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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051201-1
COMMISSIONER ROE
C2014/6410
s.120 - Application to vary redundancy pay for other employment or incapacity to pay
Application by Serco Sodexo Defence Services Pty Ltd (SSDS)
(C2014/6410)
Serco Sodexo Defence Services Pty Ltd National Range Services Enterprise Agreement 2010
(ODN AG2010/9011)
[AE878080 Print PR997495]]
Sydney
9.42 AM, THURSDAY, 18 DECEMBER 2014
Continued from 17/12/2014
PN1377
MR BULL: I apologise for being late, Commissioner.
PN1378
THE COMMISSIONER: That’s fine.
PN1379
MR BULL: I had an inquiry about whether Santa Claus is within the constitutional coverage of the union by the post officer, so I had to deal with that matter as a matter of urgency.
PN1380
THE COMMISSIONER: All right. So we’ve got Mr Gollan on line.
<GRAHAM GOLLAN, AFFIRMED [9.42AM]
NATION-IN-CHIEF BY MR SNOWBALL [9.44AM]
MR SNOWBALL: Mr Gollan, can you hear me okay?---Yes, I can.
PN1382
I’ll just start by asking you a few questions, Mr Gollan. Your name is Graham Gollan?---Yes, it is.
PN1383
You have prepared a statement for these proceedings?---Yes.
PN1384
Do you have a copy of that statement in front of you?---I do.
PN1385
Is it 26 paragraphs in length?---It is.
PN1386
Are the contents of that statement true and correct?---Yes, they are.
PN1387
Commissioner, I seek to tender that statement.
EXHIBIT #NUW14 WITNESS STATEMENT OF GRAHAM GOLLAN
MR SNOWBALL: Mr Gollan, if I can first take you to point 21 of your statement?---Yes.
PN1389
In this paragraph you essentially say that much of the information provided by SSBS was not of much use to you?---Yes.
PN1390
Can you provide the Commission with some more information about that?
---Certainly. I found that the information was repetitive, that the information seemed to be partly going (indistinct) in issues
that were said to be new. The information was fairly conclusive, they went so far as to say if you attend the job interview make
sure you iron your shirt and wear deodorant. I found the information to be passive in the sense that it was just thrown at the staff,
there was no requirement for us to make any input or interaction. On occasion it was non-specific to me personally because it was
partly general, the information was relating to (indistinct) on occasion rather than myself at Shoalwater Bay. The information was
unusual, there was physical documentation that was sent to us that had links on it saying, “Please click here to access further
information,” whereas it was printed documentation, not a live link on a computer. Thank you.
**** GRAHAM GOLLAN XN MR SNOWBALL
PN1391
Mr Gollan, do you have a copy of Astrid Leibrandt’s witness statement in reply in front of you?---Yes, I do.
PN1392
Can I take you to point 20 of that statement?---Yes.
PN1393
You will see here Ms Leibrandt references an attachment which are a number of emails that have passed through your SSDS email account?---Absolutely, yes.
PN1394
Are there any comments that you wish to make about that?---Yes, I quickly looked at them. I suppose the first thing I’ll point out is that those emails started in August, whereas SSBS were aware they lost the contract on 15 January, also (indistinct) the new contractor some time in June I believe it was, I’ll start there I think, thank you.
PN1395
I have no further questions.
PN1396
THE COMMISSIONER: Thank you. Anything further, Mr Bull?
PN1397
MR BULL: I have no questions of this witness.
PN1398
MR COMMISSIONER: Mr Saunders.
<CROSS-EXAMINATION BY MR SAUNDERS [9.47AM]
MR SAUNDERS: Mr Gollan, you have just told the Commission that SSDS was aware on 15 January that it had lost the contract, that’s
what you’ve said isn’t it?
---Yes.
PN1400
On what basis do you make that assertion?---From my own memory being told on 15 January that they lost the contract and it would be
(indistinct).
**** GRAHAM GOLLAN XXN MR SAUNDERS
PN1401
Serco didn’t tell you who the new contractor was going to be until about mid-2014, about July, that’s right isn’t it?---Yes, it was mid-2014, I couldn’t tell you exactly when.
PN1402
July or August sound about right?---I thought it was a bit earlier but yes, I won’t disagree with that.
PN1403
You were aware from what you’ve been told and what you’ve read that the reason Serco told you about the new contractor coming on board at that time is because that’s when Defence announced it, that’s right isn’t it?---Yes.
PN1404
So you couldn’t be critical of Serco for not providing you with information in the early part of 2014 about who the new contractor was going to be when it didn’t know?---No, I’m not critical of not being allowed to release information they weren’t allowed to release.
PN1405
You have a copy of Ms Leibbrandt’s statement in reply in front of you, could you please turn to what is referred to as AL63, they are attachments to Ms Lebbrandt’s statement?---Absolutely, yes.
PN1406
The first document at AL63 is an email from Natasha Neil dated 11 August 2014 to a number of recipients, including you, do you see that?---Yes, I am a recipient, yes.
PN1407
You had an SSDS email address in your role as a supervisor, didn’t you?---I certainly did.
PN1408
You had that email address for how long?---Certainly a couple of years, yes.
PN1409
A couple of years before your employment came to an end, is that right?---Yes.
**** GRAHAM GOLLAN XXN MR SAUNDERS
PN1410
You received emails at that email address from time to time didn’t you?---Yes.
PN1411
You sent emails from that email address from time to time in that two year period, correct?---Yes.
PN1412
During late 2013 and throughout 2014 you received a number of emails to that email address about the loss of contracts by Serco Sodexo and the transition to new contractors, that’s right isn’t it?---Yes.
PN1413
You read those emails that you received when you were at work, didn’t you?
---Yes.
PN1414
You had access to a work computer to be able to read those emails at work and send emails at work, didn’t you?---Yes.
PN1415
Just looking at the first document in AL63, if you look at the second page of it in the first paragraph it says, “Good morning, in our ongoing efforts to facilitate suitable alternative employment please find attached correspondence from Spotless Services. Please print and cascade this information to all team members.” Did you do that to your team members?---Absolutely.
PN1416
Every time you received an email of this kind asking you to print and cascade information to your team members you did so, didn’t you?---Yes, I did.
PN1417
How many members were in your team?---There were four to begin with and ended up being two as people left.
PN1418
You see in the second paragraph it says, “It is important to ensure every team member is provided with computer access as roles
are advertised with Spotless Services. Key supervisors have been provided with a generic log in and password to further support
employee applicants.” You ensured that every member of your team had access to a computer if they needed it, didn’t
you?---Yes.
**** GRAHAM GOLLAN XXN MR SAUNDERS
PN1419
That access that your team members had to a computer at work enabled them to access the Spotless Services website, that’s right isn’t it?---Yes.
PN1420
You see in the next paragraph it says, “The Spotless Services website,” and it has a link to it there, you were able to by accessing this email to click on that link and go straight to the website, weren’t you?---Yes.
PN1421
If any of your team wanted to come to you having received a printed copy of this email and click on that link you could enable them to do so by providing them with access to the email, couldn’t you?---Yes.
PN1422
That’s what you did from time to time, didn’t you, when you were requested to do so by employees?---Yes.
PN1423
You see in the following paragraph it says, “Spotless Services will be holding information sessions in the near future. We ask you and your team to stay informed by joining YAMMA.” Did you join YAMMA?---Yes, I did.
PN1424
What about your team, did you encourage any of them to join YAMMA?---It was offered to everyone, several of them did but not everyone.
PN1425
Some of those who did is it fair to say that they did not have a SSDS email address before they joined YAMMA?---No, everyone had a SSDS email address before YAMMA.
PN1426
Everybody in your team had a SSDS address before they joined YAMMA, is that right?---That’s correct, yes.
PN1427
So when you received emails of this kind I’ve been asking you about you would forward on by email these emails to the members
in your team by sending the email to their SSDS email address, is that right?---If they haven’t already received it I did,
yes.
**** GRAHAM GOLLAN XXN MR SAUNDERS
PN1428
As well as that you’ve printed out hard copies of the email and the attachments and handed it round to your team members, is that right?---Yes, not all the time, sometimes the manager did that as well.
PN1429
Given that your team members had access to an SSDS email address I take it they had access to computers at work to check those emails?---Yes.
PN1430
Do you know if that was the case for other members of other teams, not just your team, having SSDS email addresses and access to computers?---I can’t answer for anyone else I’m afraid, I’m at a remote location so I can only answer for the (indistinct) people out there.
PN1431
You will see in the next paragraph it says, “Preparation is very important at this time, so please encourage your team members to review, write and update their resumes. Resume writing information can be found at,” and there is a link to it. You read that when you received the email, didn’t you?---I Holmestly can’t recall but if there was a link there I would have looked at it, certainly.
PN1432
You would also have encouraged your team members to review, write and update their resumes, correct?---I would have done and I have already done by this point.
PN1433
THE COMMISSIONER: You had already done your resume by this point, is that what you’re saying?---Yes, I had updated my resume sometime early June and most of the – well I believe all but I can only state most of the other staff had already prepared their resumes by that point and got them all updated early June. The reason we did that is we knew that the contract and we did have to start applying for jobs so we’d already done that, the majority had moved ahead on that.
PN1434
MR SAUNDERS: You became aware that Serco Sodexo offered resume writing workshops for employees, that’s right isn’t it?---Yes,
I was aware of that.
**** GRAHAM GOLLAN XXN MR SAUNDERS
PN1435
Did you or any of your team members to your knowledge attend such a workshop?---No.
PN1436
You will see in the next sentence of the email it says, “The people support centre is available to help you with support, documentation and transition support,” and they can be reached on a particular number or through the people support group on YAMMA. Did you ever have need to contact the people support centre?---No.
PN1437
No doubt you told your team members that there was a people support centre they could contact to help them with support documentation and transition support, is that right?---Yes.
PN1438
Do you know if any of your team members contacted the people support centre?
---They did not.
PN1439
If you can then pass over the next page and turn over you’ll see an email dated 22 August 2014 to you from Gavin Hearn, do you see that?---Yes, here it is.
PN1440
You will see about half way down that page in italics there are these words, “Important information for NQ staff, incoming contractor
Spotless will be holding information sessions shortly in Townsville and Cairns. These sessions are very informative and important
for all staff so spread the word among your colleagues these sessions are being held as part of our efforts to facilitate ongoing
employment for our employees.” Did you spread the word among your colleagues that it was important for them to attend these
information sessions?
---The conversation was how do we get to them and will they be holding one for us in Rockhampton or Shoalwater Bay, not about how
we’re going to travel to Townsville or Cairns to attend these sessions, so that’s what our focus was on.
PN1441
**** GRAHAM GOLLAN XXN MR SAUNDERS
There was one held in Rockhampton was there?---Yes, there was.
PN1442
Did you attend it?---Yes, I did.
PN1443
Where was it held, was it on the Defence base?---Yes, on Rockhampton CSRT base.
PN1444
This was an information session where someone from Spotless presented, is that right?---Yes.
PN1445
Which month was this do you recall?---I Holmestly can’t, no.
PN1446
Was there somebody - - - ?---September. September perhaps, no I’m guessing. It was before October.
PN1447
So after this email of 22 August but before October, is that right?---Yes.
PN1448
Your team members attended this information session did they?---Some (indistinct) attended.
PN1449
Was the information session held during work hours?---Yes.
PN1450
You and your team were paid to attend the session?---Yes.
PN1451
How long did it go for?---Half hour to 45 minutes.
PN1452
At that session the person from Spotless provided information to you and the other people at the meeting about Spotless as a company and how to apply for a job with Spotless, that’s right isn’t it?---Yes.
PN1453
**** GRAHAM GOLLAN XXN MR SAUNDERS
Were you told at that meeting that Spotless had made a commitment to interview every Serco Sodexo employee who wanted a job with Spotless?---Yes,
they had already said every Serco Sodexo employee who applied for a job they would interview.
PN1454
By this time – by the time you attended this meeting you had already submitted an expression of interest, is that right?---I had already submitted an expression of interest, yes.
PN1455
Apart from this information session with Spotless, did you attend a consultation session run by Serco Sodexo?---No.
PN1456
You are aware that consultation sessions were being run by Serco Sodexo about changes taking place in the workplace including loss of the contracts and new contractors, that’s right isn’t it?---I’m aware they were taking place, but I did not attend one.
PN1457
If you turn over two more pages you will see an email from Tina Bass dated 30 September 2014 to you and others?---Yes.
PN1458
It says, “Hi all, Spotless have indicated that interviews will be held in Rockhampton next Tuesday 7 October.”?---Yes.
PN1459
Is this the first time you were told that an interview would be conducted in Rockhampton on that date 7 October 2014?---Yes.
PN1460
You attended that interview?---Yes.
PN1461
Did other members of your team attend as well?---Yes.
PN1462
**** GRAHAM GOLLAN XXN MR SAUNDERS
That was during work time wasn’t it?---Yes.
PN1463
How long did the interview take?---Approximately one hour.
PN1464
You were paid for attending that interview weren’t you?---Yes.
PN1465
Was it a group interview in the sense that a number of people being interviewed at the same time?---It was.
PN1466
How many people were there at the one time?---Nine people.
PN1467
If you could then look at the next document in the bundle, it’s an email from you dated 12 September 2014, do you see that?---Yes, I do.
PN1468
That’s where you say, “Good afternoon Susan,” and you’re sending an email to Susan from Spotless, that’s right isn’t it?---It is.
PN1469
You say, “I’ve just completed the online application process for position 525132 range operator caretaker and I’m interested in all positions open at Shoalwater Bay Training Area.” Given that you’ve just completed this online application before you sent it and you sent the email at 11.56 a.m. is it fair to say that you completed the online application that morning?---No, I believe I completed my application at home, it was just after talking to other staff members that it was clear what position the positon range operator caretaker I was applying for so I thought it necessary to clarify that I wasn’t just after a range operator position but I was interested in all positions available on site.
PN1470
What time did you start work on that day do you recall?---It would have been 7.30.
PN1471
Isn’t it the case that sometime between 7.30 and when you sent this email at 11.56 a.m. that was when you completed the online
application?---No, I believe I completed the online application at home.
**** GRAHAM GOLLAN XXN MR SAUNDERS
PN1472
When?---The night before.
PN1473
Was that the first time you prepared the online application?---I previously completed an expression of interest and when the expression of interest transferred it over from Seek to Spotless and I just had to confirm the transfer of information from expression of interest to application, so I just went on and was basically tick and (indistinct) a couple of boxes and confirmed that I was still interested, so it was a very quick and smooth process.
PN1474
If you did it the night before why did you wait until 11.56 a.m. the following day to send the email you sent?---Because I would have been working, 11.56 being 12 o’clock would have been my lunchtime. I would have made myself send that email during my own lunchtime I would imagine, that’s how I would have done it.
PN1475
What time do you say you took lunch, 11.56 do you?---Yes, we were taking half an hour to an hour lunch during the middle of the day.
PN1476
If you go over to the next page you’ll see an email from Tina Bass dated 3 October 2014 to David Gollan, you and others, do you see that?---Yes.
PN1477
That says, “Please find attached additional information on the interviews for next week with Spotless. I will forward any other information as it comes to hand. Please pass onto any staff with that email.” You passed on that information to your team members, didn’t you?---Yes.
PN1478
You read the information in the email and the attachment, didn’t you?---Yes.
PN1479
If you skip over the next page but go to the following one at the top you’ll see it’s an email from Amanda Booth to you
dated 16 October 2014?---Yes. Scrolling down one moment, yes.
**** GRAHAM GOLLAN XXN MR SAUNDERS
PN1480
At the foot of the page in the second paragraph it says, “Please circulate and distribute this document to staff in North Queensland.” Did you do that, did you distribute this to your team members?---Yes.
PN1481
Then pass over the next page please and go to the following one, it’s an email from Tina Bass to you and others dated 23 July 2014?---23 July, there it is, yes.
PN1482
It refers in the first paragraph to a teleconference and cascading attached information down to all staff. Did you provide this information to all the members of your team?---No, I believe the manager did.
PN1483
Sorry, you believe someone else did?---I believe the manager, my immediate superior, this was sent directly to him so he would have passed this on.
PN1484
To your team members?---Yes.
PN1485
As well as receiving emails of this kind that I’ve been asking you about there are also documents put up on noticeboards and meeting tables around the work site, weren’t there?---On the noticeboard, yes.
PN1486
There was a noticeboard in your workplace was there?---There is, there was.
PN1487
There was information put up there on a regular basis about transitioning out of the contract and opportunities for employees with the new contractors, that’s right isn’t it?---Yes.
PN1488
As well as documents on the noticeboard were documents also left around in the meeting or lunch room or other area in the workplace
for employees to take if they wanted copies?---These copies would have been placed into the (indistinct) folder that everyone had
access to every morning and afternoon, throughout the day (indistinct).
**** GRAHAM GOLLAN XXN MR SAUNDERS
PN1489
Sorry you said there was a folder, is that right?---Yes.
PN1490
Where was the folder located?---On the outside of the manager’s office next door to the lunch area, yes in the area that we assembled every morning and every afternoon.
PN1491
All of the notices – copies of the notices were put in the folder for people to look at and take copies of if they wanted, is that right?---That’s right.
PN1492
Sorry, if you’ll just bear with me a second. That’s the cross-examination, Commissioner.
<RE-EXAMINATION BY MR SNOWBALL [10.10AM]
MR SNOWBALL: Mr Gollan, you gave evidence that you submitted an expression of interest to Spotless, do you recall that?---Yes.
PN1494
Can you recall when you submitted that expression of interest to Spotless?---I’m afraid I can’t but it was very early, certainly June or even earlier but quite early. I didn’t (indistinct) place and times I did things.
PN1495
You gave evidence that you became aware in January 2014 that Serco Sodexo had lost their contract with the Department of Defence, do you recall that?---Yes.
PN1496
How did you become aware in January that SSDS had lost their contract?---From one of the other staff members who was talking to other employees in other work sites, he was told that and the information was confirmed later that day from the (indistinct) services manager (indistinct).
PN1497
**** GRAHAM GOLLAN RXN MR SNOWBALL
Sorry, that was Tina was it?---Yes.
PN1498
You said before that you gave all team members in your team access to a computer throughout the transition period, do you recall that?---I did say that, yes.
PN1499
Would they normally have access to a computer as part of their normal duties?
---Yes, they could always gain access to the computer but on occasion they may have to work remotely and they may not have that sort
of access to a computer over several days, they may (indistinct) working in the same area via a remote scope and leave (indistinct)
and you may not see them at the office for several days at a time.
PN1500
You said before that all members of your team had an SSDS email address?
---Yes.
PN1501
Did they have these email addresses before the transition period started?---Yes. Yes, they did, everyone had their email addresses before transition period started.
PN1502
Mr Saunders asked you some questions about how you were advised that Spotless was conducting interviews and you gave an answer that you found out through an email from Tina, do you recall that?---Yes.
PN1503
Did Spotless also advise you that they were conducting interviews?---Yes, I got a – it wasn’t specific about time and place but it was information put on the Spotless job application website and I was sent an email that I’d been successful in achieving an interview and the interview would be conducted, but it wasn’t specific about dates and time and places (indistinct).
PN1504
Thank you, there’s nothing further.
PN1505
THE COMMISSIONER: Mr Gollan, thank you for your evidence today, we can hang up the telephone now. Thank you?---Thank you.
**** GRAHAM GOLLAN RXN MR SNOWBALL
<THE WITNESS WITHDREW [10.13AM]
THE COMMISSIONER: Yes, yes.
PN1507
MR BULL: They should be there.
PN1508
UNIDENTIIFIED SPEAKER: Somebody is there.
PN1509
MR BULL: Yes, I told them to get there at Queensland time which was quarter to nine so we can go – I don’t know who is there though.
PN1510
UNIDENTIFIED SPEAKER: Aaron Schneider is definitely there.
PN1511
MR BULL: Okay, we can deal with Aaron Schneider.
PN1512
THE COMMISSIONER: Thank you Mr Bull. We just need a minute to get the connection.
OFF THE RECORD [10.21AM]
ON THE RECORD [10.42AM]
PN1513
MR BULL: We have had some issues with the video link. We’re going to deal with Mr Schenider by telephone, so we may as well get going.
PN1514
THE COMMISSIONER: No, I appreciate that, I apologise to the parties for the technological failure.
PN1515
MR BULL: I think I can thank on behalf of everyone the work that your Associate has done, because it has been at times complex. Mr Schneider, are you there?
PN1516
MR SCHNEIDER: Yes, speaking.
PN1517
MR BULL: You can hear me okay?
PN1518
MR SCHNEIDER: Yes, I can.
PN1519
MR BULL: I’m Stephen Bull, we’ve spoken briefly before, I’m the advocate for the United Voice. Your name is Aaron Schneider?
PN1520
MR SCHNEIDER: That’s correct.
PN1521
MR BULL: You’ve made a statement in relation to this matter?
PN1522
MR SCHNEIDER: Yes.
PN1523
MR BULL: You’ve got a copy of your statement?
PN1524
MR SCHNEIDER: Yes I do.
PN1525
MR BULL: I will tender that statement.
PN1526
THE COMMISSIONER: Yes, I think I will mark the statement. Has Mr Schneider been sworn in?
PN1527
MR BULL: Sorry, I should do that.
<AARON SCHNEIDER, AFFIRMED [10.43AM]
<EXAMINATION-IN-CHIEF BY MR BULL [10.43AM]
MR BULL: Sorry, Commissioner.
PN1529
THE COMMISSIONER: That’s fine, which number were we up to?
EXHIBIT #UV17 WITNESS STATEMENT OF AARON SCHNEIDER
MR BULL: So I tender that statement. Just one very brief matter. Mr Schneider if you could look at paragraph 19 of your statement?---Yes.
PN1531
That talks about you say that SSDS managers were asking you to look for work, is that correct?---Yes.
PN1532
What type of work were they asking you to look for?---Any work (indistinct).
PN1533
So that wasn’t just work with incoming contractors?---No.
PN1534
That’s the evidence-in-chief of this witness.
PN1535
THE COMMISSIONER: Mr Snowball, anything?
PN1536
MR SNOWBALL: No.
**** AARON SCHNEIDER XN MR BULL
<CROSS-EXAMINATION BY MR SAUNDERS [10.45AM]
MR SAUNDERS: Mr Schneider, my name is Mr Saunders, I’m representing Serco Sodexo in this case, I’m going to ask you a few questions, okay?---Yes.
PN1538
You say you principally worked at the Lavarack Barracks but you also backfilled from time to time at the RAAF base in Townsville, is that right?---Yes.
PN1539
You were informed in about June or July by your shift supervisor that SSDS had been unsuccessful in retendering for the contract. Who was your shift supervisor?---Lorraine (Indistinct).
PN1540
That was the first time that you became aware that Serco Sodexo had been unsuccessful in retendering for the contract, is that right?---Officially, yes.
PN1541
Then you received a memorandum from management at about the same time informing you of the loss of the contract, is that right?---Correct.
PN1542
Was that memorandum posted on a notice board, is that where you saw it?---Yes.
PN1543
So there were notice boards in the workplace where you worked, correct?
---Correct
PN1544
Notices were put up there from time to time during 2014 about the loss of the contract and the opportunity for work with the incoming
contractors, that’s right?
---Yes.
PN1545
Was there also a folder that was used to place notices in so employees could read the notices and take copies if they wanted?---I was unaware of a problem.
PN1546
You just saw notices on the noticeboard did you?---No.
PN1547
The notices on the noticeboard that you saw also told you that NSS was going to be the incoming contractor for your area of the business, that’s right isn’t it?---I haven’t got (indistinct).
PN1548
That was in about August 2014, correct?---On (indistinct).
PN1549
You saw on the noticeboard in about 2014, about August 2014 a flyer calling for an expression of interest and applications for you
to make with MSS, is that right?---That’s correct.
**** AARON SCHNEIDER XXN MR SAUNDERS
PN1550
You say in paragraph 15 that you saw a screen shot of the web page for the incoming contractor, that was for MSS was it?---Yes, yes.
PN1551
After you saw that flyer with the screen shot then you went on to a computer and applied online for a job with MSS, is that right?---Yes, I took the details down and applied on my computer at home.
PN1552
You were aware that computers were being made available in the workplace for you to use if you didn’t have a computer at home, you’re aware of that aren’t you?---No, I wasn’t, no.
PN1553
But you had a computer at home to use, did you?---Yes, I do.
PN1554
You are also aware that Serco Sodexo offered to help employees prepare resumé, that’s right isn’t it?---I had heard that, yes.
PN1555
Did you take up that offer or not?---No because I didn’t have a resumé there.
PN1556
In the last sentence at paragraph 15 you say that you believe there was a separate application process for members of the public who were applying for positions from the outside. What’s the basis of your knowledge about that?---It actually stated on the file.
PN1557
What did it say?---That those who were working in the security defence force could apply using the special (indistinct) in their area.
PN1558
The special what in that area?---On a screen shot – a screen shot of the computer screen.
PN1559
**** AARON SCHNEIDER XXN MR SAUNDERS
And you - - - ?---(Indistinct) took you to the specifics of that site contracts.
PN1560
There was a special part of the website that was just for Serco Sodexo existing employees to apply was there?---Not just Serco Sodexo it was any other contractors.
PN1561
Anybody else currently working on the contract with Defence?---Yes.
PN1562
But if you are external, that is not currently working for a contract with Defence there was a different way of applying, was there?---If you’d worked outside the (indistinct) yes, there was a different (indistinct) the area where you first brought up employment.
PN1563
After you applied with MSS you attended an information session conducted by SSDS, that’s right isn’t it?---That’s correct.
PN1564
Was there anybody from MSS at that information session or was it just Serco Sodexo managers who attended?---No, just Serco Sodexo.
PN1565
Did that information session take place during work hours?---No. It was on my days off.
PN1566
But it took place at the work place didn’t it?---Yes.
PN1567
In that information session you received information from Serco Sodexo about obtaining work with an incoming contractor, is that right?---I was basically – well, you had to do, yes.
PN1568
What you had to do to get a job with the incoming contractor, that’s what you were told about in the information session, is
that right?---That was basically what we had to do at work, (indistinct) to continue looking for work for ourselves to make sure
that, you know, that we had a job to go to at the end of the contract and nothing much was really said about the incoming contractors
because they were having trouble getting information from the incoming contractors.
**** AARON SCHNEIDER XXN MR SAUNDERS
PN1569
Weren’t you told at this information session you attended, weren’t you given information at that session relating to obtaining work with the incoming contractor?---No.
PN1570
Can you look at paragraph 18 of your statement, please? Do you see in that paragraph you say, “The sessions canvassed issues such as maintaining their commitment to the performance of duties until the existing contract. Information around the winding down of certain sections and also information related to obtaining work with an incoming contractor.” Do you see that?---Yes.
PN1571
Is that a true statement?---It is true. They didn’t have much information to pass on to us because they were having trouble getting information.
PN1572
Given what you say in paragraph 18 it’s true to say isn’t it that at the information session you attended you received information from SSDS managers about obtaining work with the incoming contractor?---Yes, I was talking about the incoming contractors (indistinct) the information (indistinct) because at the time they really didn’t want to see information leaked to any other contractors but the (indistinct) situation and (indistinct).
PN1573
Are you telling us that somebody from SSDS at this meeting you attended told you that Serco Sodexo did not want to share information with incoming contractors such as MSS?---No, I said they were having trouble getting information from them about depending what the situation was. A lot of them (indistinct) being approached or being told who was coming in and who wasn’t coming in, as far as contractors. As the situation continued information – they were trying to find information on what was going on.
PN1574
Were you told what type of information Serco Sodexo was having trouble getting from incoming contractors?---Yes, even though they
were going to employ quite (indistinct) contracts were (indistinct) continuing, it was pretty (indistinct) at the time because of
the way the tender was done. So a lot of the contractors who were coming in didn’t know what they were going to be doing.
I believe a lot – I can’t talk about the other contractors because there was so many different contractors on site.
Things like they were (indistinct) enough information to pass on.
**** AARON SCHNEIDER XXN MR SAUNDERS
PN1575
Certainly you were told at that information session that MSS were going to interview Serco Sodexo employees who had applied for a job with MSS, that’s right isn’t it?---Most of the information I got about MSS came from (indistinct).
PN1576
Can you just focus please on the information session you attended on about 16 September 2014?---Yes.
PN1577
At that information session you were told by the Serco Sodexo managers who attended that there would be interviews for employees to attend with MSS, that’s right isn’t it?---No.
PN1578
By this time you had already prepared and submitted your application, hadn’t you?---I did.
PN1579
At what time did you find out that you were going to have to attend an interview?
---That was – I think that (indistinct) I found out we had an interview, it was a very long process.
PN1580
November you attended an interview, didn’t you?---In November, it was around November 18, I’m not quite sure because the last weeks of November that I actually got contacted that I had an interview.
PN1581
You knew well before you were contacted to attend an interview that you would need to attend an interview, that’s right isn’t it?---Only if I notified (indistinct) was accepted. I did not know if my application got accepted until the last two weeks of November.
PN1582
So when you applied for the job you understood that if your application made it through the first round that you would have to go
for an interview after that, is that right?---Yes, after the first round but I wasn’t notified, a lot of us weren’t notified
until the last week before the change of contract and that was through MSS.
**** AARON SCHNEIDER XXN MR SAUNDERS
PN1583
Were you told about the interview you needed to attend by Serco Sodexo?---No.
PN1584
MSS contacted you, did they?---Yes, that’s correct.
PN1585
In your interview, that was an interview and a physical wasn’t it?---No, just an interview, (indistinct) about a week later, actually days before the end of the contract.
PN1586
So you had the interview on 18 November did you?---No, I can’t remember exactly, it was the last few weeks before November, we were very anxious about whether we got jobs or not.
PN1587
About a week later you had a physical, is that right?---That’s correct, yes.
PN1588
Was the interview conducted at an SSDS workplace?---The interview was conducted, yes.
PN1589
I’m asking where it was conducted?---(Indistinct) SSDS security manager’s office (indistinct) the manager for MSS.
PN1590
Was that an interview you attended on your own or were there other employees there was well?---There were other employees as well.
PN1591
How long did an interview take?---About 45 minutes.
PN1592
Did it take place during work hours?---I went on my days off.
PN1593
The physical you attended the week later was that in the same location?---No, it wasn’t.
**** AARON SCHNEIDER XXN MR SAUNDERS
PN1594
Where was it?---It was conducted at a physiotherapist or (indistinct).
PN1595
Was that during work hours?---No, that was on my days off.
PN1596
You were successful in your application for a job with MSS weren’t you?---I was.
PN1597
You’re now working at the same site as where you formerly worked, correct?
---Correct.
PN1598
You’re working the same hours?---Yes, at the moment, yes.
PN1599
Same roster pattern at the moment?---Same roster pattern.
PN1600
Same supervisor?---No.
PN1601
Same duties?---Same duties.
PN1602
In paragraph 26 of your statement you say that in approximately early November 2014 SSDS circulated some additional employment opportunities, which were within the operations of MSS Security but at sites other than Defence sites. Were those opportunities circulated on the notice boards by Serco Sodexo?---Yes.
PN1603
Did you respond to those additional employment opportunities?---No, I didn’t.
PN1604
Did you know at the time you saw those notices go up on the notice boards that you had already been given an interview at MSS to work
on a Defence site?
---No.
PN1605
Why didn’t you respond to the additional opportunities that you had been notified about?---Before this it was found the wages
were different and there was no full time employment, at the time I had full time employment and it was paying my bills, they money
I was receiving. The conditions were totally different.
**** AARON SCHNEIDER XXN MR SAUNDERS
PN1606
Do you know anybody from Serco Sodexo or any employee from Serco Sodexo who applied for one of those additional employment opportunities
with MSS?
---No.
PN1607
When you were employed by Serco Sodexo did you have some sort of security clearance?---Yes.
PN1608
What was it, was it a base line security clearance?---It was (indistinct).
PN1609
Do you still have that same clearance now?---I believe so.
PN1610
Did MSS ask you whether you had that kind of clearance when you attended the interview?---Yes.
PN1611
Do you have any understanding as to whether that helped you get the job?
---Sorry?
PN1612
Do you have any understanding as to whether you having a Neg Vet 1 assisted you to get a job offer with MSS?---I believe so, but then (indistinct) and we needed it to be able to work there.
<RE-EXAMINATION BY MR BULL [11.03AM]
MR BULL: I think it’s all been dealt with but just how long have you had the Neg Vet clearance for?---Can you state that again?
PN1614
How long have you had your security clearance for?---Since (indistinct) security and it’s changed – the relevant requirements
have changed over the years, so we may keep updating.
**** AARON SCHNEIDER RXN MR BULL
PN1615
It was something you had because of your work with SSDS?---Yes.
PN1616
Thank you.
PN1617
THE COMMISSIONER: Mr Schneider, thank you for your evidence today. Could you ask the next witness to come in and you’re free to go. I think Mr Brewer is the next person?---Thank you.
PN1618
And don’t touch the microphone, and leave the statement of Ms (Indistinct). Thank you.
<THE WITNESS WITHDREW [11.04AM]
<KENNETH BREWER, AFFIRMED [11.05AM]
<EXAMINATION-IN-CHIEF BY MR BULL [11.06AM]
MR BULL: Mr Brewer, my name is Stephen Bull. Mr Brewer, you have made a statement in relation to this matter?---Yes, sir, I have.
PN1620
You’ve got your statement in front of you?---Yes, sir, I have.
PN1621
Your statement is true and correct to the best of your knowledge?---Yes, it is.
PN1622
I tender the statement of Mr Brewer.
EXHIBIT #UV18 WITNESS STATEMENT OF KENNETH BREWER
THE COMMISSIONER: Mr Snowball wants to ask a question?
PN1624
MR BULL: He wants to ask a question apparently.
PN1625
THE COMMISSIONER: That’s fine. Mr Snowball is from the NUW. He wants to ask a question.
PN1626
MR SAUNDERS: Commissioner, we had this on the last occasion.
PN1627
THE COMMISSIONER: Yes.
PN1628
MR SAUNDERS: And it was problematic because new evidence was led and we didn’t have a chance to be able to deal with.
PN1629
THE COMMISSIONER: Yes, I remember that.
PN1630
MR SAUNDERS: I am concerned about the same thing happening.
PN1631
THE COMMISISONER: It depends on what Mr Snowball wants to do.
**** KENNETH BREWER XN MR BULL
PN1632
MR SAUNDERS: Yes, it does.
PN1633
MR SNOWBALL: I just have a few questions just to clarify a few points in the statement. I of course acknowledge that if anything comes forward that Mr Saunders doesn’t have the opportunity to test then I will be limited in the questions that I can ask.
PN1634
THE COMMISSIONER: Yes.
PN1635
MR SAUNDERS: Commissioner, this is what happened last time. It’s too late once it comes out. Evidence-in-chief should be put on so we are given a fair opportunity to know what it is a witness says. We can make the inquiries we made with Ms Leibrandt, put on a statement in reply, deal with it in a proper way.
PN1636
UNKNOWN SPEAKER: Well, we don’t know what he’s going to ask
perhaps - - -
PN1637
MR SAUNDERS: There is no property in a witness, Mr Snowball had any opportunity in the world to speak to this gentleman and put on a supplementary statement by him to notify us what these additional matters are he wanted clarified. He’s not sought to do so. It’s not appropriate to be done now in my submission.
PN1638
MR SNOWBALL: Commissioner, I would say that that begs the question as to why Mr Saunders was able to cross-examine, for example, Ms Pianta or Mr McKinnon, they were very favourable to Mr Saunders and he was given every opportunity to ask questions and he could have made contact with them.
PN1639
MR SAUNDERS: I didn’t call them.
PN1640
**** KENNETH BREWER XN MR BULL
MR SNOWBALL: I haven’t called this witness either.
PN1641
THE COMMISSIONER: Yes, Mr Snowball didn’t call his witness. I don’t want to get into the same problem as we had last time, Mr Snowball, I am going to allow you to ask a few questions but if I find that that becomes problematic then I’m going to stop it.
PN1642
MR SNOWBALL: Understood.
<EXAMINATION-IN-CHIEF BY MR SNOWBALL [11.09AM]
MR SNOWBALL: Mr Brewer, if I can take you to point 14 of your statement?
---(Indistinct).
PN1644
Do you have that there in front of you?---Yes, I do.
PN1645
It says that in February 2014 you submitted an expression of interest?---Yes, I did.
PN1646
How did you submit this expression of interest?---Through the (indistinct) website.
PN1647
Whose computer did you use to submit the expression of interest?---I used my own personal computer at home.
PN1648
You did this on your own time?---On my own time, yes I did.
PN1649
Can I take you to point 17 of your statement?---Yes, sir.
PN1650
You’ve said that you forwarded another expression of interest and a resume to Spotless?---Yes, I did.
PN1651
**** KENNETH BREWER XN MR SNOWBALL
Whose computer did you use to do this?---I used my own again in my own time as well, sir.
PN1652
You’ve said you have created a resume, did you create that resume yourself?
---Yes, sir, I did.
PN1653
On whose computer did you create the resume?---On the main computer used in a resume builder that I got off-line.
PN1654
Did you receive any assistance to write that resume?---No, I didn’t.
PN1655
Were you aware that SSDS was offering employees assistance for creating a resume?---A while later after I submitted my two resumes.
<CROSS-EXAMINATION BY MR SAUNDERS [11.10AM]
MR SAUNDERS: Mr Brewer, your supervisor was Ms Tracey Saunders, is that right?---That is correct, sir.
PN1657
She told you in February 2014 that SSDS had lost the Defence contract, is that right?---Yes, sir.
PN1658
You say in paragraph 4 of your statement that Ms Saunders advised you of this fact in an informal capacity. Do you mean that she told you about that in a meeting rather than gave you some written document about it. Is that what you meant by informal?---We were at (indistinct) and she heard about it and she wasn’t (indistinct) and she passed it on.
PN1659
Can you repeat that, I didn’t quite catch what you said?---We were out in (indistinct) everyone was together and she informed
us that she had (indistinct) Spotless had lost the contract, (indistinct) relating to it right at the end so that (indistinct) contract
for SSDS.
**** KENNETH BREWER XXN MR SAUNDERS
PN1660
You just said Spotless lost the contract, did you mean to say - - - ?---I mean SSDS Services.
PN1661
So she told you in a tool talk meeting that SSDS had lost the contract, is that right?---Yes, sir, (indistinct).
PN1662
You say that that was an informal capacity because she was telling you that in a toolbox meeting rather than giving you some document about it?---Yes, sir, because she wasn’t certain.
PN1663
But you did receive a written notification of the loss of the contract in early 2014, didn’t you?---Yes, sir.
PN1664
You received that from SSDS didn’t you?---Yes, I did.
PN1665
Was that a notification you saw on a noticeboard at work?---No, we had one tendered out to each of us individually (indistinct).
PN1666
By Ms Saunders?---Yes.
PN1667
You had to sign when you received the notification did you?---Yes, sir.
PN1668
To indicate that you’d received it?---To indicate that we received it, yes.
PN1669
Did you receive other notifications in that same way throughout 2014 about the loss of the contract or the new contract that’s
coming on board?---At the end of the contract we got a (indistinct) team update they called it where they just gave us updates on
how our contract was going, how it was ending and all that (indistinct) program and stuff like that (indistinct).
**** KENNETH BREWER XXN MR SAUNDERS
PN1670
Did you receive those notifications by documents being handed to you or what?
---The documents were printed out by Mrs Saunders and it was placed on the table so we read them with our own time.
PN1671
This is a table in the lunch room or something like that?---Yes, in the lunch room.
PN1672
Were the documents left for you to take away if you wanted copies of them?---We had to ask for copies to be made.
PN1673
When you did ask were they made?---Yes, they were.
PN1674
Those documents were left on the table on a pretty regular basis from mid-2014 until the end of the contract, that’s right isn’t it?---Yes, (indistinct) two or three weeks we got a new update.
PN1675
Those notices told you that Spotless was the new contractor for your part of the business, correct?---They gave a list of contractors for each department.
PN1676
One of those notices - - - ?---(Indistinct).
PN1677
The notices also told you how to apply for a job with Spotless, that’s right isn’t it?---Yes, sir, it was.
PN1678
That was by going onto the Spotless website, is that right?---Yes, sir, the one that we had to apply to previously.
PN1679
You are aware that there were computers made available for employees who needed to use them at work to access the website if they
didn’t have a computer at home, that’s right isn’t it?---Yes, it was to be used in our after work time.
**** KENNETH BREWER XXN MR SAUNDERS
PN1680
There was no restriction on computers being used after work I want to suggest to you, you could use them during work if you needed to?---We only had one computer at work and we would all get on. I didn’t (indistinct) anyway because I’d already done mine.
PN1681
You didn’t ever ask to get onto that computer during work hours did you?---No, (indistinct).
PN1682
You say in your statement in paragraph 8 that Ms Saunders encouraged you to apply for chefs roles because you’re a trade qualified chef, is that right?---Yes, that is correct.
PN1683
Ms Saunders also encouraged you to apply for other roles such as the maintenance role you’re in, didn’t she?---Yes, sir.
PN1684
You formed the view that Ms Saunders was genuine when she was encouraging you to apply for all of those roles?---Yes, certainly, sir.
PN1685
When she spoke to you about those roles and you applying for them she was talking to you during work hours, wasn’t she?---She sent me text messages outside of work and she talked to me at work as well (indistinct) happening, trying to look out for me.
PN1686
You don’t know what instructions Ms Saunders was given by Serco Sodexo about encouraging employees to applying for roles do you?---I’ve got no idea, sir.
PN1687
So it follows from that that you don’t know whether Ms Saunders was encouraging you to apply for roles of her own initiative
or because she’s been instructed to do so by Serco Sodexo, do you?---(Indistinct) own initiative because she didn’t have
a job at that stage and she was telling us about jobs she’d applied for and helping us to apply for them as well.
**** KENNETH BREWER XXN MR SAUNDERS
PN1688
The fact that she didn’t have a job ready to go to, that was the reason why you felt that she was encouraging you to apply for these roles on her own initiative, is that right?---Yes, and she (indistinct) to apply for them as well because we didn’t know at that stage if (indistinct) employment again or (indistinct) altogether.
PN1689
Did it occur to you that Ms Saunders might have been just doing her job in encouraging you to apply for all these roles?---Yes, I thought (indistinct) being nice to me.
PN1690
You attended a group meeting you say in paragraph 10 on site about employees who were affected by the change of contract from SSDS to Spotless, was that a meeting where anybody from Spotless turned up or was that just a Serco Sodexo meeting?---It was a Serco Sodexo where we had people like the (indistinct) agencies and we had (indistinct) as well (indistinct) gave us a link to Spotless and they told us about Spotless and told (indistinct) what we had to do (indistinct) hopefully got our jobs again.
PN1691
This recruitment agency, was it Hays Recruitment?---Yes (indistinct) there was somebody else that I can’t remember.
PN1692
Who was there from SSDS at this meeting?---It was a lady from HR.
PN1693
So this is after you had submitted your expression of interest, is that right?---Yes, sir, it was.
PN1694
But before you had attended any interview, is that right?---Yes, sir, it was.
PN1695
The meeting took place during work hours?---Yes, it did.
PN1696
**** KENNETH BREWER XXN MR SAUNDERS
At work?---At work.
PN1697
You were paid for your time attending the meeting, weren’t you?---Yes, I was.
PN1698
How long did the meeting go for?---A couple of hours.
PN1699
At the meeting the Serco Sodexo HR manager talked to you about interview techniques for your upcoming interviews, is that right?---No, she didn’t talk to us about interviewing techniques and really it was just about how to look after our finances and all that kind of stuff.
PN1700
Did anybody at the meeting talk to you about interview techniques?---Nobody did.
PN1701
Look at paragraph 11 of your statement, please. You say there, “This group meeting was also attended by management and recruitment agencies. The meeting discussed topics such as interview techniques and resume writing skills.’ Is that a true and correct statement what you say in paragraph 11?---Yes, it is.
PN1702
Who told you at this meeting about interview techniques?---It was the employment agency people.
PN1703
Someone from Hayes?---Well the (indistinct) place.
PN1704
Centrelink?---Centrelink, that’s them.
PN1705
They talked to you at this meeting about interview techniques did they?---Yes, and how to update our resumes and (indistinct) to businesses perspective instead of our - - -
PN1706
You found that information you received about interview techniques to be helpful didn’t you?---Yes, sir, I did.
**** KENNETH BREWER XXN MR SAUNDERS
PN1707
Did you attend any meeting where Spotless representatives spoke to employee?
---Yes, sir, right at the end, in February 2014.
PN1708
February 2014?---Yes, right at the end of the contract, January, February we had – we just took over, we had Spotless come in and talk to us, telling us (indistinct) the first week in December.
PN1709
First week in December, was this were you were already employed by Spotless?
---(Indistinct).
PN1710
Did you - - - ?---(Indistinct) a site induction for both (indistinct).
PN1711
What about before you were employed by Spotless, did you attend any meeting where Spotless representatives spoke to Serco employees?---We (indistinct).
PN1712
We’ll come to that in a moment if I may, but I’m just asking about any information session run by Spotless representatives that you might have attended?---We (indistinct).
PN1713
Moving now to the interview, the interview you attended was with somebody from Spotless, is that right?---Yes, it was.
PN1714
That was at your worksite?---It was at the Spotless (indistinct).
PN1715
How many people attended that interview at the one time?---In my session there was five of us.
PN1716
How long did it go for?---A couple of hours.
PN1717
**** KENNETH BREWER XXN MR SAUNDERS
Did that involve a medical assessment as well as an interview?---It was an interview and a (indistinct) questionnaire with a medical
(indistinct) sheet.
PN1718
I think you told us a few moments ago that you went to that interview during work time and you were paid, is that right?---Yes, that’s correct.
PN1719
How did you find out that your application to Spotless had been successful?---We got a call in (indistinct) Spotless themselves to tell us that we got the job and to have a week to fill in your paperwork and return it to them.
PN1720
Did you complete the paperwork yourself or did you get any assistance with that?
---I completed that all myself.
PN1721
How did you return it to Spotless, was that done through a process at work or outside work?---Outside work.
PN1722
You also attended a consultation session with Michelle Maguire and Sandra Wilkie from Serco Sodexo on about 16 September 2014, didn’t you?---Yes, sir.
PN1723
That was a consultation session that took place at the workplace during work hours?---Yes, sir.
PN1724
How long did that one take?---Not that long, sir, roughly an hour.
PN1725
You were paid for your time there weren’t you?---Yes, I was.
PN1726
At that consultation session you were given information about the loss of the contracts, the transition into new contracts and how to get a job with the new contractor, correct?---Yes, and other employment opportunities.
PN1727
**** KENNETH BREWER XXN MR SAUNDERS
Do you also recall attending a job readiness session on about 10 December 2014?
---Yes, I do.
PN1728
Was that before or after you had started with – it must have been before you started work with Spotless, is that right?---It was around the time that we started with Spotless.
PN1729
Sorry, I think I’ve misled you with the date?---(Indistinct) switched over the contract in November 30th.
PN1730
How long before the contract ended did you attend this job readiness session?---It would have happened a couple of weeks before the contract ended.
PN1731
What were you told at that job readiness session?---Resume skills, websites look for jobs and if we wanted any help with (indistinct) writing (indistinct) to talk to HR.
PN1732
Did you attend this job readiness session before you had your interview with Spotless?---I think I had my interview with Spotless beforehand.
PN1733
Did you have a form of security clearance when you were employed by Serco Sodexo?---Yes, sir, I did also two forms of security clearance.
PN1734
What are they please?---I’ve got my base one to get into the base at (indistinct) and I’ve got my airfield induction clearance to work on the airfield.
PN1735
When did you get your base security clearance, the first one you spoke about?
---The first one is (indistinct) SSDS.
PN1736
When was that?---It was at the start of my employment.
**** KENNETH BREWER XXN MR SAUNDERS
PN1737
Do you still have that base security clearance in your job now with Spotless?
---Yes, we had to reapply for it.
PN1738
Did you do that after you started work with Spotless or before?---We did it just before we started with Spotless.
PN1739
Did Serco Sodexo help you in that process?---Yes, they did.
PN1740
In what way?---They basically questioned all about (indistinct) and they sent it off to the (indistinct) department, they had to send it for us.
PN1741
The second type of clearance you told us about, was it airfield induction clearance?---Yes, it was, sir.
PN1742
When did you get that?---It was in approximately February last year, February, March.
PN1743
Did that have to be transferred across to Spotless as well?---Yes, sir.
PN1744
Did you adopt the same sort of process as you did with the baseline security clearance, that is start the application when you were still employed by Sodexo and get help from Sodexo in that process?---No, sir, it was a totally different one because we haven’t reviewed it yet because it lasts for years.
PN1745
So you haven’t had to apply to have it transferred across to Spotless, is that right?
---(Indistinct) we’re using the old one still.
<RE-EXAMINATION BY MR BULL [11.29AM]
MR BULL: Mr Brewer, you mentioned that at a tool box meeting that you were informed by your manager that SSDS had lost the contract
and you used the word that she or he wasn’t certain about that, could you just elaborate on why you believed there was some
uncertainty in what was being communicated?---Because she said to us that she (indistinct) she hasn’t been told formally.
**** KENNETH BREWER RXN MR BULL
PN1747
So that’s the context of you saying it wasn’t a formal announcement? Do you hear me, sir?---Yes.
PN1748
That’s why you said it wasn’t a formal announcement?---Yes, that is correct.
PN1749
You mentioned that you had some difficulty or you never got onto the computer in the workplace, do you recall that evidence?---Yes, I do.
PN1750
Could you just elaborate on what you meant by that?---In our (indistinct) we have only one computer (indistinct) when we got back to the yard if the manager (indistinct) we couldn’t get on it.
PN1751
There was some cross-examination about Ms Saunders and the assistance that she provided. Ms Saunders was as well as your manager you were quite friendly with her, that’s correct?---I was very, very friendly with her, sir.
PN1752
My friend Mr Saunders, another Mr Saunders, asked you questions about whether what she was doing was because she was a manager or whether it was because a friend, were there any actual conversations you had with her which led you to believe that her actions were of her own initiative and as a result of her regard for you rather than because of a direction from her employer? I’m talking about actual conversations, if you could just tell us those conversations you had with her?---She knows that my wife and (indistinct) in regard to IVF, (indistinct) personal conversations, she is (indistinct) she knows that I need money for the next cycle basically, I can’t be unemployed.
PN1753
Yes, but is there anything she said that indicated that her assistance was initiated by her rather than her employer. Do you understand what I’m getting at?---Yes.
PN1754
**** KENNETH BREWER RXN MR BULL
Are there any actual conversations you can recall that provided you with material to form that belief?---She told me a couple of times
that she (indistinct) for herself and (indistinct).
PN1755
So in other words it was the context and I suppose - - -
PN1756
MR SAUNDERS: Don’t lead please.
PN1757
MR BULL: I’ll withdraw that. In relation to security clearances – I withdraw that. Nothing further.
PN1758
THE COMMISSIONER: Thank you very much for your evidence today, Mr Brewer. If you could ask the next witness to come in.
PN1759
MR SNOWBALL: Janelle Constantin.
PN1760
THE COMMISSIONER: That’s Janelle Constantin and you are free to go and don’t touch the telephone?---No, I won’t. Thank you.
<THE WITNESS WITHDREW [11.33AM]
<JANELLE CONSTANTIN, AFFIRMED [11.33AM]
<EXAMINATION-IN-CHIEF BY MR SNOWBALL [11.35AM]
MR SNOWBALL: Ms Constantin, it’s Mr Snowball here, can you hear me okay?---Yes.
PN1762
Your name is Janelle Constantin?---Yes.
PN1763
You have prepared a witness statement for these proceedings?---Yes.
PN1764
Do you have a copy of that statement in front of you?---Yes.
PN1765
Does it contain 18 paragraphs?---Yes.
PN1766
Are the contents of that statement true and correct?---Yes.
PN1767
I seek to tender that, Commissioner.
**** JANELLE CONSTANTIN XN MR SNOWBALL
EXHIBIT #NUW15 WITNESS STATEMENT OF JANELLE CONSTANTIN
<CROSS-EXAMINATION BY MR SAUNDERS [11.35AM]
MR SAUNDERS: Ms Constantin, you were told in about the middle of 2014 that Serco Sodexo had lost its Defence contract in North Queensland, that’s right isn’t it?---Yes.
PN1769
You were told by Serco Sodexo at that time that the new contractor was going to be Spotless for your part of the business?---Yes.
PN1770
You were also told by Serco Sodexo at about that time how you could apply for a job with Spotless, is that right?---Yes.
PN1771
There was a notice board in the workplace where you worked with Serco Sodexo, wasn’t there?---I beg your pardon?
PN1772
Was there a notice board in the workplace?---Yes.
PN1773
On the notice board throughout 2014 notices were posted up from time to time about the loss of the contracts and how to go about getting a job with a new contractor, is that right?---Not till the end of the year.
PN1774
Didn’t those notices start about the middle of the year and go through until the end of the year?---We got told and then we could do nothing for quite some time.
PN1775
Then you started seeing notices on the noticeboard, is that right?---Occasionally, yes.
PN1776
When did you start seeing them, roughly? Was it about August, about that time?
---Maybe September or something, I can’t quite remember the exact time.
PN1777
Sorry, did you say September or something like that?---Yes, September, I can’t actually remember the exact time.
PN1778
Did you attend an information session conducted by Spotless representatives about getting a job with Spotless?---Yes.
PN1779
Can you tell us roughly when that was?---I think maybe around September.
PN1780
Did that information - - - ?---Late September.
PN1781
Did that information session take place at your workplace?---No.
PN1782
Where did it take place?---At the Spotless offices.
PN1783
**** JANELLE CONSTANTIN XXN MR SAUNDERS
Did you attend that information session during work hours?---Yes.
PN1784
You were paid for your time attending that session weren’t you?---Yes.
PN1785
You were provided with information at the session about Spotless as a company and how the recruitment process would work, is that right?---Yes, and was given forms to fill out.
PN1786
Were they application forms?---No, not really, no, they were just forms like past experience and there was an OH&S test you had to do. But it wasn’t actually an application form and it wasn’t really an interview as such.
PN1787
THE COMMISSIONER: Are you talking about the interview session or was there a separate interview session?---Well, I wouldn’t really call it an interview session, I’d call it more of a forum because there was no one on one interview, there was no way that Spotless could judge what anyone was really like, it was just more of a forum and people went and filled in their forms that they wanted but as to be an interview it’s not an interview the way I perceived an interview for a job, it was more a forum for everyone.
PN1788
I think perhaps if we just clarify this. Did you attend one or more than one session with Spotless?---One.
PN1789
MR SAUNDERS: Is this session you’re telling us about the session you speak of in paragraph 6 of your witness statement?
PN1790
THE COMMISSIONER: Did you say yes to that?---Yes, we went but as I said before I wouldn’t call it an interview, it was more a forum based proceeding.
PN1791
MR SAUNDERS: You were told about this session by your Serco Sodexo team leader, is that right?---Yes.
**** JANELLE CONSTANTIN XXN MR SAUNDERS
PN1792
So they told you the time, the date and the place for you to attend this session?
---Yes.
PN1793
Before you attended that session you had submitted an application to Spotless, is that right?---An expression of interest at first, that’s all they were asking for.
PN1794
Was that done on a computer?---Yes, my home computer.
PN1795
You were aware that Serco Sodexo had computers available on the work site for people to use if they needed to, correct?---Not really, no. In the beginning we went to a couple of different times to use the computer if you wished to.
PN1796
You were told that later were you?---Much later.
PN1797
What sort of time frame, if you can tell us please?---Probably right to – nearly right to the end. I wasn’t aware of anyone using the computers, they were all using outside computers or friends computers. That’s just to my knowledge.
PN1798
THE COMMISSIONER: When you say right at the end, so the contract ended on 30 November, so was it a month before the end or two months before the end, can you - - - ?---Probably maybe around the beginning of November.
PN1799
MR SAUNDERS: When do you say you attended this session at Spotless’s offices?---Yes.
PN1800
When?---When? I can’t remember the exact date. I think maybe around the 14th of July, August – I’m not quite sure on the exact date that we went to the Spotless office.
PN1801
**** JANELLE CONSTANTIN XXN MR SAUNDERS
Can you recall how long before the end of the contract it was, was it days or weeks or months?---It was probably nearly two months.
I’m not sure.
PN1802
When you attended this session at Spotless offices that was during work hours and you were paid for your time there, is that right?---Yes.
PN1803
How long did that process take to get to the group session, attend it and get back to work?---Maybe an hour and a half, an hour and 15, something like that.
PN1804
What sort of security clearance did you have when you were employed by Serco Sodexo?---Just a very basic clearance to get onto base and around the base but not – I didn’t have special clearance to get like to certain places, it was just pretty standard clearance.
PN1805
When did you get that clearance?---2009.
PN1806
Do you still have that clearance now or has it come to an end?---No, no, we had to hand our clearances back.
PN1807
When your employment came to an end, is that right?---Yes.
PN1808
Do you recall attending a consultation session held by Serco Sodexo on about 16 September 2014?---Yes, that had more to do with a man from Centrelink there telling people that if they were successful in getting their job like what Centrelink can do for them.
PN1809
There were also representatives from Serco Sodexo at that consultation session weren’t there?---Like the HR manager?
PN1810
Yes?---Yes.
**** JANELLE CONSTANTIN XXN MR SAUNDERS
PN1811
The HR manager provided information at that session about what the process was in terms of trying to get a job with one of the new contractors, correct?---No, it was basically the man from Centrelink telling us.
PN1812
THE COMMISSIONER: I think you might be talking about a later session. Was there a session about two weeks before the end of the contract, there’s 14 November, around 14 November where Centrelink were present?---That’s probably the one, yes, I only remember the ones with the Centrelink man.
PN1813
So that was around two weeks before the end of the contract was it?---Maybe, I’m not sure on dates and times.
PN1814
Yes, but was there an earlier session in September which didn’t involve Centrelink but was where Serco told you about the fact that the contract was coming to an end and who the incoming contractors were and so on?---Yes, I think that involved everyone.
PN1815
Mr Saunders might want to ask you something else about that if you can remember.
PN1816
MR SAUNDERS: Thank you, that’s the meeting I’m asking you about. Do you recall Michelle Maguire and Sandra Wilkie from Serco Sodexo presenting at that earlier meeting?---Yes, yes, the name rings a bell now, yes.
PN1817
You recall they were telling you about the transition to the new contractors and what the process would be in terms of trying to get a job with them?---They just said that yes, the contract was going to Spotless and they didn’t really say a great deal, but yes, you just apply to Spotless for your job.
PN1818
They told you how to apply to Spotless for a job, is that right?---Yes, yes I think it was just to go online and that was basically
all it was, you just have to go online and send – at that group forum we had you were to take your resume into Spotless.
**** JANELLE CONSTANTIN XXN MR SAUNDERS
PN1819
At that meeting the Serco Sodexo representatives, Ms Maguire and Ms Wilkie, they offered assistance to people to prepare their resumes to take in, that’s right isn’t it?---Yes, maybe, because I’d already had mine prepared.
PN1820
I now want to ask you about the meeting that took place later on, a few weeks before the contract came to an end. It was described at least by some managers as an open forum session and I think Centrelink people were there on about 14 November 2014, does that ring a bell to you?---Yes, I do remember the Centrelink man being there.
PN1821
Do you remember Astrid Leibrandt from HR with Serco Sodexo being there as well?---Yes, I think – yes, I think she was there, yes.
PN1822
Do you recall her offering to people who were in attendance at that meeting one on one assistance to help them secure future employment?---No, I don’t remember that. I mean it probably happened but I don’t remember it.
PN1823
You didn’t ask the HR person at that meeting or anybody else from Serco Sodexo for that type of assistance did you?---No.
PN1824
But you knew it was available if you wanted to take it up?---Yes.
PN1825
You also attended regular team meetings throughout 2014, didn’t you?---Not all of them, no.
PN1826
There were some team meetings you attended, is that right?---Yes.
PN1827
How often were the team meetings held?---Whenever they feel the need.
PN1828
**** JANELLE CONSTANTIN XXN MR SAUNDERS
Every week or two weeks or something like that?---Whenever they had a new team talk thing which was you were supposed to have them
I think maybe once a month but that didn’t always happen.
PN1829
But from about July 2014 to the end of the contract there were those team meetings every couple of weeks weren’t there?---Maybe once a month or something but it wasn’t – it was on team talks it wasn’t always talk about Spotless or anything like that, it was just the team talks that we had to (indistinct).
PN1830
From the middle of 2014 to the end of the contract when you attended those team meetings there was always discussion at those team meetings about what was happening with the transition to the new contractors, wasn’t there?---If they had information, but they didn’t always have information.
PN1831
Most of the team meetings you attended in that second half of 2014 there was information to be provided about the transition to the new contracts, wasn’t there?---Sometimes but not all the time.
PN1832
Had you heard about YAMMA when you were employed by Serco Sodexo, didn’t you?---I only found out about YAMMA probably in the last days of - none of us had access to YAMMA, we didn’t even know what it was.
PN1833
When you say “last stages” what are you talking about?---Probably in the last month when they started talking about you can look on YAMMA and question with us what’s YAMMA. Most of the time like us the cleaners we’d never had access to anything like that, it was only I would imagine the supervisors or team leaders, we didn’t even know what YAMMA was.
PN1834
Did you ask your supervisor what YAMMA was?---When I started hearing it, yes.
PN1835
**** JANELLE CONSTANTIN XXN MR SAUNDERS
What were you told?---That it was a site that you could go on and they have updated information but we had no – well, I had
and the other cleaners had no access to it.
PN1836
That was because you needed an SSDS email address to access it, correct?---Yes.
PN1837
Did you ask anybody for an SSDS email address so you could access it?---We were only cleaners and we didn’t need to have an SSDS email address.
PN1838
Did you ask anybody if you could have an SSDS email address so you could access YAMMA?---No.
PN1839
Did you ask your supervisor whether there was any way that you could get onto YAMMA?---I did ask that and was just told if you go onto the SSDS website you can get onto it through links through there but - - -
PN1840
Did you go onto the website?---I’ve been on the SSDS website before but I couldn’t find any links to go to the YAMMA.
PN1841
When your supervisor told you that you could access it in that way did you try to go to the website and try and access it or not?---No.
<RE-EXAMINATION BY MR SNOWBALL [11.54AM]
MR SNOWBALL: Ms Constantin, you said you only found out about YAMMA in the last month of your employment and you asked your supervisor and they said to go to the SSDS website?---Yes.
PN1843
Was this after you had already submitted an application to Spotless?---Yes.
PN1844
Was it after you had already attended the group interview with Spotless?---Yes.
**** JANELLE CONSTANTIN RXN MR SNOWBALL
PN1845
There’s nothing further, Commissioner.
PN1846
THE COMMISSIONER: Thank you very much for your evidence today. So you are free to go. Is the United Voice organiser still there?---Yes.
PN1847
UNIDENTIFIED SPEAKER: Yes, Commissioner.
PN1848
THE COMMISSIONER: Perhaps you could assist us by – do we need to disconnect? Yes, all right. If you just could tell people on the way out that you’ve finished and you can disconnect the telephone call and thank you for your assistance?---Most certainly, Commissioner, thank you very much.
<THE WITNESS WITHDREW [11.55AM]
THE COMMISSIONER: We will just adjourn for a couple of minutes while we link to Brisbane for the final witness.
<SHORT ADJOURNMENT [11.56AM]
<RESUMED [12.04PM]
PN1850
THE COMMISSIONER: Just one second please.
PN1851
MR BULL: This is Keran Ninehan.
<KAREN NINEHAN, AFFIRMED [12.04PM]
<EXAMINATION-IN-CHIEF BY MR BULL [12.06PM]
MR BULL: Your name is Karen Ninehan, is that correct?---Yes.
PN1853
You’ve made a statement in relation to this matter?---Yes, I have.
PN1854
You have got your statement in front of you and to the best of your knowledge your statement is true and correct?---Yes, I didn’t have the statement in front of me but there are a couple of things I would like to just confer with you about.
PN1855
Let’s take it one by one, there are some items you want to amend or clarify, what’s the first matter?---Yes, it will be number 12.
PN1856
Right. What do you want to clarify about that statement?---Yes, I’d like to just say that it says that, “Some employees have not submitted an EOI,” but I’m aware that all (indistinct) and only some had (indistinct).
PN1857
Just quickly, where is RAAF, sorry, is that a base?---Yes, it is, it’s (indistinct) an airforce base at Townsville and then there’s (indistinct) is also at Townsville.
PN1858
Anything else you want to add in relation to that paragraph?---No.
PN1859
What is the next matter you want to clarify?---Yes, paragraph 15, I’d like to just say that the surname was unknown for Linda and her surname is Linda Stewart and she is the national recruitment advisor for Spotless.
PN1860
Thanks. What’s the next matter?---Yes, it’s paragraph 18.
PN1861
Right?---I would just like to make mention that I did receive my first termination letter in October – around October which was the necessary five weeks’ notice and then I was also given a final termination letter on 18 November from Serco Sodexo Defence Services.
PN1862
**** KAREN NINEHAN XN MR BULL
Any other matter you want to clarify?---Yes, I would like to on paragraph 19 to say that I have now received my redundancy this morning.
PN1863
How did you become aware of receiving that money?---Yes, I checked my bank account this morning before I left to come to the Commission.
PN1864
Is there any other matter you want to clarify?---Just paragraph 13 which says that it was as far as I’m aware (indistinct).
PN1865
THE COMMISSIONER: Sorry, I’m not sure how that relates to paragraph 13?
---30.
PN1866
Paragraph 30, okay, thank you?---Yes.
PN1867
MR BULL: Just briefly, in relation to paragraph 26. Can you recall the exact words to the best of your recollection that Ms Mexna uttered in relation to the matters deposed to in that paragraph? Perhaps just read it briefly to familiarise yourself with it?---That’s paragraph 26?
PN1868
Yes?---Can I just confirm, yes.
PN1869
Just have a read of it?---Certainly. Yes, I had a conversation with Jordan (Indistinct) just in regards to - just a general conversation in regard to the outcome of (indistinct) and I asked a question to her just in regards to why we would follow through, well why would Serco Sodexo follow through with further in going to New South Wales, ACT as well as NQ and why did they keep going when the Commission had ruled that redundancies were to be paid and she said it’s because we could possibly bring two out of three, so different – every state could have a possible different outcome.
PN1870
**** KAREN NINEHAN XN MR BULL
They’re the words to the best of your knowledge that she uttered?---Yes, they are.
PN1871
I might tender those statement.
EXHIBIT #UV19 WITNESS STATEMENT OF KAREN NINEHAN
MR SNOWBALL: Nothing from me.
<CROSS-EXAMINATION BY MR SAUNDERS [12.11PM]
MR SAUNDERS: Ms Ninehan, Dawn Nexnor was your supervisor, is that right?---No, she was my manager.
PN1874
What was her position?---She was domestic services manager for North Queensland.
PN1875
Where was she based?---She was based at Lavarack Barracks but she overseen both bases.
PN1876
When you say she oversaw both bases you’re talking about Lavarack Barracks and also the RAAF base, is that right?---Yes, that’s correct.
PN1877
You were employed by Serco Sodexo as a team leader, is that right?---Yes, team leader, supervisor, some people refer to us as a supervisor, some people as a team leader.
PN1878
Where were you based?---I was based at RAAF base Townsville and I’d been there for a year, previous to that I was at Lavarack for two years and before that seven years at RAAF.
PN1879
**** KAREN NINEHAN XXN MR SAUNDERS
In your last period when you were at the RAAF base, did all of the member of your team work at that same base or did some work at
a different place?---No, they all worked at the same base.
PN1880
How many employees were in your team where you were the team leader at the RAAF base?---There was approximately 14 people.
PN1881
When you were the team leader you had an SSDS email address didn’t you?
---Yes, I did.
PN1882
You received emails at that email address about work related matters from time to time?---Yes, I did.
PN1883
You also sent emails from that email address about work related matters from time to time?---Yes, I did.
PN1884
In order to do those things you must have had access to a computer at work is that right?---Yes, I did.
PN1885
On that computer you had access to the internet didn’t you?---Yes, I did.
PN1886
Serco Sodexo offered to its employees to give them access to computers at work if they needed such access to search for jobs or complete job applications, that’s right isn’t it?---On the emails it was sometimes put out that they could apply, use our computers.
PN1887
You were told that information on emails you received from Serco Sodexo, is that right?---If I recall correctly I did remember reading something about they could send to HR and use a computer that would be accessible to them.
PN1888
**** KAREN NINEHAN XXN MR SAUNDERS
Did you pass on that information to the members in your team?---Everything that was sent to me through email I had to print out and
put for all members to be able to access and read.
PN1889
You did that didn’t you?---Yes, I did.
PN1890
In terms of the email you can recall telling you that people could get access to a work computer. Can you recall what sort of time frame you received that email in, was it the middle of 2014 or what?---No, I don’t remember, sorry.
PN1891
If we work backwards from the end of the contract. The contract for North Queensland ended on 30 November 2014, was it some months
before that that you received the notification telling you employees could access computers at work?
---Yes.
PN1892
Would a fair assessment be August/September, something like that?---I would like to say one or the other but unfortunately I can’t because I’m not sure of the date.
PN1893
When you say one or the other you’re fairly comfortable that it was in that period some time, in August or September some time but you can’t pinpoint a date, is that right?---No, I can’t pinpoint a date and I can’t comfortably say it was August or September.
PN1894
It certainly wasn’t November was it, it was earlier than that?---I believe so but I’m not certain.
PN1895
Are you aware of any employees in your team or anybody else in the workplace making some step or making some request to use a computer
at work?---Yes, there was one employee that didn’t have a computer at home and had requested if we could or they could use
our computer.
**** KAREN NINEHAN XXN MR SAUNDERS
PN1896
That happened, didn’t it?---Sorry?
PN1897
Did the employee who had made that request get access to a computer at work?
---Not my computer, no.
PN1898
Do you know if they got access to somebody else’s computer at work?---No, I don’t believe they did.
PN1899
You don’t know or you don’t believe they did?---I’m uncertain, if they did I don’t know but in my computer in my office no they didn’t.
PN1900
When you received these emails that you had to print out and give to your team members did you hand them personally to team members or did you put them on a notice board or what?---We would do regular team meetings where I would produce emails and then they would be put in my office on a notice board so they were in numerous places for their knowledge and for them to be able to be read.
PN1901
When you talk about regular team meetings how regular, once a week or what?
---Sometimes once a fortnight, sometimes monthly, depending. As the transitional moving forward we would try and keep the staff updated
and check that there was no issues or concerns.
PN1902
So the team meetings became more frequent as you got closer towards transition, is that right?---Yes, that’s correct.
PN1903
You found out about Serco Sodexo’s loss of the Defence contract in North Queensland in about July 2014, is that right?---Yes, it was Kylie Champion that actually told me that Serco Sodexo had lost the contract.
PN1904
**** KAREN NINEHAN XXN MR SAUNDERS
She was a Serco Sodexo supervisor?---Yes, she was.
PN1905
She was also based at the RAAF base in Townsville wasn’t she?---Yes, that’s correct.
PN1906
She told you at that time in about July 2014 that the new contractor was going to be Spotless for your part of the business, correct?---Yes, she did believe it was Spotless who had got the contract but nothing was being signed and (indistinct) being signed it was – as far as everyone including myself and management that it wasn’t secured until it had actually been signed, the contract had been signed.
PN1907
In paragraph 8 of your statement you talk about a video conference, was the video conference the time at which you were told that the contract had been signed and Spotless was for certain going to be the new contractor?---Yes, from what I recollect that was the new contractor for domestic services, but I’m still led to believe that was the preferred tender and they hadn’t signed the actual contract itself.
PN1908
Weren’t you told in the video conference that the winning contractor as Spotless for your part of the business?---That’s how it was shown in the video conference that domestic services had been won by Spotless and they also made the other contractors successful in securing the contracts with SSDS but we were also led to believe that they hadn’t signed anything, so it was very confusing.
PN1909
You were told in the video conference that you should apply on-line with Spotless to get a job at Spotless, weren’t you?---No.
PN1910
You were told in that video conference about an expression of interest campaign that Spotless was running, weren’t you?---I
was told about the expression of interest by Spotless through Kylie Champion who had spoken to James Garner prior to that video conference
if I remember correctly.
**** KAREN NINEHAN XXN MR SAUNDERS
PN1911
So Ms Champion told you that you needed to go onto the Spotless website to put in your expression of interest to be considered for employment with Spotless, is that right?---Yes.
PN1912
So after Ms Champion told you that you went onto the Spotless website and created a personal profile, correct?---When I applied for a position with an expression of interest I did, yes.
PN1913
You did that on your work computer didn’t you?---No, I did not.
PN1914
You did it at home did you?---I did it – I had moved to a property from my residential address so I had no internet, so I used my friend’s house at her property and used her computer to submit my expression of interest.
PN1915
When submitting your expression of interest did you have to put forward a resume or was it just completing a form on the computer?---Just a resume is what - - -
PN1916
You’re aware that Serco Sodexo offered to assist employees with preparation of a resume, aren’t you?---Yes, they did.
PN1917
Did you take up that offer?---No.
PN1918
Did any of the members - - - ?---No, I did not.
PN1919
Did any of the members in your team take up the offer?---No, they did not because the expression of interest was done prior to Serco – before Serco even knew that the expression of interest was there.
PN1920
After the video conference that you attended, you say in paragraph 12 that many employees had not submitted an expression of interest
and were given a further opportunity to do so. You have clarified that this morning by saying that all the RAAF employees had submitted
an expression of interest but the Lavarack employees had not, is that right?---That is correct.
**** KAREN NINEHAN XXN MR SAUNDERS
PN1921
In terms of the employees at Lavarack being given a further opportunity to submit an expression of interest, was that something they were told about during the video conference?---No it wasn’t.
PN1922
Was that a later notification by Serco Sodexo or what?---It was actually – it was a later application by Spotless itself.
PN1923
Don’t you say in paragraph 13 that Serco Sodexo circulated a flier at this time and confirmed that employees would be given a second opportunity to submit the expression of interest?---Yes, it come out through my email that it was actually Spotless letterhead, so it had come from Spotless and then sent through only to Serco Sodexo’s email which I have here.
PN1924
Serco Sodexo passed onto you by email a flier they had received from Spotless by giving people a second opportunity to submit an expression of interest, is that right?---Yes, that’s correct.
PN1925
Do you know whether the employees at Lavarack who had not submitted an expression of interest did so after being given this second opportunity?---Could you repeat the question again please?
PN1926
In respect of the employees at Lavarack who had not submitted an expression of interest in the first instance are you aware that some of those submitted an expression of interest the second time around, once given the second opportunity to do so?---Yes.
PN1927
In paragraph 15 you say that you emailed Linda Stewart from Spotless to indicate that you wanted to be considered for an equivalent
or superior role with Spotless, do you see that?---Yes, that’s correct.
**** KAREN NINEHAN XXN MR SAUNDERS
PN1928
Is that an email you sent from your SSDS email address?---Yes, it was.
PN1929
You did that during work time I take it?---I did that at required lunch break.
PN1930
You say in your statement that you didn’t receive any communication from Spotless as to your success or otherwise in obtaining
employment with them. Did you make any inquiries of anybody at Serco Sodexo about following that up?
---Yes, approximately four days ago I rung HR, Astrid Leibrandt, to ask because I was told by an employee that they had been confirmed
by Serco Sodexo that they were unsuccessful in securing a position with Spotless. So because I hadn’t heard anything and in
an attempt to – and had sent an email to ask if they could let me know whether I was under review or whether I was successful
or unsuccessful I decided I’d ring HR and ask if she had any information in regards to myself.
PN1931
When did you ask Astrid about that?---Approximately five days ago, four, five days ago I rung Astrid.
PN1932
This is after your employment with SSDS had come to an end?---Yes, that’s correct.
PN1933
Did you make any earlier inquiry of SSDS about the status of your expression of interest with Spotless? ---No, I did not.
PN1934
What was Astrid’s response to you when you inquired with her?---She said that she would follow it up because I was interested to know why she was telling people that they were unsuccessful with Spotless when I felt that the responsibility was with Spotless to tell people if they were unsuccessful and I asked that question as well as knowing is she prepared to follow up for myself.
PN1935
**** KAREN NINEHAN XXN MR SAUNDERS
What response did you receive from that? ---Astrid said that she had requested that information from Spotless so peel could have closure.
PN1936
Did you get any closure yourself about your position?---I tried to ring Astrid back two days ago, a day ago to find out if she had heard anything because she said she would get back to me but she hadn’t and I reached her Voicemail but she has not returned that call.
PN1937
Was that a Voicemail you left for her yesterday?---Yes, correct. It was also to update my residential address as well.
PN1938
Did you contact Linda Stewart or anybody else at Spotless to try and find out the status of your application?---Yes, I did.
PN1939
Did you get any response from those attempts?---No, I didn’t.
PN1940
The video conference that you participated in back in July 2014, that was during work time was it?---Yes, it was.
PN1941
Did all employees attend that or was it just for managers and supervisors?---It was for managers and supervisors.
PN1942
How long did it go for do you recall?---I couldn’t give the exact time but it was a lengthy period, approximately I’d say an hour, maybe a bit more.
PN1943
Did anybody from Spotless speak on the video conference or was it just Serco Sodexo managers speaking?---It was Serco Sodexo.
PN1944
During that video conference did the Serco Sodexo managers who were speaking encourage those attending the video conference to submit
an expression of interest with Spotless?---No, I don’t recall they did.
**** KAREN NINEHAN XXN MR SAUNDERS
PN1945
During that video conference there was a discussion about the communication process that would be used, wasn’t there?---Yes, there was.
PN1946
What was said in that regard?---It was said that communications had only just started and they didn’t have really very much information to give us at this stage and that they would update us with all communications as it occurred and it was also about the way we would lead into transition – Serco Sodexo would lead into transition.
PN1947
You were paid for your time attending the video conference, weren’t you?---Yes, because I was requested to attend that.
PN1948
You say that Spotless representatives began attending the site from about 1 September, is that right?---Yes, that’s correct.
PN1949
Did the Spotless representatives come to the RAAF base in Townsville on more than one occasion that you’re aware of? ---I know that they attended and did a brief talk to the employees at RAAF on 2 September.
PN1950
Was that a notice of information session that Spotless were - - - ?---Yes, correct, it was an information session.
PN1951
Did you attend that session?---Yes, I did.
PN1952
Did members of your team attend it?---Yes.
PN1953
All the members of your team attend?---Yes, they did.
PN1954
Was it during work hours?---Yes, it was, (indistinct) requested come to that.
**** KAREN NINEHAN XXN MR SAUNDERS
PN1955
How long did it go for?---Approximately 30 minutes, 40 minutes.
PN1956
So far as you’re aware you and the other members of your team who attended were paid to do so?---Yes, we were.
PN1957
During that information session were you given information by Spotless about the process of obtaining a job with Spotless?---No.
PN1958
What information were you given at the information session?---It was just about the (indistinct) contract, literally if you were successful with Spotless how you’d be paid and so forth.
PN1959
Did they tell you at that information session there would be interviews for Serco Sodexo employees to attend with Spotless? ---That wasn’t discussion on work interviews, they made mention of work interviews.
PN1960
Did they tell you – that is did Spotless tell you at that information session that all Serco Sodexo employees who submitted an expression of interest would be given an interview for a job with Spotless?---No, I don’t recall them saying that.
PN1961
Did you attend an interview with Spotless?---No, I did not.
PN1962
Were you invited to attend an interview?---No, I was not.
PN1963
Were members of your team invited to attend an interview with Spotless?---Yes, they were.
PN1964
Have many of them been offered a job with Spotless?---Could you repeat the question please?
**** KAREN NINEHAN XXN MR SAUNDERS
PN1965
Yes, have many of your team members been offered a job with Spotless?---Yes, they have.
PN1966
Do you know how many out of the 14 have been offered a job?---Yes, 13.
PN1967
13 out of 14?---Yes, that’s correct.
PN1968
Do you know why the fourteenth person didn’t get offered a job?---No, I have no idea.
PN1969
The 14 members of your team they all attended an interview with Spotless at their work site, is that right?---At Spotless’s – I’m not exactly sure but it was (indistinct) it wasn’t on this.
PN1970
Was it during work hours?---Yes, it was.
PN1971
Were the employees who attended those interviews in work hours paid for their time in doing so?---Yes, I’m led to believe they were.
PN1972
How long did the interview process take, do you recall?---It was approximately two and a half hours.
PN1973
Including travel time to and from interview or is that just interview process itself including?---Yes, including travel time.
PN1974
Did you attend any consultation sessions run by Serco Sodexo in connection with the loss of the contracts?---Just (indistinct) meeting.
PN1975
When was that?---I can’t recall the actual date of the meeting, 25 September.
**** KAREN NINEHAN XXN MR SAUNDERS
PN1976
25 September, this is a meeting at the workplace is it?---Yes, requested by management that we attend it.
PN1977
Who from management attended?---All 10 leaders from Lavarack and RAAF, all supervisors from all service lines attended.
PN1978
What was the subject of discussion at that meeting?---Just in how were we coping with the transition and the uncertainty of people whether they – you know if they got a position or would lose their position and just generally how they were coping.
PN1979
That was during work hours I take it?---Yes, it was.
PN1980
You were paid to attend it?---Yes, I was.
PN1981
Was an offer of assistance made at that meeting in relation to employees seeking jobs with incoming contractors?---No.
PN1982
Apart from that meeting you told us about on 25 September did you attend any other consultation meeting where anybody from HR from Serco Sodexo provided information about the loss of the contracts and the new contractors coming on board?---Not that I can recall.
PN1983
Do you recall Lisa Walsh from Serco Sodexo’s people and culture team, HR team, visiting the RAAF base through the second half of 2014?---A couple of occasions, yes.
PN1984
Do you recall Ms Walsh offering support and assistance throughout the transition process and answering questions that anyone might
have?---Yes, one meeting Lisa conducted at RAAF base.
**** KAREN NINEHAN XXN MR SAUNDERS
PN1985
When was that?---I could not recollect or recall the exact date of that meeting, I’m sorry.
PN1986
Can you recall whether it was before or after the 25 September meeting you’ve told us about?---Yes, I believe it was.
PN1987
Before or after, which one?---After I think, I’m uncertain I’m sorry.
PN1988
Can you recall how long after, for example October?---Not really, I can’t give an accurate time, there was a lot going on in that time I’m sorry.
PN1989
I understand. Was that a meeting just for supervisors and team leaders or was it a meeting for everybody to attend?---That was for everyone to attend, she wanted to accumulate some information from staff as well.
PN1990
What information did she ask for from the staff at that meeting?---If I remember correctly she’d asked for – she’d done a hand out on information for the staff and their resumes and she just asked why they wanted that information to possibly handle (indistinct) if it was requested.
PN1991
Can we just take that through a bit more slowly. Was it she was handing out information to employees at that meeting or she was asking them for information?---She gave them a hand out, paperwork for them to fill out and then she’d also – that was the meeting that she discussed why it would be in their best interests to fill out the paperwork and hand it back with their resume to Lisa Walsh. HR.
PN1992
Do you recall whether the paperwork she was handing out was called a consent to release form or something like that?---Yes, that would be correct, yes.
PN1993
**** KAREN NINEHAN XXN MR SAUNDERS
Did you provide you consent by filling out such a form?---No, I did not, no I didn’t.
PN1994
Do you know if any of you team members did?---Some did, yes.
PN1995
Why didn’t you?---Because I’d already done an expression of interest with Spotless and they had all the information that literally HR was requesting so I also read on the Spotless release that if you’ve done an expression of interest you do not have to do anything further. So I didn’t believe it was necessary.
PN1996
The meeting you attended where Lisa spoke that was during work hours was it?
---Yes, it was.
PN1997
How long did it go for?---20 minutes, approximately 20 minutes.
PN1998
You were paid and so far as you were aware your team members were paid for attending it?---Yes, we were.
PN1999
She offered to those in attendance to ask any questions they had about the transition process or getting a job with a new contractor, that’s right isn’t it?---I couldn’t be exactly sure on that, it was more about filling out the release of information and getting the information together so that if Spotless requested it that she would have that information there to give to them.
PN2000
Do you recall yourself asking Lisa some questions at that meeting?---No, I don’t remember any specific questions being asked of me at that meeting.
PN2001
Do you recall asking Lisa at that meeting questions about redundancy payments?
---No, I don’t.
PN2002
**** KAREN NINEHAN XXN MR SAUNDERS
Do you recall asking Lisa questions about redundancy payments at any time?
---Possibly they had a discussion about redundancy payments but I don’t believe I ever actually sat there speaking with Lisa
Walsh about redundancy payments. There might have been a discussion that the staff had asked something, but I really don’t
remember me discussing specifically about redundancies.
<RE-EXAMINATION BY MR BULL [12.43PM]
MR BULL: One matter arising quickly. You mentioned that other people within your group had interviews with Spotless, who applied?---Yes.
PN2004
To your knowledge were there any other people within your group who applied and like yourself didn’t get an interview?---(Indistinct) referring to (indistinct).
PN2005
Anywhere?---(Indistinct).
PN2006
Anywhere?---Yes, I do believe there was quite a few people that didn’t get an interview.
PN2007
Who made an application?---Yes, that’s correct.
PN2008
Nothing further.
PN2009
THE COMMISSIONER: Thank you for your evidence today. We don’t need you to stay any longer, so thank you for attending.
PN2010
MR BULL: Thank you, Karen?---Thank you very much.
**** KAREN NINEHAN RXN MR BULL
<THE WITNESS WITHDREW [12.44PM]
THE COMMISSIONER: Before we adjourn for lunch perhaps Mr Snowball have you had a chance to progress this matter of the information that you were seeking arising from the witness yesterday?
PN2012
MR SNOWBALL: Yes, we have and we have provided a draft order to the company, it was only provided this morning so I don’t know if they’ve had a chance to consider it and provide feedback yet.
PN2013
THE COMMISSIONER: Okay.
PN2014
MR SAUNDERS: Commissioner, I can address on that matter now if it’s convenient?
PN2015
THE COMMISSIONER: Yes.
PN2016
MR SAUNDERS: My friend is right, we did receive the draft order this morning just before court started and there are two categories of documents sought in the order for production. The first is a copy of a statement or other like document of Michael McKinnon sent to Trevor Marriott or any other employee of SSCS on or around 1 December 2014, it’s the statement Mr McKinnon talked about yesterday.
PN2017
THE COMMISSIONER: Yes.
PN2018
MR SAUNDERS: We have no objection to providing that document, we can produce it today to the Commission and it will be available to anybody, it can be tendered or whatever anybody likes, that’s fine.
PN2019
THE COMMISSIONER: Yes.
PN2020
MR SAUNDERS: The second category of documents we object to. The second category is in these terms. Any correspondence between Trevor Marriott or any other SSDS employee or representative and Michael McKinnon or any other MSS employee or representative relating to or referencing the statement referred to in paragraph 1. It’s apparent just from reading that schedule it’s an extremely broad category. I don’t know what there is that might fall under that category or not, it would require a significant amount of searching to be done because we’re not talking just about Trevor Marriott and others, we’re talking about anyone from SSDS or any representative, anyone from MSS or any representative. No time period specified apart from what would have to be after the date of the statement. It’s a very broad ranging search or fish for documents.
PN2021
But what’s certain is that if we’re – and we oppose that part of the order for production – if we’re ordered to search for those documents and produce them, what will inevitably follow is it will be necessary for us to put on a further witness statement and the reason it would be necessary to do that is because it would be artificial just to look at some emails in relation to this topic without getting the full picture about what’s going on here. Because the way in which this all arose is that the order for Mr McKinnon and MSS to give evidence and to provide a witness statement was an order the NUW sought on 4 December this year and was made.
PN2022
THE COMMISSIONER: Yes.
PN2023
MR SAUNDERS: Prior to that time we had no idea whether the NUW was going to seek such an order, and so prior to that time we had made inquiries with incoming contractors about whether they would volunteer to provide a statement in the proceedings on which we would rely. That process was in train before the order was sought by the NUW, but then the order was sought by the NUW and that overtook any inquiries we had made because people were compelled to come along and give evidence and produce a witness statement and that’s what they did, so our inquires stopped as one would expect.
PN2024
But it would be artificial just to look at a couple of emails at points in time and then make some sort of submission about what impact they might have had without us having the opportunity by way of a witness statement to explain what was going on in a fulsome way in this period and that will inevitably require Mr Marriott to put on a further witness statement, there will be more cross-examination about it no doubt and we’ll be back here dealing with it next year. In my submission that’s not going to assist the Commission to resolve the questions it has to resolve in these proceedings. It is not an appropriate use of the Commission’s time or resources and if we’re going to go into that kind of inquiry about the preparation of witness statement we will seek an order for production of similar communications in relation to every witness statement put on by one of the unions, communications between witnesses and union people about how they were all prepared and we will go down that very inquiry if we have to, but that’s not going to assist anybody and that’s taking this matter off on a side show which would not be in the best interests of the Commission or the best interests of any party in terms of using resources in that way. As I said, we can seek to provide the statement, we will produce it today, it can be tendered, but if it’s going to go into the second category of documents we object on the basis of relevance and fishing and the need to prolong the proceedings in the way I’ve described. So that’s our position in relation to those matters.
PN2025
THE COMMISSIONER: Certainly – I will hear from Mr Snowball about the second category of matters in a moment, but in terms of the statement I think it would be useful if it was provided and if it can be tendered this afternoon. If you do have a copy it might be useful to give it to Mr Bull and Mr Snowball so if they want to say anything about that in the submission then at least they’ll have the opportunity so I think we should certainly do that if you can.
PN2026
MR SAUNDERS: We’ll have it by email and we can forward it to the parties and to your Associate right now.
PN2027
THE COMMISSIONER: That would be terrific, yes okay, so let’s do that but let’s hear what Mr Snowball has to say about the other matters?
PN2028
MR SNOWBALL: Commissioner, if the applicant is willing to provide the statement then I take Mr Saunders’ point and I agree that the case is unlikely to turn on anything that’s produced in terms of point 2 of the schedule, so we are happy to concede on point 2 and no longer seek for those documents to be produced.
PN2029
THE COMMISSIONER: Thank you. That resolves that matter. Just before we break, because I know Mr Snowball probably has to make travel arrangements and just so we know where we’re at, can we just get some estimate of how you the parties think they might be in submissions this afternoon?
PN2030
MR SAUNDERS: My best estimate, and I’m probably an under-estimator in these things, is that I’ll be about 40, 45 minutes in oral address.
PN2031
THE COMMISSIONER: Okay, thank you.
PN2032
MR BULL: I’ll try and be briefer than that, so about 20 minutes.
PN2033
THE COMMISSIONER: Very well.
PN2034
MR SNOWBALL: I’ll probably only be about 10 or 15 minutes and I am actually here until tomorrow so there is no time limit placed on me.
PN2035
THE COMMISSIONER: That’s all right.
PN2036
MS BERRY: I’m not.
PN2037
THE COMMISSIONER: I’m sorry, Ms Berry, I know you probably want to get home so I should have remembered that. All right, so - - -
PN2038
MR BULL: You can limit Mr Saunders in the amount of time he speaks, that might be a good idea.
PN2039
THE COMMISSIONER: That’s up to Ms Berry. We will resume at two o’clock and we will anticipate we will be finished by four.
<LUNCHEON ADJOURNMENT [12.52PM]
<RESUMED [2.00PM]
PN2040
THE COMMISSIONER: I’ve got the statement of Mr McKinnon which was referred to – which is dated 1 December and was referred to in his evidence.
EXHIBIT #SERCO20 WITNESS STATEMENT OF MR MCKINNON
THE COMMISSIONER: I have also received an outline of submission from Serco and there was a table attached to that which was of the wage rates which compares the wage rates from the Serco instruments – the Serco ECA with the rates as they understand it are applicable for the various contractors. That wasn’t attached to the original version but it’s subsequently been provided and we also have a submission that’s been provided by the NUW. So we might hear from Mr Saunders first please.
PN2042
MR SAUNDERS: Thank you, Commissioner. We would rely upon the written submissions that have been filed in the Commission and served on the parties. I wish to supplement those written submissions with some oral submissions in light of the evidence that’s been given over the past two and a half days. Might I start first with MSS, I want to address each of the four incoming contractors and then say something about the assistance given to employees as opposed to the incoming contractors and then finish with saying something about discretion under section 120 of the Act. The starting point is the incoming contractors and the first one I want to address is MSS. Mr McKinnon gave evidence yesterday that it was always MSSs intention to employ as many Serco Sodexo employees as possible.
PN2043
We anticipate the unions will contend that in light of that evidence it did not matter that MSS interfered into the MOU with Serco Sodexo, or that Serco Sodexo paid money to MSS under the MOU, or that Serco Sodexo took any of the steps it took pursuant to the MOU because we anticipate it will be contended that MSS always intended to employ as many Serco employees as possible. But any submission to that effect would be flawed because there is a material distinction between on the one hand someone having an intention or an objective to do something and on the other hand actually achieving that intention or objective. Whether or not the intention can be achieved depends on a range of factors. As Mr McKinnon made clear when he gave evidence this time around and last time around, one of the factors which influences whether an outgoing contractor can achieve its intention or objective is the extent to which it can depend upon and be assisted by the acts and conduct of the outgoing contractor and the extent to which the outgoing contractor provides information, assistance and access to employees.
PN2044
He says that has a material impact on whether MSS can succeed in employing as many Serco employees as possible. Mr McKinnon gave evidence on the last occasion and this occasion that the information, assistance and access to employees provided by Serco Sodexo to MSS resulted in MSS being able to employ more employees, more Serco employees than would have been the case if Serco Sodexo did not take those steps. The genesis of the steps that SSDS took to get as many as possible of its employees employed by MSS is the MOU it entered into with MSS. The MOU is clear and unambiguous in its terms, its terms are recorded in writing, they’re legally binding on the parties to the MOU and the bargain struck between Serco Sodexo and MSS as recorded in the terms of the MOU is in essentially the following bargain.
PN2045
First, Serco Sodexo promised to pay money to MSS for every Serco Sodexo employee employed by MSS. Secondly, Serco Sodexo promised to provide access to its employees’ information and assistance in their recruitment process, and in exchange for those promises what MSS provided was a promise to give Serco Sodexo employees a priority and a preference in getting employment with MSS. They are the essential elements of the bargain struck between the parties as recorded in the MOU. The preference and the priority that MSS gave to Serco employees as a consequence of the MOU was real. It meant that every Serco Sodexo employee who passed the MSS employment criteria was offered a job regardless of whether or not they were the best person for the job.
PN2046
The best illustration of that principle is the evidence given by Mr McKinnon yesterday when he said that if he had one Serco Sodexo employee who met the MSS employment criteria and he had also an external applicant who met the MSS employment criteria and who was the better candidate, the better candidate in the SSDS employee, then notwithstanding the fact that the external candidate was the better candidate the Serco Sodexo employee would get the job. That’s the clearest demonstration of priority and preference one could ever see in my submission. Mr McKinnon also said that Serco Sodexo employees were given priority and preference over external applicants because they were given the opportunity if they failed the medical, to put forward a medical plan to satisfy MSS that they were medically able to do the job. Mr McKinnon said that external applicants weren’t afforded that opportunity and the opportunity afforded to Serco’s employees in that regard resulted in a number of them who had filed the MSS medical providing MSS with a medical plan which satisfied MSS and subsequently resulted in those employees being offered employment and employed by MSS.
PN2047
Mr McKinnon did say in evidence that the medical plan issue was not expressly covered by the terms of the MOU but he said in answer to questions in cross-examination that the opportunity to allow the Serco employees to put forward the medical plan was provided by MSS because of the commitments made by MSS in the MOU. In his witness statement, NUW10, Mr McKinnon said at paragraph 2W on page 3, “As with earlier regions, MSS provided a priority and preference for SSDS employees as a result of the MOU with SSDS and the extensive assistance SSDS provided to MSS throughout the recruitment process.” It was not put to him in cross-examination in his evidence at all that that statement was wrong or was the case in any way. Mr McKinnon’s evidence in that regard should be accepted in my submission.
PN2048
But it not having been put to him that it’s wrong or not correct it’s not now open to any party to make a submission to the Commission to the effect that the priority and preference given by MSS to Serco’s employees was only related to one connected with the MOU or the steps taken pursuant to it. In terms of the impact of the MOU and the steps taken pursuant to it has had on the likelihood of Serco employees in fact being employed by MSS, the effect of Mr McKinnon’s evidence was that the MOU has had a material impact on two levels. The first, Mr McKinnon said that the MOU by its terms in promising money to MSS for each employee – each Serco employee employed gave MSS a greater incentive than it otherwise would have had to employ Serco’s employees.
PN2049
Secondly, Mr McKinnon said that the terms of the MOU meant that MSS couldn’t make a more attractive offer to employees than it could make to external applicants, for example, and therefore make it more likely that those recipients of the offer would accept them rather than go off to some third party and take employment there and the more attractive aspects of the offer that could be made by reason of the MOU were the recognition of service for the purpose of long service leave and the credit of five days personal leave provided up front at the commencement of the employees’ employment. In light of Mr McKinnon’s evidence or the evidence led by Serco Sodexo in relation to MSS, there can’t be any doubt in my submissions that SSDS was a song moving force towards the creation of the available opportunity for Serco Sodexo’s employees with MSS and the result that Serco Sodexo obtained employment with (indistinct) employees with MSS in the relevant sense.
PN2050
Before I move on to the other three contractors I want to say something about the concept of the strong moving force. That is obviously a phrase that was used by the full bench of the Commissions in Durrell Nominees and has been applied in many cases since. The phrase used by the full bench in Durrell Nominees was used to describe the level of causation needed between the efforts of an employer to assist its employees to get alternative employment and the offer of the job to the employees. In my submission it is erroneous to ask whether a fact that an employer has a demand for a particular type of labour is a strong moving force behind the creation of an opportunity because the answer to that question is always going to be yes, an employer is never going to employ somebody unless it has a demand for the labour.
PN2051
Similarly its erroneous to ask whether the fact that an employee has the skills and experience necessary for a job is the strong moving force behind the creation of the available opportunity because again the answer to that question is always going to be yes, that is no employer would offer employment to somebody that didn’t have the requisite skills and experience. Those factors are always going to be relevant and present. What the full bench does in Durrell Nominees is make clear that the strong moving force is the test of causation between an outgoing employees efforts and the offer of the job or the getting of the job by the employee, that’s the necessary inquiry. In terms of the application of that test it’s been applied many times since Durrell Nominees and most recently in the decision of the full bench and MUA v. FBIS the same test was applied.
PN2052
In paragraph 54 of that judgement, I don’t need to read it to the Commission, but I can provide the reference, in paragraph 54 of that judgement there the full bench looked at the actions of the respondent FBIS and considered whether those actions in assisting the employees met the test of it being a strong moving force towards the creation of the opportunity and in the end in the result the full bench held that it did not but it applied the Durrell Nominees test and in doing so we say it applied the right principle. Earlier in the judgement the full bench referred to Justice Marshall’s decision in Teletech v. Ormond in which Justice Marshall had to decide whether an outgoing employer had arranged alternative employment, not obtained it but arranged it. In considering that question Justice Marshall posited a different test from the test put forward by the full bench in Durrell Nominees. His Honour found in that case that the relevant test was whether the outgoing employee had secured employment for the employees.
PN2053
By securing employment for the employees is a different and higher test than examining whether the actions of the employer to assist the employees to get alternative work was a strong moving forward towards the creation of the opportunity. Although the full bench referred to Justice Marshall’s decision at paragraphs 44 to 46 of the full bench decision in MUA v. FBIS it’s apparent from paragraph 54 of the full bench decision that it didn’t apply that secure test, it applied the Durrell Nominees test. In the event that in this case any party submits that the appropriate test to apply is the secure test that Justice Marshall referred to, we submit that is not the right approach to take. We first say that is not the test applied by the full bench in FBIS. In the alternative if the Commission comes to a different view and finds that the full bench did apply that secure test, the high threshold, our submission is it was wrong to do so for two reasons.
PN2054
First the question before Justice Marshall was whether the employer arranged the employment. His Honour didn’t determine whether the employer obtained employment and because Justice Marshall was considering a different question it’s not binding on the Fair Work Commission. Secondly, in applying a test of secure employment, fi that kind of test is applied when looking at obtaining employment, then section 120 of the Fair Work Act has very little if any work to do because if the secure employment test is the one applied it’s only going to be satisfied in the rarest of circumstances, that is where the incoming employer and the outgoing employer have an areemtns whereby the incoming employer agrees to take on all of the employees on a job lot basis without looking at any of them. That theoretically can happen, it’s very rare for it to happen.
PN2055
Looking at all the cases referred to in our submissions it’s not happened in any of those cases and if the secure test was applied to any of the facts in Durrell Nominees or Vice President Lawler’s submission in Datacom, or any other case referred to in our submissions, it would not be satisfied. Leaving now to Spotless, the second incoming contractor in this case. The evidence of Ms Pianta both on the last occasion in relation to New South Wales and ACT and on this occasion in relation to North Queensland was that very early on in about July 2014 Serco Sodexo and Spotless made an agreement. As part of that agreement Serco Sodexo promised to give Spotless direct access to its employees, information about its employees and operations and assistance in recruiting its employees and Ms Pianta said that as part of that agreement Spotless gave a commitment to SSDS that it would interview every Serco Sodexo employee who applied for a job with Spotless. That was a commitment it gave to Serco Sodexo.
PN2056
Spotless did not provide that commitment to external applicants, only to Serco Sodexo employees and Ms Pianta said in her evidence that Spotless’s strategy initially was to put out the expression of interest at a very early time to see what level of demand for jobs there was and also to see what kind of relationship Spotless could establish with Serco Sodexo before deciding on its recruitment strategy. Ms Pianta then said that it had a strong response to the expression of interest campaign, and so I could have recruited solely on that basis if it chose to, but Ms Pianta said that it was able to and did establish a strong relationship with Serco Sodexo at an earlier time and secure the commitment by Serco Sodexo to provide the direct access to the employees, the information and the assistance.
PN2057
Ms Pianta went on to say that as a result of that Spotless changed its strategy, from just using an expression of interest campaign to one whereby it decided to provide priority to SSDS employees and to go to them first before considering external people, to interview them first and consider them first before going to external people. The effect of those commitments made by Spotless as part of that agreement reached back in July 2014 was to give Serco Sodexo’s employees a priority and a preference over external applicants in getting a job. The priority and preference they had was looking at them first to fill the vacancies and Spotless promising to interview every Serco Sodexo employee who wanted a job. External people did not get that benefit.
PN2058
In our submission it is clear from the evidence given that the priority and preference Spotless gave to Serco Sodexo’s employees and all the steps that Serco Sodexo took to provide Spotless with direct access to its employees, information about its employees and operations and assistance throughout the recruitment process was a strong moving force behind the creation and opportunity for Serco Sodexo’s employees with Spotless. The next incoming contractor is Compass. First there was a commitment made by Serco Sodexo very early on in about July 2014 to provide direct access to its employees, information and assistance in the recruitment process to Compass. Sorry, Serco Sodexo had no legal obligation to take any of those steps to assist Compass or its employees to get a job with Compass.
PN2059
As well as the commitments made by Serco Sodexo and the steps taken pursuant to those commitments, there were also commenters given by Compass and the comments given by Compass weren’t’ just given to Serco Sodexo’s employees, their commitments were given by Compass to Serco Sodexo and the commitments given either at the July meeting Mr Hines said or shortly thereafter was a commitment to interview every Serco Sodexo employee who wanted a job and again that commented was not given by Compass to external applicants. The commitment by Compass to interview all the Serco Sodexo employees who wanted a job gave them a priority and preference over external applicants getting a job with Compass. Again when one puts together all of the actions SSDS took in helping its employees get a job with Compass and all the actions SSDS took in acting Compass in its recruitment of Serco Sodexo employees, we say the conclusion is that Serco Sodexo was a strong moving force towards the creation of the available opportunity for Serco Sodexo employees from Compass.
PN2060
Finally Transfield, Transfield is in a slightly different situation particularly in this contract because Serco Sodexo provided more limited assistance to Transfield than it did to the other three contractors, there’s no doubt about that. That was done because Transfield did not want the assistance for it was fearful of a transfer of business. The extent of the assistance provided by Serco Sodexo to Transfield is set out in the Serco Sodexo witness statements, most particularly in Mr Merrick’s statement. As well as that assistance that Serco Sodexo provided to Transfield it is necessary to look at the efforts of Serco Sodexo in assisting its employees to get a job at Transfield. There are obviously two levels, one is the assistance provided to the incoming contractor and the other level is the assistance provided to the employees. The efforts that Serco Sodexo made to assist its employees to get a job with Transfield and each of the incoming contractors were real efforts.
PN2061
They took significant time and effort on Serco Sodexo’s part, they involved significant cost in terms of labour and resources and part from having an obligation to consult with employees about change and giving employees a right to take time off during their notice period to pursue other employment, Serco Sodexo had no obligation to take any of the other steps it took of which there were many to assist its employees to get work with the incoming contractors. Those steps are set out in detail in both our written submissions and our witness statements and I won’t go through them again now orally. We say those extensive steps plus the limited extent of assistance we were able to give Transfield, putting all those matters together its apparent in my submission that Serco Sodexo was a strong moving force towards the creation of the opportunity for Serco Sodexo’s employees with Transfield.
PN2062
In terms of the steps that Serco Sodexo took to assist its employees to get work with the incoming contractors there was some criticism in Mr Snowball’s cross-examination of Serco Sodexo’s witnesses to the effect that they did not track or record whether employees in fact took up the extensive measures made available to them. In my submission the cross-examination along those lines demonstrates no realistic view of the world and the way in which a business or organisation operates. In the real world you don’t have people running around with a clipboard marking off an employee every time they read a notice board or every time they attend a meeting or a session at which they are provided with assistance. We have a situation here where as a result of a decision by the Commonwealth government Serco Sodexo has lost contracts and has had to make about 2,000 employees redundant.
PN2063
Serco Sodexo in those circumstances could have simply taken the bare minimum obligation and said okay, we’re going to consult with you about change and we’re going to give you a chance to take time off during the notice period to look for a job if that’s what you want to do but we’re not going to provide any other assistance. It’s (indistinct) if Serco Sodexo is unsuccessful in the current applications before the Commission that is exactly what employers will do in the future because there would be no incentive at all, the threshold obtained would be so high there would be no incentive at all for companies such as Serco Sodexo to take real and substantive steps with real resources, time, effort and money to assist employees to get jobs. That’s exactly the point that Commissioner Williams made in Aztec Steel, that if you put the threshold too high that’s the effect of it on outgoing employers and the effect of it as well in terms of having the threshold obtained too high is that employees in some circumstances can get a windfall bonus.
PN2064
That is you could have a circumstance where if the threshold test obtained is too high you can have a circumstance where there’s a finding that the outgoing employer did not obtain employment for the employee, but the employee can be doing exactly the same job the next day on the same or comparable terms and conditions, sometimes with complete continuity of service, yet in those circumstances if the threshold obtained is too high the employee gets a redundancy payment as well and in those circumstances it must be considered to be a windfall and it’s not what section 120 is designed to achieve. On any view of the facts in this case Serco Sodexo did not simply consult with its employees and then give them time off during the notice period to find work themselves. It did far more than that base minimum legal obligation. IT provided the employees with a whole range of information, tools and real assistance to get a job.
PN2065
It was not compulsory for the employees of Serco Sodexo to participate in any of the measures or offers that Serco Sodexo made or put out to its employees to assist them. There are no circumstances it was appropriate for Serco Sodexo to measure the effectiveness of the information it was putting out and the assistance it was offering to the employees by considering as it did the feedback it received from managers who were on the ground and employees who were receiving this information or this assistance to work out whether the measures being put forward were effective rather than tracking in some scientific way every time an employee read a notice board, every time an employee participated in a meeting or workshop or an event. As Ms (Indistinct) explained yesterday the feedback that Serco Sodexo received from managers on the ground and from employees was that employees were receiving information and many of them were participating in some or all of the meetings, workshops and events offered to them to assist them to get a job.
PN2066
So on the basis of Ms (Indistinct)’s evidence and the other evidence referred from feedback about what was going on, the offers and the measures put out by Serco Sodexo to assist employees were being taken up by them and messages were getting through. That’s all I wish to say about the obtained point. I just want to make a few comments about the exercise of discretion if we get that far under section 120 of the Act. It’s apparent from the authorities, in particular Vice President Lawler’s decision in Datacom that part of the purpose of redundancy pay is to compensate an employee on the loss of non-transferable credits. Vice President made clear in Datacom that long service leave is by far and away the most significant non-transferable credit that an employee may lose if they’re made redundant and are employed by a new employer.
PN2067
In terms of the Serco Sodexo employees who have been made redundant by the company and then reemployed by MSS, they of course don’t lose any of their long service benefits by reason of the MOU and the payments made thereunder by Serco Sodexo to MSS in respect of long service leave credits. But that’s not the only case where employees have their long service leave entitlements protected entirely, there is also legislation in Queensland, as there is in New South Wales and the ACT whereby cleaners employed in the contracting industry have portable long service leave entitlements which they carry from one employer to the next. That happens because the employers such as Serco Sodexo are required to and do pay them out each quarter into a long service leave fund which travels with the employee to the employee when they change from one job to another and one contractor to a different contractor, still have their long service leave accruals and those long service leave entitlements.
PN2068
In Queensland the appropriate legislation is the Contract Cleaning Industry (Portable Long Service Leave) Act 2005 Queensland. In circumstances where employees are made redundant, they’re employed by a new contractor but they don’t lose any of their long service leave entitlements, whether it be because of the MOU with MSS or whether it be because they are cleaning employees engaged most likely by Spotless. That factor weighs heavily in my submission in the exercise of discretion under section 120 of the Act. I’m eight minutes quicker than I expected to be. So unless I can assist any further that’s all I wish to say.
PN2069
THE COMMISSIONER: I just have two questions of you. One is in respect of the submission you make about Spotless and the commitment that they gave to interview all applicants, what do you say about the evidence of Ms Ninehan that she applied for the job but she didn’t get an interview and also her indirect evidence that she was aware of others that were in that situation?
PN2070
MR SAUNDERS: The evidence doesn’t tell us why she didn’t get an interview with Spotless. It’s plain that she did not and it’s plain that on her evidence she put in an expression of interest, but even though inquiries have been made the evidence just doesn’t tell us and we don’t know why she didn’t get an interview. One possible reason why she didn’t get an interview is she was at a higher level, a team leader level than others and the commitment may not have extended that high but that already is just an attempt to try and explain why she’s in that category, the evidence doesn’t tell us otherwise. In terms of the second part of the question I’ve been asked, in my submission the Commission wouldn’t place very much weight on evidence of that kind because in order for evidence of that kind to substantiate the fact we would need to know as a matter of fact whether those people she’s talking about did in fact put in an expression of interest in circumstances where employees have been at pains to say that that was something they decided of their own volition to do, Serco Sodexo had no involvement in who put in an expression of interest and a lot of people did it at home.
PN2071
It would be very hard for Ms Ninehan to actually know as a matter of fact whether other people in fact put in an expression of interest and we would need to know that to make that inquiry (indistinct). It was evidence given in re-examination, it was not evidence that we were given notice of and therefore couldn’t test in any way and I’m not critical of that coming out in re-examination, sometimes it happens in that way but that’s the reason why we haven’t been able to follow it up and test it further. That’s all I can say on that.
PN2072
THE COMMISSIONER: My other question was when I look at your submissions about the obtained point and the authorities to which you’ve referred previously, it does seem that this particular case has some unique features. The previous cases have all been about defining individuals, in some cases there has been a number of those defined individuals. But there have been as you correctly pointed out some cases that relate to contracting situations and some cases that don’t relate to contracting situations and I agree there is reason to distinguish those to some extent. But this case seems to me to be unique in the sense that it is about looking at a contracting transfer situation in a broad sense rather than in a more narrow, specific sense and I just wondered if there were other cases that you felt were similar to this case in terms of its scope and lack of specificity for particular individuals. I’m not saying that’s a barrier to the case or anything but I’m just saying I’m interested in that.
PN2073
MR SAUNDERS: I’m just not sure – the reason I’m hesitating I’m not sure I’m following the point about the broad sense or the narrow sense.
PN2074
THE COMMISSIONER: If you look at the roll, for example, there were – I don’t know, 20-odd employees involved, but a list of employees that the roll said they had found alternative employment for, and there’s been a range of other cases where the employer spoke to their brother-in-law or their friend who had another business and said can you assist by taking this employee and there’s a list of those named employees. I’m just saying this is the only case I’m aware of where there’s not a named list of particular employees in respect of whom you can follow the particular evidence of what the employer has done in respect of each of those employees. That’s the issue I make, I’m not suggesting in any way that means this case is improper or you can’t make the same points or submissions you’ve made, but I’d just be assisted if there are other cases that are similar to this one in that respect, that’s all.
PN2075
MR SAUNDERS: I understand the point, thank you. I’m not aware of any other case of the kind we’ve just spoken about. I think largely that’s for practical reasons is that it’s very real for 2,000 people to have to make – be made redundant as a result of large contracts. But for the others, the Datacom for example, there’s a decision of (indistinct) two or three employees are affected, that the process goes through and you have specific evidence about what happens for each of those two or three people. But here if we had taken that approach it just would be impractical to do it. It’s one of those cases it would take years to do it, you’d have every person coming through the door, so that’s just not a practical approach to the problem before us.
PN2076
THE COMMISSIONER: I understand that.
PN2077
MR SAUNDERS: But in terms of a matter of principle, that doesn’t impact in my submission on the principles that need to be applied or the examination of the steps that Serco Sodexo has taken either to assist the employees or to assist the incoming contractors. But then it’s a matter of looking at those steps and looking at whether there is a necessary causal connection between those steps at those two levels with the offering of the job to the employees and that’s where we are at a slight disadvantage because we don’t have everybody coming through the door giving that evidence. But where we’ve got clear details of the steps that were taken by the company and then the end result, like all questions of causation it’s a question of commonsense at the end of the day about whether those steps that were taken have a material impact on the outcome.
PN2078
THE COMMISSIONER: Yes.
PN2079
MR SAUNDERS: But in terms of other cases that have faced this similar problem I can’t assist the Commission with that because I’ve looked but I’ve not found any others in that same sort of category.
PN2080
THE COMMISSIONER: Thank you. Are we going to hear from Mr Bull first?
PN2081
MR BULL: We might as well. I’ll try and be brief. I was going to just maybe address the issue of - Mr Saunders has repeatedly spoken about the Durrell test and the test that Justice Marshall has expressed in Ellman v. TeleTech as being somehow in conflict. They’re not in that Ellman v. TeleTech didn’t say that Durrell Nominee was wrong, and neither did the full bench recently in FBIS v. TeleTech. I find this area, there’s a certain sort of word play which I find irritating and confusing in that we’re dealing with something which is inherently for want of a better term fuzzy. The terminating employer is interposing itself in the employment relationship of other parties and its always going to be limited in terms of what it can do.
PN2082
So I perhaps make the trite point that the only words that really matter are the words of the statute, the words that you have to
apply in terms of the threshold. So it’s obtaining acceptable work when we’re dealing with this threshold issue which
we’ve determined is the appropriate manner in which to deal with this matter. So I just make that point, setting up these,
if you like, false dichotomies are frankly inappropriate. No one said Durrell Nominees is wrong. The full bench hasn’t, Justice
Marshall hasn’t. It’s an older case and the fact that you can theorise that it might be decided differently in a highly
discretionary jurisdiction frankly means nothing. So I just make that point. The other point I was going to make, and this is once
again trite, we are dealing with section 120 applications, they’ve been made after the termination date. They’ve been made in the
context - - -
PN2083
THE COMMISSIONER: The application is made - - -
PN2084
MR BULL: I’ll withdraw that.
PN2085
THE COMMISSIONER: - - - before.
PN2086
MR BULL: They’ve been made – they’ve been determined after the termination date.
PN2087
THE COMMISSIONER: Yes.
PN2088
MR BULL: They’ve been made in the context of the fact that the Commonwealth government has decided to change service providers in Defence servicing which is a large area of government service. The evidence is consistent that the true identity of the incoming contractor or their legal statutes as the incoming contractor was known in August this year and there were varying levels of brevity in terms of the time that there was to basically engage staff. This applies to Queensland as it does to New South Wales and the ACT and this is not a criticism of the applicant. It is a factual statement in my submission of the correct way to characterise the process. The process was rushed and disorganised, that was not the fault of the applicant principally, it was the fault of the circumstance that was imposed upon it by the Commonwealth in that there was little notice of – well, from my understanding the way the Commonwealth tends to work is that it has a tendering process where it narrows down the tenders and you get preferred tenderers.
PN2089
So you know that a particular company or entity may ultimately be the tenderer but the Commonwealth doesn’t give the incoming tenderer final permission which obviously hinders the tenderer in terms of being able to make legal arrangements, and particularly in the case where the principal component of the contract involves providing labour is problematic because you can’t hire staff. Why would anyone hire staff when you don’t have legal certainty as to whether you have a need to? I am making a broad submission that the whole process has been rushed and disorganised but it is significant I say in that it impacts on how you view the evidence and frankly the meaningful capacity for any employer to obtain acceptable employment in circumstances where the entire process is rushed, and this is not a criticism once again of the applicant, it’s simply a factual statement that how can you do something which requires some difficulty and complexity in the context of having in some cases six weeks to do it. And that general circumstance is a powerful, I say, factor in accepting the submission of the unions that these individuals should have the normal right to be paid redundancy.
PN2090
THE COMMISSIONER: Can I just interrupt you there, I just need to take a five minute break.
<SHORT ADJOURNMENT [2.46PM]
<RESUMED [2.50PM]
PN2091
MR BULL: I’ll try and be quick. (Indistinct) I was going to deal with, Mr Saunders dealt with the – he raised the argument I suppose that, you know, there’s always going to be demand for labour, therefore there’s always going to be factors that are going to influence an employer in hiring someone and that’s of course true. The other one of the general considerations I was going to raise with you is that there are I think in this case there is compelling what I call incumbency issues in terms of the contract change scenario and all the incoming contractors have to varying degrees that they have consistently said that a major consideration in their hiring choices was that the SSBS people were there, they’ve been working on an army base or RAAF base and they had issues of incumbency which made them attractive people to hire.
PN2092
The whole point of laws about redundancy is to provide some additional compensation to employees in a competitive market if you like to deal with issues about structural change in the economy because you get redundancy because your position rather than you ends, so it’s acknowledgement that in circumstances where your employment ends because of structural change, the burden is likely to be higher upon you and it’s a recognition of the fact that redundancies frequently occur in times of recession when the economy is going poorly, when there is likely to be a contraction in the tightening of the labour market and where these competitive forces that Mr Swan spoke about just don’t apply. So the whole justification for the obtaining obsession is that in the circumstance of redundancy there is some protection from this demand for labour and use of the terms like windfall, gain and so forth I think is quite inappropriate in that it’s an entitlement, it’s recognised in the Act as a NES entitlement and in circumstances where in terms of the legal definition they are entitled to it, they are entitled to it.
PN2093
You can’t say that sick leave is a windfall gain because you have a right to sick leave, it’s just there. So I think there’s some appeal in Mr Saunders’ submission about there’s always going to be a demand for labour, but I think when you unpack that I don’t think there is much – it is not as powerful as it may seem at first and the fact that many of the employees, particularly in Queensland, have issues about being in regional areas where there was scarcity of labour, you have to give those labour market considerations value in that they did influence the incoming contractors in their decision making. The other matter I make is that there was no transmission of business. The only situation where there is a limited recognition of service is in relation to MSS and it’s a limited recognition of service. It is conceivable that there can be a transition of service in a practical sense where the incoming contractor can take on the entire workforce, that’s not inconceivable.
PN2094
There is all this evidence about the fact that they were worried about buying the fridge and so forth because they didn’t want to get trapped by the Fair Work Act transmission rules. There would have been ways that the employees could have been given complete protection in relation to their employment and that didn’t occur and that was obviously a matter which the incoming contractors chose to do. Another matter which you may have noticed in that the incoming contractors in their letters of offer do obviously intend to rely on the ordinary and customary turn over of labour. So it’s likely that those employees of SSDS who have secured work with an incoming contractor, they are never going to have the benefit of a redundancy pay as the Fair Work Act terms it likely in their working careers, because they’ve mainly been given letters of offer which make it clear that they are being hired to do a contract. I think that is a significant - - -
PN2095
THE COMMISSIONER: You’re not really suggesting, are you, that just because the employer puts in their letter that they are relying on a customary turn over rate that they will be successful in that argument?
PN2096
MR BULL: No, but - - -
PN2097
THE COMMISSIONER: There haven’t been a lot of successful customary turn over loading cases, probably even fewer than there have been section 120 cases.
PN2098
MR BULL: I was just suggesting that the incoming contractors seem to be setting themselves up to run that argument.
PN2099
THE COMMISSIONER: I understand your general point which is they’re not guaranteed - - -
PN2100
MR BULL: That’s the point I’m making.
PN2101
THE COMMISSIONER: They’re not guaranteed ongoing employment or redundancy, of course that is true with the incoming contractor and I think the more substantial point there is they are subject to a probationary period.
PN2102
MR BULL: Yes, and I was going to come to that in a minute. I was going to make some observations just about the evidence. The evidence of SSDS has generally been at a fairly abstract level in that you have heard evidence from managers essentially, starting with Mr Marriott and working down. There was that cross-examination about the fact that there is a large – there are lists and so forth in statements that appear almost identical. Some of the statements have obviously been workshopped together in relation to some of the HR people such as Natasha Neil and Therese Fou. The list of things that the company did, you know they’re saying that that’s what we said we were going to do and they had some difficulty giving particular examples as to whether all these things were done. You had the evidence of you know Voices’ witnesses and the witnesses called by the NUW.
PN2103
Their evidence in a number of respects conflicted with what the company said that it intended to do and I think it’s more important to look at the evidence of the people on the ground so to speak, as their statements about what in fact occurred is what is relevant. It’s not what a company intends to do, it’s not what the corporate plan is, it’s what occurs in actuality which is what is of significance. The evidence that you have before you of what occurred in actuality departs significantly from what I say is the evidence of what the company says it planned to do in a number of respects. People did not get access to the resume writing and career guidance at a timely time. In some cases they weren’t afforded the time off that they were apparently entitled to, so there are aspects of the evidence of the individuals which conflicts with what the company’s intentions were and there is a variety of reasons for that. Likely the principal reason comes back to the fact that the process can best be described as rushed and disorganised.
PN2104
THE COMMISSIONER: Isn’t it a significant element there that just because there will be some employees who don’t make use of the resume writing because they’ve done it themselves doesn’t mean that other employees who did make use of it may have been assisted by making use of it, so I’m just saying I’m not sure that just because there’s some examples of where particular assistance wasn’t provided that are able to be substantiated by the employees’ evidence doesn’t mean that that assistance is irrelevant or (indistinct).
PN2105
MR BULL: No, no, I’m not suggesting that the evidence of Theresa Phuand Natasha Neil and Astrid Leibrandt should be disregarded, I’m just saying the evidence should be used on the basis of what it is, and what it is is fairly general evidence about what a large organisation intended to do. It’s not necessarily what the large organisation did and if you have to make findings about what occurred in individual cases I would say it’s not open for you to make a finding that people generally got assistance with resume writing, it’s not open for you to make a finding that people always got access to a computer because all the evidence of individuals suggests otherwise and that wouldn’t be in my view a safe and proper finding to make and the two are not inconsistent. We don’t have evidence of an individual who put in their application to Spotless on a SSDS computer.
PN2106
We don’t have any evidence from an individual who had interview coaching and so forth. I’m not saying it didn’t happen but I think it’s problematic to say it was more common than – you can’t accept it as a blanket statement that all employees did this, you have to treat it with some scepticism, the evidence of the corporate intentions of SSDS for want of a better term. And it is this evidence that some of the actions could be best described as confected, that there is evidence that it was done for an ulterior purpose. It wasn’t genuinely done to assist the employees, there was a significant subsidiary, possibly the primary purpose to protect SSDS from the obligation to pay redundancy and there’s a number of pieces of evidence to that effect and that’s significant. It’s also a commonsensical one in the sense why would a company want to pay $16-odd million if it didn’t have to and that’s the evidence of Trevor Marriott of the total liability, that’s for all of the terminations.
PN2107
Just to quickly go to the – just with Mr McKinnon. As noted the evidence from the various incoming contractors varied but I would suggest that there are certain common features and of significance the common features are that they all subjected SSDS employees to a competitive recruitment process where they are at risk and many in fact did fail to secure employment and that is a significant consideration. It is emphasised by Justice Marshall in Ellman v. TeleTech as a significant feature of conduct that’s going to fall below obtaining acceptable work. I hear Mr Saunders’ submission that Ellman v. TeleTech is somehow not on point because it’s dealing with an agreement with slightly different wording, but the clear statement from the full bench is that it is relevant, they have applied it. I suggest that there is some minor change in wording but it is for all intensive purposes on point and needs to be applied. That case I think is a powerful one.
PN2108
It is frankly the most – it is a precedent that this Tribunal has an obligation to be faithful to as it comes from the court that has the supervisory jurisdiction of this particular Tribunal. So any statements that it’s somehow wrong, something which you can ignore is simply incorrect and I just note that your previous judgement in this matter has applied it appropriately and in a more (indistinct) I would say unremarkable manner. Justice Marshall in that case identifies the fact that there is competitive recruitment as an important indicia of conduct that won’t be an obtaining. In relation to Mr McKinnon 20-odd SSDS applicants were not successful in the process, that’s significant and that number, I would suggest, despite all the so-called preference and sort of clear route ways which were apparently engineered by SSDS indicates that MSS still chose to exercise its own judgement in terms of who it would take on.
PN2109
This goes back to the fundamental concept of redundancy. The redundancy is designed to provide – you know as Senior Deputy President Lawler said to safeguard long service leave, but part of that is a broader consideration in relation to protecting the employee or the worker from I suppose the detrimental effects of structural change. So if you had to go through a process where you run the risk of if you’ve got a gammy leg or if you’re getting a bit old that you’re not going to get a job, that’s being made redundant because you’ve got no protection and the reality is that many people get a job and they want to stay in that job until they retire and so forth and as workers get older it is well documented that when people are in their 50s and so forth it’s much harder to get work because employers perhaps cruelly but the reality is that older workers get sick and so forth, you may as well take the young ones. There is clear evidence of medicals and so forth and people having waivers into those sort of things.
PN2110
Mr McKinnon clearly said that the same selection criteria was applied to all applicants. So whilst there was some preference the pool of the SSDS workers were drawn from first, they had to basically live with the same criteria and hurdles as anyone else. Mr McKinnon clearly indicated that regional Queensland had some peculiar issues because of its remoteness which made the SSDS people desirable because frankly they were the ones there. Interestingly, and this is my notes sand we don’t have a transcript, but I have got a note saying he was asked whether cooperation provided an incentive, and his reply is, “In what way was it an incentive?” And one of the impressions I got from the evidence of many of the incoming contractors is that in their language and responses it was indicative of the fact that it was just normal practice in this business to hire as many of the people there as you could.
PN2111
They all, in my submission, devolved whether they wanted to or not into this sort of speech of that’s what we do, we just hire the people who are there and that I say assists the unions in their view that there was not a great deal done by SSDS that obtained work. I think a fair analysis is the main thing that got these people work was the fact that they were already doing the job and in some cases in regional and also in the peculiar environment of an army base where you can’t easily just bring in a fresh work force. But Mr Atkinson from Transfield, he basically indicated there was no cooperation with SSDS. Transfield is an interesting example where that company took an approach of essentially not wanting anything to with SSDS. I would submit that it would be difficult to have a finding in relation to Transfield that there was any obtaining when the clear evidence is that they did everything they could to avoid having contact with the so-called agent of change who was going to cause these people to get work.
PN2112
Nicole Pianta from Spotless, she was perhaps friendlier to SSDS but even in her evidence, and we can say she is the high point of cooperation, but even in her evidence there are clear statements that once again it was business as usual in contracting land and they were doing what they normally do. They hire the people – if the people there are halfway decent they hire them, and her evidence in my submission clearly can be read to imply that that is principally what they did and as you’ve indicated in your first question to Mr Saunders the evidence of Karen Ninehan is unhelpful in that the applicant made a song and dance about the fact that they had this arrangement where every SSDS person who applied, it wasn’t qualified by you know excluding leading hands and supervisors got an interviews. Karen Ninehan seemed an articulate and credible witness.
PN2113
It wasn’t something we sprung on the applicant, it was at least foreshadowed in a sense in her statement but it wasn’t explicit. Her evidence was clear that they didn’t even send her a letter. She sent an expression of interest and she got nothing. Look, once again the theme of being rushed and disorganised I think is perhaps the explaining principle to a lot of what has occurred in these contract change situations. There may have been some intention to give everyone an interview but at least in relation to Karen Ninehan and some of her colleagues that intention did not eventuate in a reality. Catherine Holmes from Compass I think gives interesting and useful evidence. It’s interesting because I say it’s clear and it once again reflects this reality of contracting land where you hire the people who are there if they’re reasonable.
PN2114
She’s made in this stage of the litigation and in previous stages very clear statements to the effect that it just makes sense to hire the incumbent employees. I commend Catherine Holmes to you as a credible, Holmest and sensible witness. She seems to I say have relatively little guile in terms of her approach to these matters. I won’t even being to theorise about some of the motivations of the other incoming contractors because there seems to be perhaps some level of guile in relation to some of their statements. That goes for frankly all of them. Catherine Holmes, I would suggest, is the one who seems to me the most transparent in her responses. She says for example that SSDS provided assistance, “helped us with the process,” I think were her words, that’s what I’ve noted in my notes and once again a simple statement but a powerful statement of what SSDSs actions can be appropriately characterised as. “They helped us with the process.”
PN2115
Interestingly and critically Catherine Holmes gives evidence to the effect that they have since terminated former SSDS employees on probation and that’s a point which you have alluded to Commissioner earlier and is obviously a significant issue for every single SSDS employee because even the MSS people have no protection against unfair dismissal. Some of the – and this is perhaps a general point I will make, this is an aspect which I have issues with a lot of the SSDS evidence and this relates to my argument or my submission that some of the manner in which they have dealt with this is confected. The applicant, I say, has dressed up – it’s put together a list and it’s evident in the evidence of Therese Phu and Natasha Neil and some of the other HR people that they have sat down and they have put together a list of everything that we have done to assist us to say that we have obtained acceptable employment for our employees and that to me I say is fundamentally disHolmest and is problematic and it does give rise to well, the suspicion that the intentions are not proper, that the principal intention is not the looking after our people, it’s the trying to avoid paying terminated redundant employees redundancy pay.
PN2116
Catherine Holmes, there is a statement in her evidence where she says, yes, look we gave longstanding employees the courtesy of an interview. That’s a simple, human thing to do to give somebody who has worked as the cleaner for five years or the waiter in the mess hall or whatever, an interview. It’s also a sensible thing to do commercially. So giving people interviews, looking at workers, it’s not obtaining work I’d say.
PN2117
THE COMMISSIONER: Are you nearly at the end, Mr Bull?
PN2118
MR BULL: That’s it. I think I’ve finished everyone. Thank you.
PN2119
THE COMMISSIONER: Mr Snowball.
PN2120
MR SNOWBALL: Is that a veiled request for me to be very quick?
PN2121
THE COMMISSIONER: No, well, I said before lunch we’ll be finishing at four.
PN2122
MR SNOWBALL: I don’t think I’ll take 45 minutes, so.
PN2123
THE COMMISSIONER: You have to leave a few minutes for Mr Saunders in reply.
PN2124
MR SNOWBALL: Commissioner, we have filed a written outline of submissions in these matters detailing the relevant law in our submission so I’ll just provide some brief comments in closing. We of course continue to say that the evidence presented during these hearings clearly demonstrates that SSDS did not obtain its employees’ employment and was not the strong moving force behind the creation of available opportunity for its employees. Instead we say that the strong moving force behind employees securing employment was their own efforts and merits combined with the incoming contractors need for skilled, experienced labour.
PN2125
I will just provide now some brief comments on the evidence relating to each of the incoming contractors that we have heard over the last couple of days. Firstly in relation to Transfield Services, the number of SSDS witnesses concede that as did Mr Saunders in his submissions that there was very limited interaction between SSDS and Transfield throughout the transition period in North Queensland. This lack of cooperation was confirmed by Mr Atkinson at Transfield who gave evidence that there was less cooperation between SSDS and Transfield than in the Northern Territory contract. Mr Saunders has made submissions stating that this was due to Transfield’s fear of enlivening the transmission of business provisions in the Act. Firstly we would say that there is no evidence to demonstrate that but in any event it’s really not relevant what their motivations were, all that’s relevant is that there was a clear decision of Transfield to run their own recruitment process and not cooperate or interact with SSDS throughout the process.
PN2126
In terms of Transfield’s recruitment process, Mr Atkinson indicated that Transfield ran a competitive merit based recruitment process that was completely independent of SSDS. This recruitment process was aimed at employing candidates most suited to the roles Transfield was required to fill and there was no automatic preference or priority for SSDS employees in the process. Furthermore, Mr Atkinson confirmed that the actions of SSDS did not have any bearing on any recruitment decisions that were made for employees employed in North Queensland. On this basis and consistent with the decision in the Northern Territory decision we say that the Commission cannot be satisfied that SSDS has obtained employment for its employees with Transfield and as such their application in relation to those employees should be dismissed.
PN2127
Secondly in relation to Compass, Mr Holmes gave evidence that it was always Compass Group’s intention to employ as many SSDS staff as possible. Ms Holmes indicated that this was due to a couple of reasons. Firstly she said that it was the normal practice in change of contract situations for Compass when they are the incoming contractor to first look at recruiting as many of the existing staff as possible. Secondly, Ms Holmes indicated that it made, and I quote, “good business sense” for Compass to first look at the SSDS employees. This was due to their knowledge of Defence catering operations, their skills and their Defence clearances that they already possessed. Ms Holmes agreed that this preference and priority for employing as many SSDS staff as possible existed regardless of any actions taken by SSDS to assist them in their recruitment process, and based on this the Commission should not find that the actions of assistance that SSDS gave to Compass resulted in a priority and reference being afforded to SSDS employees.
PN2128
As I’ve already said this preference and priority existed regardless of any actions of SSDS and was present right from the start of the transition period. In terms of their recruitment process Ms Holmes indicated that applicants, both SSDS and external, were required to submit an application, attend an interview, conduct a behavioural assessment and then be selected for employment based on the merits of their application, interview and behavioural assessment. Ms Holmes further confirmed that SSDS had no formal role in this recruitment process or the decisions made by Compass Group. Instead the role of SSDS in this process was to assist and facilitate their employees’ participation in Compass recruitment process.
PN2129
Ms Holmes obviously noted that Compass appreciated this assistance of SSDS, however she also noted that it was not uncommon in a change of contract situation for the incoming contractor and outgoing contractor to cooperate in some manner so that employees remain in some form of employment. Furthermore, there is absolutely no evidence before the Commission of any causal connection between the assistance given by SSDS to its employees and Compass and to those employees actually obtaining employment with Compass Group. Instead we say that the evidence clearly demonstrates that after commencing and being assisted to partake in the recruitment process it was up to employees themselves to compete for positions by demonstrating their merit and suitability for the role. Therefore we say it was the employees themselves through their own efforts and skills and merits and qualifications who were the strong moving force behind the creation of this available opportunity.
PN2130
In accordance with the decisions in Ellman v. TeleTech and MUA v. FBIS, we say that facilitation and assistance of employees’ participation in a recruitment process is not sufficient for a finding that employment has been obtained. As such we say that the Commission cannot be satisfied that SSDS has obtained employment for employees with Compass Group. Moving onto Spotless Ms Pianta gave evidence that all prospective employees, both SSDS and external applicants were required to go through a standard merit based requirement process. This involved all applicants being given an equal opportunity to demonstrate their merits and suitability for the roles on offer. In terms of the actual process Spotless required all employees to submit an application for a position, attend a group interview, participate in a behavioural assessment and also medical recruitment decisions were then made by Spotless based on how the applicant performed in this process, their merits and their suitability for the role.
PN2131
Ms Pianta was quite eager in her evidence to emphasise the assistance provided by SSDS. She also agreed that SSDSs role in their recruitment process was limited to assisting their employees’ apply and participate in the recruitment process. Ms Pianta confirmed that there was no formal role for SSDS in the process and that SSDS did not have any influence on recruitment decisions. There was also evidence given regarding an alleged agreement that was reached between SSDS and Spotless earlier on in the transition period which provided for all SSDS employees who applied for a position with Spotless to be given an interview. Firstly we have heard some evidence this morning that this may not have occurred in all circumstances. In any event Ms Pianta confirmed that this agreement did not extend to Spotless being required to offer any SSDS staff employment. Furthermore, even though SSDS employees were by and large afforded the opportunity of an interview, they were still required to go through the same recruitment process and compete with other applicants for positions.
PN2132
The decisions about recruitment were still based on the applicant’s merits, regardless of whether they were an SSDS employee or not. Again, similar to Compass we say that while the assistance offered by SSDS was clearly beneficial to Spotless and was undoubtedly appreciated, it did no more than assist and facilitate their employees’ participation in a recruitment process that was ultimately based on merit and was also competitive. We say that there is no evidence before the Commission that there is a causal connection between the assistance given by SSDS and the actual offers of employment being made to prospective employees for Spotless. Again in accordance with the relevant authorities we say that assistance and facilitation in a recruitment process is not sufficient for an employer to be found to have obtained employment for its employees.
PN2133
As such we say that there is no basis for a finding that SSDS has obtained employment for its employees with Spotless. Lastly there is of course MSS. MSS is unique in all of these proceedings as it’s the only contractor to have a formal agreement with SSDS. Despite the existence of the MOU we still say that SSDS has not obtained employment for its employees. SSDS of course submit that this MOU resulted in MSS giving priority and preference to SSDS staff in their recruitment process. However, we say that this assertion is not supported by the evidence. Mr McKinnon’s evidence confirmed that it was always MSSs intention to employ as many Serco Sodexo staff as possible. Mr McKinnon gave evidence that MSS have this incentive to employ SSDS employees because they have the knowledge of the operations and the relevant Defence clearances to be able to conduct access control services.
PN2134
Indeed Mr McKinnon indicated that had they not employed a significant number of SSDS staff it would have been extremely difficult for them to service their contract from day one and they would have had to go to Defence to obtain concessions or even operate a fly in, fly out workforce, something that wouldn’t have been commercially viable for MSS. SSDS was made fully aware of MSSs intention to recruit as many Serco Sodexo staff as possible. This is of course made clear in the meeting that occurred between senior SSDS and MSS management in July of 2014 before the transition activities had started. At this meeting MSS indicated to SSDS that they wanted to take on as many of their existing staff as possible and that in a normal change of contract situation they are usually able to recruit around 90 per cent of the existing workforce.
PN2135
Although Mr McKinnon gave evidence regarding change of contract situations at the US Embassy where there was no cooperation from the outgoing employer and they were only able to recruit around 60 per cent of the staff he also noted that this was in a situation where they were dealing with a competitor who was hostile and was also trying to retain a number of the staff. In further examination he confirmed that MSS still take on a substantial proportion of existing staff in change of contract situations where there is no cooperation from the outgoing contractor. Therefore we say that the preference and priority for SSDS staff always existed and was not borne out of the execution of the MOU. We say that MSS always had this intention and SSDS was fully aware of this right from the beginning of the transition. Therefore we say that the MOU should not be regarded as a strong moving force behind employees – behind the creation of the opportunity for employees.
PN2136
Mr Saunders has of course cited the hypothetical situation that was put to Mr McKinnon in cross-examination yesterday and that hypothetical situation was basically if there was a choice between an SSDS employee and an external applicant and that external applicant was superior would MSS have chosen the existing SSDS employee and Mr McKinnon agreed that they would and he said that this was due to the MOU. I would make two points about that. Firstly, that was a hypothetical situation and there is no evidence that that actually occurred and it wasn’t put to Mr McKinnon that that actually occurred. Secondly, if you look at the evidence as a whole we would say that that preference to employ the SSDS staff even though they may have been more deficient than the external applicant was due to the fact that they had the relevant skills, knowledge of the operation and the Defence clearances to be able to do the role from day one.
PN2137
In terms of the actual recruitment process Mr McKinnon indicated that employees were required to submit an application, participate in an interview and then be selected based on how they measured up against the standardised selection criteria. Again similar to other contractors SSDSs participation in this process was to assist employees to participate in that competitive recruitment process. Apart from the MOU which we say should not be given significant weight there is no demonstrable casual connection between SSDSs assistance and MSSs ultimate recruitment decisions.
PN2138
THE COMMISSIONER: What about that group of employees, it’s obviously only a small group, but the group of employees who would have – who failed the medical but were then given some second chance and that chance wasn’t available to external applicants, so wouldn’t it be correct to say that the MOU meant that those people obtained employment when they wouldn’t otherwise have obtained employment?
PN2139
MR SNOWBALL: In relation to that I would say that firstly the sort of concession that was given to those employees that failed the medical, firstly that was not included in the MOU, secondly SSDS never requested that be afforded to MSS, and thirdly I would say that the ultimate reason that MSS granted those employees that concession was because they needed those employees, they needed to employ as many SSDS staff as possible. Mr McKinnon gave evidence as I said before that they needed SSDS staff because of their skills, because of the fact that they knew the work and because of the fact that they had the Defence clearances that MSS needed to be able to satisfy their contract from day one. So in that regard I would say that is not a relevant consideration for the Commission.
PN2140
THE COMMISSIONER: But if you just take those points that you raised, yes Mr McKinnon did give that evidence in a general sense, right, so if they were looking at recruiting 100 per cent of the security guards from outside, then yes he conceded it would be uneconomic for MSS, it would cause great problems for MSS and so on. They went through that and clearly accepted your submission or the point you’re making about the security clearances and the skills that they had and that they were in rotation and that’s why it was attractive for them. But at this point, at the point in the process where this medical issue arises MSS have already recruited perhaps 80 per cent or 70 per cent of the security guards that they need from SSDS or former SSDS employees. So in that situation how can you say that those employees would have got the job regardless of the SSDS efforts, particularly reflected in the MOU?
PN2141
MR SNOWBALL: I would say that there is no evidence that the MOU contributed to MSS making those concessions.
PN2142
THE COMMISSIONER: That’s because it’s not in the MOU and it wasn’t requested by the SSDS you say.
PN2143
MR SNOWBALL: And I don’t recall Mr McKinnon saying the reason we granted these employees this concession in relation to the medical was because we had no MOU SSDS.
PN2144
THE COMMISSIONER: It was a bit indirect but I think in answer to Mr Saunders’ questions it got fairly close to that.
PN2145
MR SNOWBALL: In our submission the preference for SSDS employees already existed and that would have been one of the contributing reasons why they afforded those employees a concession in terms of the medical.
PN2146
THE COMMISSIONER: Right.
PN2147
MR SNOWBALL: As I was saying SSDS employees by and large were offered employment by MSS because they were the best candidates by virtue of their skills, experience, knowledge of the operations and their Defence clearances. Therefore we say that it’s not open to the Commission to find that SSDS obtained employment for its employees with MSS. Now I just want to touch on some of the assistance that SSDS has given to its employees throughout the process. There is no doubt that SSDS throughout the whole process has taken significant steps to attempt to assist its employees secure employment with the incoming contractors and that’s commendable to SSDS and as Mr Saunders said they weren’t under any legal obligation to do so.
PN2148
Of course when giving evidence its witnesses were extremely eager to list these steps in their witness statements and emphasise them by the evidence they gave over the last couple of days. However, while SSDS witnesses could confirm that the activities to assist employees were undertaken by SSDS, they were by and large unable to give any evidence about how many employees actually received the assistance and the information on the ground. The witnesses were unable to give specific figures on how many employees attended certain sessions, received assistance or even received the information that was being distributed. Indeed SSDS witnesses stated that for many of the activities there were no formal accountability measures to ensure that employees were actually receiving the information and assistance on the ground.
PN2149
One good example of this is SSDSs reliance on what they termed email cascades to disseminate information. Ms Neil confirmed that these were an important mechanism to reach employees that didn’t have access to YAMMA or an email account which was of course the majority of the SSDS workforce. Ms Neil gave evidence that there were no formal tracking mechanisms in place to ensure that these emails were indeed reaching employees on the ground. Instead she said that they would follow up on an ad hoc basis to ensure that this was occurring. Mr Saunders has made a submission that it’s unrealistic and basically impossible to record every time an employee was assisted in some shape or form by an SSDS manager and to a certain extent that is true. However, much of the evidence presented indicated that there were almost no measures to ensure that employees were actually receiving the information and assistance on the ground.
PN2150
It was requested – questions were asked of SSDS witnesses a number of times to provide specifics on when employees were assisted or how many employees were assisted and by and large SSDS witnesses were unable to provide this. An example is of course the email cascades, another example is of course the assistance that they provided to help employees draft resumes application forms. This was an important part of SSDSs assistance to employees, however not one witness was able to give any information about how many employees were actually assisted to create a resume or an application. Another example is the provision of computers or IPads to allow employees to search for jobs or to make applications. Again there is no evidence of how many employees actually made use of this assistance.
PN2151
Witnesses were able to say that they were made available but they weren’t able to give any indication about how many employees made use of them or benefited from this assistance. This is of course an application to reduce redundancy pay or the application applies to all employees across North Queensland. The onus therefore lies with the applicant to demonstrate that it has in fact obtained employment for all of those employees and given that it can’t satisfy and hasn’t presented evidence to demonstrate how many employees actually received this assistance, it raises the question as to how the Commission can be satisfied that SSDS has obtained employment for all of the employees that are subject to this application when it hasn’t been presented with evidence of how many employees or even if a majority of the employees have actually received and benefited from the assistance provided by SSDS.
PN2152
Therefore we say that the Commission should not give significant weight to the assistance provided by SSDS as they can’t demonstrate how many employees actually received the assistance. Commissioner, in relation to the obtained question we ultimately say that there is no evidence to demonstrate that SSDS has obtained employment for its employees and that the applications should be dismissed. Turning to the question of whether or not the employment is suitable, this will obviously have to be addressed if the Commission is satisfied that employment has been obtained for employees and of course as we have already dealt with this it will be dealt with on a broad basis and specific circumstances could potentially be raised at further hearings in the future.
PN2153
We don’t disagree with the principles that have been outlined by the applicant in their submissions for determining whether or not alternative employment is suitable and we do note that by and large the wages and conditions that the employees are now employed on are quite similar to those that were provided by the enterprise agreement that applied to these employees prior to their termination. However, I would make a couple of comments. Firstly it’s in relation to employee service not transferring across for employees – or for the majority of employees their service will not transfer to the new employer for any purpose. There are of course exceptions for MSS staff in a limited capacity in relation to personal leave and long service leave and also for cleaning staff by virtue of the (indistinct) long service leave or transferable long service leave that Mr Saunders has identified. But by and large for the majority of employees their service will not transfer for any purpose and this should be a relevant consideration for the Commission when exercising its discretion in reducing redundancy pay if need be.
PN2154
Secondly we raise the fact that all new employees including MSS employees will be subject to a six month probationary period. This is of course by virtue of the fact that they are all completely new employees of these companies and for example we heard evidence from Ms Holmes that Compass intend to use the probationary period quite ruthlessly to I think as she termed it to sort of weed out employees that weren’t up to their standard. We say that this is a reliant consideration for the Commissions in the sense that these employees no longer have a sense of job security for the next six months and that should be taken into consideration by the Commissions when determining the amount to reduce redundancy pay if necessary. Commissioner, subject to any questions you may have that concludes my submission.
PN2155
THE COMMISSIONER: Thanks, Mr Snowball. I ask the question (indistinct). Yes, Mr Saunders.
PN2156
MR SAUNDERS: Commissioner, I have nine points in reply and they are strictly in reply. First, in terms of Mr Snowball’s submissions concerning whether or not the information put out by Serco Sodexo made its way to employees, he referred in particular to the system of email cascades. Every supervisor or team leader who has come forward to give evidence in these proceedings I have asked questions of them about this system of receiving emails and cascading down to members of their team. I asked them whether they were responsible for cascading the information or whether in fact they did so. Today that (indistinct) we had Mr Gollan and Ms Ninehan, they both said that every time they received an email in this category and they did on a regular basis, they printed them out and they provided them to their team. It is firsthand evidence of the best kind one could have hoped for as to whether these email cascades worked and in fact they did. That’s the first point.
PN2157
Second, Mr McKinnon – when you go back to the transcript you will see that Mr McKinnon did in fact give evidence that the medical plan was permitted by MSS for Serco Sodexo employees because of the commitments made by Serco Sodexo and the MOU, that’s my note of the question and the effect of the answer he gave and that will be clear from the transcript. That’s the second point. The third point is in response to Mr Snowball’s submission about the hypothetical comparison between a Serco Sodexo employee and an external applicant being considered by MSS. In my submission it wasn’t a hypothetical situation because the evidence of Mr McKinnon was that MSS were in fact considering external applicants at the same time they were processing Serco Sodexo employee applications. So they were engaging in the very exercise about which I asked him in cross-examination.
PN2158
The fourth point in the reply is in response to Mr Bull’s submission that it was dishonest of Serco Sodexo employees to put in their witness statement a list of all the things that had been done to assist employees to get a job. It was not suggested by Mr Bull or anybody else to those witnesses that they were being dishonest when they gave that evidence or when they put those matters in their witness statement. It is not now open for him to make that submission, it should be withdrawn. It had not been put to those witnesses, it is not open for the submission to be made, and it’s certainly not open for a finding to that effect to be made. To the contrary it was entirely appropriate for witnesses who have been involved either at a corporate level or a day to day level or a bit of both to put forward in their witness statement evidence about facts of which they were aware concerning steps taken by the organisation to assist employees to get a job and that’s what they did.
PN2159
Next, Mr Bull made a submission that Ms Holmes said in her evidence that Compass had dismissed employees in the probationary period. My note of her evidence is that she did not give such evidence. She certainly did not exclude the possibility that employees might be dismissed in their probationary period if certain circumstances exist and there is no doubt that is a risk factor for employees and if we get to the level of discretion it’s a relevant factor.
PN2160
THE COMMISSIONER: My recollection was she referred to one employee but not necessarily from North Queensland she said.
PN2161
MR SAUNDERS: That does ring a bell, yes.
PN2162
THE COMMISSIONER: But I think it was only one.
PN2163
MR SAUNDERS: Yes, we accept there is a risk and we accept that is a relevant factor in discretion if we get that far. I just didn’t have a recollection of actual dismissals. In terms of Ms Ninehan, her evidence about participation or invitations to participate in an interview with Spotless, one additional factor I want to point to in that regard is Ms Ninehan is obviously in a good position to tell us about her experience, whether she got an interview or not and that’s fine. But she was also obviously in a good position to tell the Commission about whether the 14 members in her team participated in an interview because she was obviously intimately involved in their affairs and finding out what was happening with them on a day to day basis and the evidence she gave was that all 14 members of her team did get an interview and 13 of them were employed. She was obviously in a good position to talk about those employees and her evidence in that regard supports the other evidence from Spotless that it did make a commitment and honour the commitment to offer interviews to Serco employees.
PN2164
She is obviously not in as good a position to talk about other undisclosed, unidentified employees. We weren’t told the names of those employees, the positions of them, where they worked, how she found out they didn’t get an interview, could have been rumour for all we know, and the way in which it came out in re-examination obviously I had no opportunity to explore it further. So it’s not the evidence of a weighty kind. The third last point in reply is Mr Bull referred to Mr McKinnon’s evidence in this way. I asked Mr McKinnon in his evidence whether the MOU provided MSS an incentive to employ as many people as possible and in response to that question he said, well in what way wasn’t it an incentive and that’s the evidence to which Mr Bull and highlighted. What you were told by Mr Bull was that the next question put to Mr McKinnon was, well wasn’t it the fact that because MSS was being paid by Serco Sodexo pursuant to the MOU for each employee it engaged, in that way the MOU incentivised MSS to employ as many employees as possible?
PN2165
The response to that question he said, yes, that’s right, we were incentivised in that way. Second to last, Mr Bull made some submissions about evidence in the respondent’s witness statements concerning whether or not the assistance offered to employees had been taken up by individuals. In my submission the effect of the evidence when we looked at Serco Sodexo’s evidence and the employees evidence called by the unions was that in terms of the offers of assistance provided, and resumes is a good example, some employees didn’t take up the offer and one can understand why. Some employees are perfectly capable of doing a very good resume themselves. They might be able to do it from prior experience or from help from elsewhere and they want to do it on their own, no one would ever criticise them for that. But other employees would appreciate assistance, would take assistance and the evidence of Serco Sodexo’s employees is that particular individuals did take that up and in particular names of people and sometimes the numbers of people, the categories of people is spelt out in the evidence.
PN2166
So the effect of the evidence is the assistance was offered, some people took it up and some people did not. That’s the fair assessment of the evidence. Finally, the ninth point in reply is in response to Mr Bull’s submission that the process for the incoming contractors to recruit employees to work on these Defence contracts was rushed and disorganised he says and in some cases they were only six weeks from the process to occur. The six week time frame is not correct. The notification for these incoming contractors took place by the Commonwealth government either in July or very early August 2014 and the contractor for North Queensland, the current case we’re dealing with, didn’t commence until 1 December, that is a period of four months, not six weeks. In my submission the evidence considered as a whole does not disclose a rushed or disorganised process over a four month period.
PN2167
There was sufficient time for incoming contractors such as Spotless to go up to the sites up in far North Queensland and hold multiple consultation sessions, information sessions with employees over different periods of time. There was time for consultation to take place and there was time for team meetings to take place on a regular basis, there was time for consultation sessions, resume writing sessions, a whole range of steps to be taken in the four month period, for as much to be done for the employees as possible to try and assist them to get a job and it’s not a fair assessment of the evidence in my respectful submission to say that the process was rushed or disorganised. Unless I can assist further they are the nine points in reply.
PN2168
THE COMMISSIONER: Thank you, Mr Saunders. All right.
PN2169
MR BULL: Just one matter in relation to my submission about the witnesses being dishonest, that’s the only matter I wanted to address briefly.
PN2170
THE COMMISSIONER: Obviously I think we’ve heard in submission in reply but you were specifically asked about withdrawing this dishonesty point so I am happy for you to say something about that.
PN2171
MR BULL: What I was going to say is I don’t have a recollection of saying – my recollection is that I may have used the word “dishonest” and if I did I withdraw it. The context in which I was attempting to, I suppose, impeach their evidence was something which was traversed I say in cross-examination and it related to – I used the term “confected”. So I wasn’t saying they were lying or whatever, I was saying there was a sense in which the evidence was somewhat more massaged than it should have been. I wasn’t saying it was deliberately dishonest and I think I did – both myself and Mr Snowball did traverse that issue in cross-examination so there is no Brown v. Dunn unfairness issue. But I withdraw it in the sense that they weren’t lying. But I think they were trying a little bit too hard, that’s what I meant.
PN2172
THE COMMISSIONER: All right. Thank you to the parties for their assistance in this matter and as I say I will consider it and there will be a decision in these matters in the New Year.
<ADJOURNED INDEFINITELY [3.52PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
GRAHAM GOLLAN, AFFIRMED PN1381
NATION-IN-CHIEF BY MR SNOWBALL PN1381
EXHIBIT #NUW14 WITNESS STATEMENT OF GRAHAM GOLLAN PN1388
CROSS-EXAMINATION BY MR SAUNDERS PN1399
RE-EXAMINATION BY MR SNOWBALL PN1493
THE WITNESS WITHDREW PN1506
AARON SCHNEIDER, AFFIRMED PN1528
EXAMINATION-IN-CHIEF BY MR BULL PN1528
EXHIBIT #UV17 WITNESS STATEMENT OF AARON SCHNEIDER PN1530
CROSS-EXAMINATION BY MR SAUNDERS PN1537
RE-EXAMINATION BY MR BULL PN1613
THE WITNESS WITHDREW PN1619
KENNETH BREWER, AFFIRMED PN1619
EXAMINATION-IN-CHIEF BY MR BULL PN1619
EXHIBIT #UV18 WITNESS STATEMENT OF KENNETH BREWER PN1623
EXAMINATION-IN-CHIEF BY MR SNOWBALL PN1643
CROSS-EXAMINATION BY MR SAUNDERS PN1656
RE-EXAMINATION BY MR BULL PN1746
THE WITNESS WITHDREW PN1761
JANELLE CONSTANTIN, AFFIRMED PN1761
EXAMINATION-IN-CHIEF BY MR SNOWBALL PN1761
EXHIBIT #NUW15 WITNESS STATEMENT OF JANELLE CONSTANTIN PN1768
CROSS-EXAMINATION BY MR SAUNDERS PN1768
RE-EXAMINATION BY MR SNOWBALL PN1842
THE WITNESS WITHDREW PN1849
KAREN NINEHAN, AFFIRMED PN1852
EXAMINATION-IN-CHIEF BY MR BULL PN1852
EXHIBIT #UV19 WITNESS STATEMENT OF KAREN NINEHAN PN1872
CROSS-EXAMINATION BY MR SAUNDERS PN1873
RE-EXAMINATION BY MR BULL PN2003
THE WITNESS WITHDREW PN2011
EXHIBIT #SERCO20 WITNESS STATEMENT OF MR MCKINNON PN2041
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