THE COMMISSIONER: There are all sorts of words that we could obviously think about and that might have been included. For example, it might have said "shall be treated as paid time". I accept what you say about the distinction between work and training but I mean it could have said "shall be treated as paid time" indicating that training, whilst separate, was still going to be paid. But here it does say "during paid time" which seems to indicate that that is when - it's during time that is part of an employee's ordinary working hours.

PN394.

MR ANGELOPOULOS: Commissioner, I disagree. All it's simply seeking to do is to provide that there's going to be a payment. Again, you must remember you must look at that in the context of what went before. There was zero before. There was zero before, there was no entitlement to payment when training was being conducted. "During paid time", we say, is not during the ordinary hours of work; it's that they must be paid during that time and at no cost. Because if it was - if there was an attempt to actually make it work there would have been references to work or hours of work.

PN395.

As I said, Commissioner, early on, it's a pretty unique clause. The words "paid time" appears elsewhere but not "during paid time", and they're all in my submissions. The fact that someone actually is engaging in training during paid time simply means that they are being paid for time. Remember, Commissioner, these are not formal legal documents. You don't expect them to have the finesse of - and sometimes it actually makes it more difficult, of legislation and the authorities of - even though Golden Cockerel has changed the formulation, they're saying, well, you don't actually start from a principle, you look at in the industrial context and what parties intended.

PN396.

This is the issue, Commissioner, you can't just look at the words, "during paid time" in isolation. You must look at it in the context of the whole clause, where the clause sits in the agreement and the background to the agreement. This is what Golden Cockerel says, you can look at the background. The background is that there was nothing there previously. For the time people agreed to have paid training and the two lead negotiators understood what that was going to mean. The fact that you might say it's a little bit clumsy in its wording does not mean that you should actually construe it in a way that it gives a benefit that was never intended, because the two lead negotiators never intended it that way and that's been made quite clear.

PN397.

Just by way of summary, Commissioner, if you look at the decision of Golden Cockerel you do - although you look at the issue of ambiguity, whether or not there's an ambiguity - and we make detailed submissions on whether or not there is an ambiguity or not - it does say, in determining that issue, you can look at - regard to the surrounding circumstances. It may seem that there's actually effectively a doubling-up in some ways because "surrounding circumstances" may or may not overlap with the objective views of parties. But the surrounding circumstances are quite clearly that this is the first time a clause of this nature ever appeared, when there was a zero entitlement previously. It’s not about a further development of an existing entitlement, a move away - for example, if there was a clause that operated and then there was this - you may remember that there might be a different construction which we say is not - would not necessarily take it far enough, in any event. Because what you would need is, you would need at least some type of a deeming provision, if you didn't actually say it is - there are one or two things you could have done it.

PN398.

You could have actually said to basically - for the union's case to be successful, all training hours are to be added to the rostered hours of work. There would never be a dispute. The other way is to say, all our - all training shall be deemed as being work time, or words to that effect, but it doesn't do that. Again, as I said earlier on, Commissioner, you must look at the fact that the word "work" appears throughout the document where there are entitlements to matters such as overtime. It is a clearly a stain on of the parties not to have it in there. There has been no evidence presented by the union that this is - at the time when it was being negotiated that this was the intention. It is just on the construction of the wording today.

PN399.

They're my submissions, Commissioner.

PN400.

THE COMMISSIONER: Thank you very much, Mr Angelopoulos. Mr Gome, anything further?

PN401.

MR GOME: We can be done in five minutes, Commissioner.

PN402.

THE COMMISSIONER: No, you take your time.

PN403.

MR GOME: Both the respondent and the applicant say that the words have a plain meaning and both draw different conclusion. We say "during paid time" means that it falls within the span of hours that are paid. We say, further to that, you don't need to insert any other meaning or any other understanding; that you can just read those words on face value. We don't have any evidence that there was an agreement between the lead negotiators, either in or out of the formal bargaining meetings. We've got a span between September and November where it might have occurred; Mr Maclagan couldn't say when it occurred, and the evidence of Ms Keogh that in the meeting on 13 October that was the date and time that the union knew that agreement had been reached wasn't - nothing was put to her to reject that interpretation. So what we have from Mr Maclagan is, at some point between September and even after the date of the meeting where we say agreement was reached, Mr Redford and I may have come to some agreement.

PN404.

MR ANGELOPOULOS: Sorry. I object to that because he never said "may have", he actually said they did, he did.

PN405.

MR GOME: Okay, point taken. We don't have dates, we don't have times, we don't have anything recorded. My friend asked Ms Keogh to provide all the notes that she had provided or made a bit of an issue about a general statement at the top of her evidence that she had been involved in the negotiations and her role in it. But Mr Maclagan doesn't have that kind of material, Commissioner.

PN406.

I would also like to return to paragraph 22 of the respondent's submission and, again, just - okay. At the top of page 7 we have the representative of the respondent striking out what actually appears in the decision and inserting the facts of this particular case. That's extraordinary, Commissioner. That's shoehorning a particular decision made by a court or, sorry, rather shoehorning the facts of this dispute into a decision of a court and saying therefore it applies in this case. That's at least a two-step process and I don't see that that gets us any further, Commissioner.

PN407.

THE COMMISSIONER: For what it's worth, Mr Gome and Mr Angelopoulos, I don't at this stage quite understand what was sought to be achieved by those submissions. But I'm not by any means being critical of Mr Angelopoulos in saying that. I do need to take some further time to give some thought to them. But I do understand also the point you make, Mr Gome.

PN408.

MR GOME: Commissioner, equally Mr Angelopoulos has outlined a range of alternative phrases that the parties could have agree on to make sure that the terms of the agreement were not the subject of a dispute. Equally, the parties could have made arrangements for training to be paid as an allowance. It could have been put into a different part of the agreement. They haven't done that. They've said "paid time". Mr Maclagan has said that even on the revised wording of "ordinary time" as opposed to "ordinary time rate of pay", which were put on notice and prepared submissions in relation to, that that included penalties and loadings that would normally fall as if those hours had been worked.

PN409.

THE COMMISSIONER: Only as they relate to the particular day.

PN410.

MR GOME: Yes, that's right. Again, I just think whatever discussions Mr Maclagan and Mr Redford had, I don't think they get you very far, Commissioner, and that their - if there's no notes, if there's no recording, if there's no sort of event that we'd put on notice about that happened on a particular day or particular time, then Mr Redford's not required to give evidence on that point.

PN411.

THE COMMISSIONER: So the significance of that evidence by Mr Maclagan that "during paid time" is interpreted as if - for example, if it's a Saturday then it's paid at whatever the Saturday rate is, time and half or whatever, I take it, it follows, in your submission, that therefore if it's overtime it's paid at the overtime rate and on the same basis.

PN412.

MR GOME: It's not as simple as that, Commissioner, because as we've seen there's a formula or there's a process for determining overtime.

PN413.

THE COMMISSIONER: I understand that, yes.

PN414.

MR GOME: Yes.

PN415.

THE COMMISSIONER: Yes, okay.

PN416.

MR GOME: Thank you, Commissioner, that's all.

PN417.

THE COMMISSIONER: Thank you, Mr Gome, and thank you, Mr Angelopoulos, for the submissions and evidence you've both provided in this matter. As I've indicated I'm going to take some further time to give some consideration to the submissions and evidence that have been provided. I understand the issues to do with the negotiation of the new agreement and I'll be mindful of that. But at this stage I do intend to reserve my decision and until I've made a decision and it's handed down the matter is adjourned.

ADJOURNED INDEFINITELY [1.01 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ERIN ELIZABETH KEOGH, AFFIRMED [10.42 AM]...................................... PN100

EXAMINATION-IN-CHIEF BY MR GOME [10.42 AM].................................. PN100

CROSS-EXAMINATION BY MR ANGELOPOULOS [10.46 AM].................. PN115

RE-EXAMINATION BY MR GOME [10.59 AM]............................................... PN155

THE WITNESS WITHDREW [11.00 AM]............................................................ PN167

PAUL HOWARTH, SWORN [11.01 AM]............................................................ PN170

EXAMINATION-IN-CHIEF BY MR GOME [11.01 AM].................................... PN70

THE WITNESS WITHDREW [11.04 AM]............................................................ PN186

DEAN McGRATH, SWORN [11.06 AM]............................................................. PN189

EXAMINATION-IN-CHIEF BY MR ANGELOPOULOS [11.06 AM]............. PN189

CROSS-EXAMINATION BY MR GOME [11.07 AM]....................................... PN212

THE WITNESS WITHDREW [11.19 AM]............................................................ PN237

DAVID JAMES MACLAGAN, SWORN [11.30 AM]......................................... PN242

EXAMINATION-IN-CHIEF BY MR ANGELOPOULOS [11.30 AM]............. PN242

CROSS-EXAMINATION BY MR GOME [11.45 AM]....................................... PN310

THE WITNESS WITHDREW [11.50 AM]............................................................ PN333

UV-1 - STATEMENT OF ERIN ELIZABETH KEOGH DATED 07/01/2014 WITH THREE ATTACHMENTS EK1, EK2, EK3................................................................................................... PN117

UV-2 - STATEMENT OF PAUL HOWARTH DATED 05/12/2014, WITH TWO ATTACHMENTS PN177

WS-1 - STATEMENT OF DEAN MCGRATH DATED 23/12/2014, WITH ATTACHED EXHIBITS PN198

WS-2 - STATEMENT OF DAVID JAMES MACLAGAN DATED 23/12/2014 WITH ATTACHMENTS DMG1, DMG2 AND DMG3........................................................................................... PN251

WS-3 - STATUTORY DECLARATION............................................................... PN293

Fair Work Commission Transcripts

C2014/343, Transcript of Proceedings [2015] FWCTrans 79 (2 March 2015)