C2014/7049, Transcript of Proceedings [2015] FWCTrans 92 (2 March 2015)

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Maritime Union of Australia, The
and
Qube Ports Pty Ltd
(C2014/7049)
Qube Ports Pty Ltd and Maritime Union of Australia Enterprise Agreement 2011 (the Port of Melbourne)

(ODN AG2012/12079)
[AE898477 Print PR531811]]

PN1.

THE COMMISSIONER: Yes. We are on record so I'll take the appearances, thanks.

PN2.

MR W. SMITH: Your Honour, if it pleases the Commission, Smith, initial W, from the Maritime Union, with me Jacka, initial A, and Sleeves, initial D, all from the Maritime Union.

PN3.

THE COMMISSIONER: Thank you.

PN4.

MR D REID: Commissioner, if it please the Commission, David Reid, Workplace Relations manager Qube, David Saul, Tasmanian State Manager, Qube Ports and Travis Carlier, C-a-r-l-i-e-r, operations manager, Victoria, Qube Ports.

PN5.

THE COMMISSIONER: Good, thanks.

PN6.

MR REID: Commissioner, if it pleases, I’d also like to raise a matter before proceedings commences, if it’s appropriate. There’s a member sitting in the public gallery who is a former employee of Qube Ports who is also the subject of proceedings that are still alive before the Commission and we would seek the Commission’s indulgence in having this person removed from this hearing on the basis that being a former employee it’s of no material interest to that individual; and secondly, it would be inappropriate in the sense that there are still live proceedings before the Commission regarding this individual.

PN7.

THE COMMISSIONER: Have you raised this with Mr Smith?

PN8.

MR REID: I have raised it with the other side, yes.

PN9.

THE COMMISSIONER: So what’s the damage that occurs? What mischief is caused by this seeing what ‑ ‑ ‑

PN10.

MR REID: This person is no longer an employee of Qube Ports.

PN11.

THE COMMISSIONER: Yes.

PN12.

MR REID: So there is no material interest, presumably, for that employee to be here in the public gallery and what is conciliation about matters pertinent to employees; and secondly, there are matters unresolved before the Commission with regard to this individual and it would be our respectful submission that it’s inappropriate for that person to be present at proceedings involving employees of Qube Ports when there’s an unresolved matter still alive before the Commission.

PN13.

THE COMMISSIONER: Mr Smith, what do you say about that?

PN14.

MR SMITH: Commissioner, I note there’s a child as well. Maybe Mr Reid would like to remove the child. I'm not quite sure. There’s no basis to this. We’re currently in settlement discussions with a person that Mr Reid mentioned; no damage, no harm, no negative impact upon this process whatsoever and my understanding is that that is a public gallery anyway and anyone that’s off the street could come in, so there’s no basis for discrimination of a person in the Fair Work Commission in the public gallery on the basis of them being an ex-employee.

PN15.

THE COMMISSIONER: I think that’s true, unless we go into private conferences and the circumstances change then. We would probably not anticipate that if we went into private conference people from off the street would be involved. Mr Reid, this is a public proceeding and to some extent the Commission is required by the act to actually conduct its proceeding with a degree of transparency. I'm not sure that I could prohibit just a member of the public from actually being in the room. Obviously that changes if we go into private conference. That's a different circumstance, but at the moment we’re on record.

PN16.

MR REID: Commissioner, I suppose that the unresolved matters regarding this individual are such that this individual’s presence here today could have some bearing on the outcome of those proceedings – the negotiations.

PN17.

THE COMMISSIONER: That's a little cryptic, but I'm not ‑ ‑ ‑

PN18.

MR REID: I just don’t want to traverse grounds.

PN19.

THE COMMISSIONER: I'm not sure that I would have the power to kick a member of the public out of the proceeding. I think that’s as simply as I can put it. Now, given your concerns about this, it might be in that individual’s best interests to say, “Look, if they feel like that, it might be in my best interests to actually leave of my own volition if they’ve got a problem with that.” That might engender a degree of good faith in respect of your other negotiations. That might be something that that person personally might want to consider. I don't know. I just don’t think I have the power to exclude a person from the proceedings.

PN20.

MR REID: I would concur with your previous comments.

PN21.

THE COMMISSIONER: I beg your pardon?

PN22.

MR REID: I would concur with your previous comments that’s perhaps that individual might want to consider their presence and make a decision.

PN23.

THE COMMISSIONER: Mr Smith, we’re running delayed anyway because we’ve got a bit of a problem, but do you want a short adjournment, Mr Smith, so that you might have a discussion with this – presumably, it’s a member of yours?

PN24.

MR SMITH: Yes, your Honour. We’re not seeking an adjournment. We see no harm in proceeding and we see no damage and we think it – I honestly don’t understand the basis of this. We've got other matters at hand that affect a lot of people and we’d really like to deal with the issues at hand that are having a significant impact upon people’s lives and not a distraction.

PN25.

THE COMMISSIONER: It’s a judgment for you and the individual to make, I think. Obviously, if we go into private conference it’s a different story, but I was going to give you an opportunity to actually consult with the individual and if you don’t want that, we won’t have it. We can just continue on.

PN26.

MR REID: Your Honour, I won’t press the matter any further.

PN27.

THE COMMISSIONER: Yes, all right. Let’s continue on then.

PN28.

MR SMITH: Yes, your Honour.

PN29.

THE COMMISSIONER: The conference today, well attended as it is, is held for the purposes of giving each side an opportunity to essentially report back and tell me what’s been happening. I indicate that yesterday we received a document which included a number of sort of statements made by individuals. I can indicate that I’ve read all of those. Mr Reid, did you get that material?

PN30.

MR REID: I did, Commissioner.

PN31.

THE COMMISSIONER: Yes, all right.

PN32.

MR REID: Yes, sir.

PN33.

THE COMMISSIONER: There’s obviously been certain concerns raised there, but I suppose it really is a case now for each side to at least tell me formally how they would like to report back on the position and then we can try and work out where we go from there. As I say, we may want to go off record into private conference and discuss some of this or it may be that we take a different pathway. I'm open to any suggestion in that regard.

PN34.

MR REID: Commissioner, if it pleases the Commission, Mr Saul could provide you with a snapshot summary, if you will, which might be a sensible starting position.

PN35.

THE COMMISSIONER: All right. We can do that. Yes, that might be good. Thank you.

PN36.

MR REID: Alternatively, we’d be happy to hear what the MUA has to say in terms of opening remarks if that’s ‑ ‑ ‑

PN37.

THE COMMISSIONER: The handballs are going backwards and forwards here. Mr Smith?

PN38.

MR SMITH: Your Honour, our position has not significantly altered since we last met. We met you on, I think it was, 28 November. You know that this is a very complex issue, but underpinned by certain economic questions of which we aren’t ruling out offhand as we all understand that there is some less work in the workplace. We get that and this has never been an exercise of trying to intensify the degree of idle time within the workforce for our own benefit. We expressed to you grave concerns about the removal of the roster and the impact that it would have on people’s lives in a very practical way.

PN39.

The nature of bulk and general workforces, we’ve already sort of been through that situation where we have 20-odd start times. We have shifts between four and 12 hours, all notified at 4 pm the night before; shifts that can be extended, a whole range of flexibilities in this workforce to be able to create a competitive capacity for the company to be able to operate in this industry.

PN40.

It was always our grave concern, however, that the removal of the roster proceeded on the basis of an agenda other than that which was purely an economic position and we made the concession in front of you, your Honour, where we said we would accept the suspension of the roster and when permanent FSE hours were back on track and tracking and we sought some trigger points so that there would be an objective analysis and no disputation as to when the roster would come back. We've sought that and we’re still seeking that. We’re not disputing with you the suspension of the roster in terms of the downturn in work, but we do absolutely require a commitment that when times are going good again, the roster will come back and we’d like to have that encapsulated in a deed.

PN41.

I would draw to your attention that both the Port of Brisbane and now the Port of Newcastle have been able to work through problems relating to a shortfall in capacity of permanent workers to get the allotted annual accumulated hours. We've been able to deal with that without the intervention of the Commission in any way and we've been able to do that by capturing those outcomes in a deed.

PN42.

I fail to see why Melbourne is any different and we would be seeking again to be able to meet with the company to formulate a deed that we could negotiate and we’re happy to negotiate that deed for the return of the roster, but in the intervening period there are some very severe impacts upon workers and I would suggest it’s been a long time since I’ve seen a degree of interest in a particular workplace incident or workplace dispute as this one. I’d suggest that’s because everyone behind me here has a very set of circumstances which have impacted very extremely upon their life, of which they live with a flexible arrangement within an enterprise agreement and know that within the confines of that agreement there are some capacities to be able to have planned time off.

PN43.

What we are now facing, your Honour, is a position whereby with the removal of the roster, owing to the fact that there is a reduction in the amount of available hours, and I'll deal with allocation issues aside and I know a number of the members would like to raise the question of allocation issues, which we've raised from the beginning. We believe that there needs to be an absolute capacity of workers to be able to have some form of planned time off if the roster is removed. Part A of the agreement caters for a planned time off arrangement, but it has stipulations around it that require hours to be tracking within a certain parameter prior to it being granted.

PN44.

What we’re finding is a lot of planned time off is being knocked back now and for those life events that all workers experience, there’s just no capacity now to be able to plan your life. When do go to the doctor? What are we going to do about the kids? How do we deal with single parents and all those questions? That was part of your request why a number of our members would come forward today and hopefully put that position to you. I think, your Honour, that those matters are best off left to the workers themselves to ventilate exactly the difficulty that they're having as a result of this.

PN45.

My comments around that are to say that we are not saying we reject entirely that there is a shortfall in the hours of work. That's an objective thing that’s there to see, you know, because people understand that they're not getting the same amount of work as they were. Yes, maybe it could be alleviated somewhat with a more stringent approach to an allocation process that picked up workers behind in their hours in the first instance and we believe there’s some problems there, but the main question for us is to try and find a compromise arrangement for the application of planned time off within the agreement so we have something to hang our hat on in being able to get a day off.

PN46.

We would point out that we have agreed and have cooperated with respect to the removal of the roster. We could have taken a range of matters in a number of jurisdictions, frankly, to oppose that. It’s black and white in terms of the agreement that the roster exists. We've gone with your good judgment, sir, and are prepared to work through those issues. I think in good faith the company needs to be able to make some concessions with us with respect of planned time off and ensuring that workers are given some possible ability in their life to deal with the things that everyday people need to deal with and no one stands alone in that particular question.

PN47.

So I don't think that there’s much more to be said. I'm happy if it’s of any benefit to yourself, and if requested, to recap the history of the arrangements, the way that we understand and have interpreted the enterprise agreement. I would ask why, I suppose, rhetorically, is Melbourne is so different than Newcastle or Brisbane where there’s a seeming capacity of the company to sit with the union and work through the issues in a very open and transparent way, but we’re not able to do that in Melbourne whereby it seems to me driven by – and I speculate because the company hasn't said this, but it certainly looks like it from my perspective – an opportunity to remove a long held condition of work has arisen on the basis of a downturn.

PN48.

We don’t think that’s a justifiable way to proceed for the company and we’re happy to say that we’re prepared to sit down, work through and deal with any shortfall in work issues provided that we can be given some planned time off arrangements and some certainty and that that roster comes back because that’s our right. It was negotiated. It’s in our agreement and we just think it’s an incorrect approach, an industrially, incredibly difficult prospectively if the roster is removed on the basis of a downturn in Melbourne alone when other ports are dealt with in a good faith manner.

PN49.

THE COMMISSIONER: Can I just ask in terms of the individual positions that I’ve read this morning, has any of this material been raised earlier with the company? On the last occasion – and I can say I was anticipating that there was the capacity for individuals to approach the company through the union, with the union’s assistance to say, “Look, here are my particular circumstances, can I in those circumstances come to some particular arrangement to have designated days” – you plan off. Has that occurred or ‑ ‑ ‑

PN50.

MR SMITH: No, your Honour. My understanding is that individuals have made applications for planned time off and many have been withheld or may be unknowing of the particular circumstances. I'm not certain whether upon an application for planned time off whether every individual has given an historical, personal background.

PN51.

Right.

PN52.

MR SMITH: There was certainly the perception from us that today’s hearing would give us a capacity or you a capacity to hear the broader personal ramifications of the company’s decision to remove the roster and potentially then not give our planned time off because it wasn't consistent with the terms of the agreement, but we’re in a completely different sort of area of flux and we would be hopeful that upon hearing some of the evidence given to you today and some of the stories given by workers specifically, you might be able to give consideration to the very important question of actually a practical and, I suppose, regularised approach to people being able to have a day off and, of course, we would continue to persist with the fact that there is no right of the company to remove the roster under the agreement except by agreement and through a cooperative approach.

PN53.

We are saying that we are prepared to sit down and we will suspend the roster, but we believe there must be provisions in place for the roster to return when the hours of the workforce are tracking.

PN54.

THE COMMISSIONER: There’s two things here. One is a more immediate thing with people having to face the daily desire for particular planned time off sort of event and there’s a bigger question about – there’s actually a longer term question again. There is the question here about the idea of your deed in terms of coming to some understanding about the return of a rostering arrangement under certain conditions.

PN55.

MR SMITH: Yes.

PN56.

THE COMMISSIONER: And there’s a broader that you haven't mentioned, but it’s also touched upon in some of the material that’s been provided by the individuals here and that relates to obviously the negotiations for a replacement agreement and whether it is going to be the desire of the parties to stick with this system or do something different, in fact return to the old system probably. That's another level again.

PN57.

MR SMITH: Exactly, your Honour. It was sort of like don’t mention the war. I mean, because there certainly will be an appetite. If there’s a unilateral removal without agreement of the roster, I would suspect there’s going to be an appetite to make that a bargaining issue and that potentially leads to a dysfunctional and acrimonious process where it doesn't need to be around the specific issue. I mean, the roster is there. We have never said, and in fact correspondence to the Commission agreed by the committee and the workforce had agreed that the roster would be temporarily suspended due to the shortfall in hours, we get that because the threatener on the back of it, your Honour, is that there’ll be some redundancies and the methodological approach of the redundancies is quite clear from the company, “We will pick – they won’t even be voluntary.”

PN58.

We were prepared to open up a whole raft of different approaches to how we could alleviate the economic pressure on the business. We had a number of people who were prepared to take voluntary redundancies even to immediately withdraw that value out of the system and that was rejected on the basis that if there’s redundancies, we'll pick heads. We would say that, yes, we recognise that the company is in a difficult position economically, but we would also put to you, sir, that the only way that that can functionally be resolved is through a cooperative approach where we’re reaching agreements and understanding the issues. It we understand the issues and our good faith is there by the fact that we haven't sought other relief in various other jurisdictions with respect to the removal of the roster. We’re prepared to continue to work through that, but it must come back.

PN59.

You're 100 per cent right. I don’t want to start making threats or anything like that and say, “We’re going to come for the roster and that will be the be all and end all,” but I'm not at liberty to speak for the workforce either. They will be the people from my perspective who will make the claims and it will be their claims that we advocate on behalf of and I’d be very surprised if the roster was removed that it wasn't a significant and sensible claim.

PN60.

THE COMMISSIONER: But in terms of the notion of priority, it seems to me that the first thing that arises is a mechanism for obtaining some planned time off. The second thing is negotiating a deed for the return of the rostering, if that’s capable of being achieved, and the longer term is the bigger question, “Do you want to stick with this method long term or are you thinking about changing it?” That's obviously going to be something that will start in about October or whatever.

PN61.

MR SMITH: Sure.

PN62.

THE COMMISSIONER: As I see it, that’s the continuum in the process. What I think today we should try and focus on is that very first issue because that’s the most pressing.

PN63.

MR SMITH: Your Honour, I agree. I think the men and women behind need some sort of regulated time off. Their families are suffering as a consequence of the irregularity that they face. I agree that the enterprise agreement negotiation side of things, it’s largely a question for how the company wants to handle that. I mean, obviously if it’s not turned into some sort of dysfunctional ongoing negotiation process, I think that will be beneficial for everyone and from our perspective that would require the arrangements for the return of the roster at the appropriate time.

PN64.

THE COMMISSIONER: I was looking at it beyond the idea of a roster. I mean, it’s a question of the bigger picture here. It emerged from something I read in one of the documents here about a person who had – yes, one of the individuals had recounted how they had been involved in the traditional wages and overtime system and to some extent it’s a question of whether the salary pay system, the annualised salary arrangements are something that the parties want to embrace in the next round of negotiation.

PN65.

MR SMITH: Your Honour, you've probably hit on the undoing of the outcome of the 98 dispute there. I'm not too certain there’d be a great appetite from the company’s perspective to undo some of that stuff.

PN66.

THE COMMISSIONER: It’s very hard to unravel.

PN67.

MR SMITH: And, frankly, from our perspective we would have some grave considerations around undoing it as well because clearly the economic circumstances impact significantly upon the outcome of the salary. Now, at the end of the day all we've got to do is 1820 hours to fulfil that. They're the longstanding sets of negotiations. From my perspective now, I wouldn't be advocating in any way the undoing of the salary. I think that’s too hard and I think if we start to talk about dysfunctional perspective negotiations, we’re heading right in the middle of a major storm with that.

PN68.

All of the Qube sites in the country, the ones that we deal with, there’s 14 of, all of them operate on the basis of annual accumulated hours. That's just the sort of general approach that the bulk and general side of the industry has taken because it does open up a great degree of flexibility and it wasn't our choice to go there in the first place, but it’s something that’s been cemented in place for a long time now and has a lot of history to it. So from mine, your Honour, I think that we leave the concept of the nature of claims and so on to the parties down the track, we focus our attention upon how we get some planned time off and how then we work towards getting the roster to come back within the context and within our rights of the currently existing certified agreement.

PN69.

THE COMMISSIONER: All right. Good. Thank you. Mr Reid?

PN70.

MR REID: Thank you, Commissioner. I’d probably like to invite Mr Saul to make some remarks in response.

PN71.

THE COMMISSIONER: All right. Mr Saul?

PN72.

MR SAUL: Thanks, Commissioner. It’s always interesting to hear Mr Smith’s perspective on issues and I'll address some of the points he raised, but let’s stick with some facts to update you. When we last appeared before you, Commissioner, in late November, the average hours owed by each FSE was in fact 64 hours. When we appeared before you, we covered the 18 months of negotiation, consultation, formal correspondence, published papers, to explain to you why we had taken the action we had in Melbourne because we’d engaged continuously either with the MUA or with the employee representative committee to outline our concerns and we simply were not gaining traction.

PN73.

I noted at the end of November that if the rostered weeks off process had not been removed, there was a very realistic chance that 169 hours would be owed on average by each FSE by the end of the financial year, 30 June 2015 and that was a debt paid by the company of some $380,000 and that was what we were staring at, a debt of that magnitude. Could I report back now that two months later, despite a very quiet January, thanks to a large extent by following your recommendation, the average hours owed by each FSE has actually reduced by nine per person in total down to 55 hours per person.

PN74.

If the process that we have in place on your recommendation remains as such, then 91 per cent or 29 of the 32 employees, FSE employees, will actually meet their financial year 14-15 obligation, that is, they will actually work the required hours for the money paid. And, indeed, following the current situation some 56 per cent or 18 out of the 32 employees will actually meet their 13-14, 14-15 obligations – because there’s still hours owed from last year – they’ll actually catch up those hours owed.

PN75.

The removal of the rostered period of time allows each employee between now and the end of the financial year a chance to catch up 95 hours. If the roster was reinstated then employees would lose the ability to work between 72 and 117 hours and potentially cost the company between 200 and 250 thousand dollars in wages paid but not earned. I would like to just talk about a couple of facts. Although December was a very busy month, there are eight days without shipping when no FSE was required to work and a further seven days in December when less than the full complement of FSEs were required to work.

PN76.

In January, as I mentioned, has been very quiet. In fact, there’s been 17 days, 54 per cent of the month, where no ships have worked and, indeed, no FSEs were required to come into work and they’ve enjoyed time off; 17 days this month. In terms of leave, and you are rightly interested in the provisions as per the EA for planned time off, Commissioner, over the December-January period, so since we changed the rostered process, 13 employees have asked for leave in various forms. 11 personnel have asked for planned time off in accordance with the EA provision. Nine of these 11 requests have actually been granted.

PN77.

The only two that have not at this stage been granted are where people have asked for planned time off throughout the remainder of the year when we've got no idea of how they're tracking with their work obligation. We've got no idea of shipping. We've got no idea of other people seeking similar time off, but where we can manage the time off has been demonstrated in December and January, nine people have been given the planned time off they have sought. One other person has sought annual leave and that was granted for their particular circumstance and another person has sought long service leave and that has been granted as well. So indeed more than a third of the employee base have been able to take leave in some shape or form as available to them.

PN78.

When we last met there was a request from the MUA to penalize our more poorly or lesser paid employees, our GWE and VSE, but I am comfortable to report, Commissioner, that the GWEs, who have a guarantee of only $20,000 per annum, on average have met that guarantee already, indeed exceeded that guarantee and are on track for an average pay of more than the guarantee for this financial year and, indeed, the VSE employees who are only on $64,000 per year are still on track to average above that, above $70,000 per year at the moment. So we are not as a company seeing a detrimental effect on those employees by having the FSEs work their required hours.

PN79.

I have a range of general points on the submissions that you received last night, Commissioner, but I may hold off on addressing those until perhaps we've heard from the individuals and I could summarise the company’s perspective on that. I would like to address Mr Smith’s admission that some of his points are speculation and the fact that he’s not at liberty to speak for the workforce or, indeed, what the longer term may hold. Suffice to say, that Qube has a company remains committed to engaging with the workforce. I think we have demonstrated that with the people who have sought planned time off in the last two months and been granted that time off and we will continue to work through a whole mechanism of sick leave, carers’ leave, annual leave, long service leave and planned time off to meet the whole raft of family commitments and individual commitments that may be required. At this stage, Commissioner, I’d like to pause and address broader comments on the submissions after perhaps we've heard from the employees themselves.

PN80.

THE COMMISSIONER: Can I just clarify, the two applications or requests for planned time off that were rejected, I wasn't clear on what the basis for the rejection was.

PN81.

MR SAUL: No. They haven't been rejected, Commissioner, but they haven't been approved in that this was a series of a few days each month stretching out into the next financial year. So we’re looking into the crystal ball into what’s happening in August, September, October, November, December in terms of seeking days off. Before we've got a sense – one of the obligations as part of the EA for planned time off is that a person is tracking with their hours. Now, we don't know in the circumstances whether people are tracking with their hours.

PN82.

THE COMMISSIONER: But couldn't that be conditionally approved on that basis?

PN83.

MR SAUL: We could so long as it’s understood – and I suppose one of the issues is in seeking fairness there that if people are seeking time off over holidays or over, you know, various recognized periods of time then others, you know, who may seek the same time, that we can ha a negotiation when the time comes. We don’t want to make it difficult. Likewise, we don’t want to cement arrangements and seek an expectation six or eight months in advance based on a rope campaign of testing the waters. Where we've been able to manage the December-January period, which is important to many people for holidays and family reasons, I think the fact that nine people have enjoyed planned time off as requested and other people have had other leave as requested demonstrates the company has got a mechanism to meet that expectation. I think that is a fact. It’s not a speculative measure by other representatives.

PN84.

THE COMMISSIONER: In terms of the proposition that’s been mentioned about what I'll call a rostering return deed?

PN85.

MR SAUL: Commissioner, the only thing that prompted, I’d suggest, a focus on a deed by the union has been the appearance here and the recommendations that have come, frankly, you know, collectively that has forced them because we certainly had no meaningful engagement or traction for 18 months, as demonstrated previously to you.

PN86.

THE COMMISSIONER: Let’s not look backwards, let’s look forwards.

PN87.

MR SAUL: No. 18 months, it’s very clear from our perspective that there needs to be a fundamental change in the Melbourne business and that was communicated a year ago – years ago and it has not been acknowledged.

PN88.

THE COMMISSIONER: I think to this extent the union has said it’s somewhat, or very reluctantly, been prepared to countenance the suspension of the roster. That's how it approaches it. What it’s saying is that it wants to negotiate particular terms that might see its reintroduction. Do you have a position on that at all or ‑ ‑ ‑

PN89.

MR SAUL: We do, Commissioner, because we were sitting in March 2014 discussing the situation of unworked hours. We still had unworked hours at the end of the last financial year. We tabled a – and I hate to harp on this, but we tabled the mathematical facts of what the business circumstance were and it was borne out by the fact that the hours weren't met. This idea of holding up a mythical return has not been proven over the last two financial years and it is counterproductive. You know, business has fundamentally altered and we must alter to meet it.

PN90.

That was a discussion 12 months ago, properly documented. No one has acknowledged it from the union perspective and properly briefed, I believe, the employees on what that actually meant.

PN91.

THE COMMISSIONER: Has the business elsewhere entered into this sort of arrangement, though?

PN92.

MR SAUL: Into a deed?

PN93.

THE COMMISSIONER: Yes, if it’s a deed document or it’s an exchange of letters or whatever it might be, but ‑ ‑ ‑

PN94.

MR SAUL: In Newcastle there is no seven and one rosters, anyway, Commissioner, so I'm not sure what they’ve entered into. I know that they were very much behind hours there and Mr Reid may be able to comment on the nature of their circumstance and Brisbane may or may not be able to trade its way out, but we’re certainly not seeing any evidence over the last 18 months we've engaged with the union that there’s a silver lining here and it’s not speculation. It’s documented. It’s factual and, you know, it’s quantified and that’s the issue.

PN95.

THE COMMISSIONER: The quantification, though, that we’ve touched on now is that by and large, at least to the extent of 91 per cent, if we stay with the existing arrangement, the target will be met. That's the position, isn't it?

PN96.

MR SAUL: Absolutely.

PN97.

THE COMMISSIONER: Yes.

PN98.

MR SAUL: That is with the rostered weeks off removed, Commissioner, just so there’s no ‑ ‑ ‑

PN99.

THE COMMISSIONER: Yes. That's what I'm saying. Yes.

PN100.

MR SAUL: Yes.

PN101.

THE COMMISSIONER: You're staying with the suspension of the roster.

PN102.

MR SAUL: Yes.

PN103.

THE COMMISSIONER: So your concern is any reintroduction between now and June 30, that 91 is going to go to ‑ ‑ ‑

PN104.

MR SAUL: It simply can’t meet it.

PN105.

THE COMMISSIONER: It could be as low as, what, 40, 50 or something?

PN106.

MR SAUL: Absolutely, absolutely. It came back to the point you raised at our first hearing, Commissioner, we’re not seeking extra work or extra commitment, you know. We’re simply seeking people to have the opportunity to work for the money that’s already been paid.

PN107.

MR SMITH: Your Honour ‑ ‑ ‑

PN108.

MR SAUL: And I'm not sure how we can continue as a company to bear two, three, four hundred thousand dollars debts and be sustainable.

PN109.

MR SMITH: Your Honour, could I make a couple of comments?

PN110.

THE COMMISSIONER: Sorry, have you finished?

PN111.

MR SAUL: Yes.

PN112.

THE COMMISSIONER: All right, thank you. Yes, Mr Smith?

PN113.

MR SMITH: Maybe Mr Saul could confirm, but I understood that what he’s just told us is that since November 28, over a period of two months, as a consequence of the removal of the roster, on average everybody is nine hours closer or nine hours better off. Now, that was the figures that were given. I wouldn't think that nine hours over two months is immensely earth shattering. It’s one shift. So the removal of the roster, I don't think is as fundamentally important as Mr Saul points out. We accept that we would be flexible with working in that period where we would have been rostered off because we want to get our hours and we understand that there are sometimes negative ramifications if we don’t get our hours.

PN114.

I would point out that the previous period of time that Mr Saul discusses with respect to March 2014. They were discussions about us fulfilling our obligations with respect to unfulfilled hours being rolled over. We did that. The hours have been rolled over. Our obligations in our collective agreement were met. The hours were rolled over. We enter into a new year and from that period of time into the next year, if there is further ongoing uncertainty with respect to our general collective capacity to be able to achieve our annual accumulated hours, the same process should be entered into and that is we sit down. We go through the clause 9.1.3 in the agreement which indicates a whole range of measures that the parties put into place via agreement that allow and cater for the rollover of the hours; nothing in there about taking away rosters or anything like that.

PN115.

So all of the data, the evidence that was put forward previously was about that particular time frame for the rolling over of our hours which we cop sweet and we did and we’re wearing that now and we've got more hours as a consequence of the work. We can accept that. The whole point that the business has fundamentally altered is just a myth. It’s a myth. There’s absolutely no evidence anywhere to demonstrate that the nature of the business has fundamentally altered.

PN116.

I don't think we need to give you an economic lesson, your Honour, but the form of economy that we live in is prone to booms and busts. It’s prone to cycles and those cycles can be impacted upon from anything such as, you know, the oil price to, you know, the capacity of China’s economy to grow in its own right. There’s so many factors. The world hasn't changed to such a massive extent that there’s any justification for Qube to say anywhere, “The business has fundamentally altered.” It has not. It is the same and we’re prepared to continue on that same basis.

PN117.

It seems to me that all Mr Saul has done is demonstrate the fact that removal of the roster only had a minimal effect. Okay. We’re not going to try and stand in the way of that minimal effect. If it’s a minimal advantage and it’s going to maintain our job security employment, we'll cop that sweet, but there’s no reason why there’s any justification based upon fundamental alteration to the business and the nature of the economy that everything is changed to the extent that the roster can be removed. It’s a myth. There’s no evidence given on that basis I would suggest either. It’s just thrown out there to make it sound like the world has tipped on its head.

PN118.

I don't see why we can’t sit down and why we can’t have a process. We said before if our hours track consistently over a three-month period, consistent with the nature of accrual of our annual accumulated hours, the roster should come back. That's a demonstration that things are starting to turn in terms of an economic cycle and that’s the only thing that changes here. You raised some questions. It would be interesting maybe if we did go into a history lesson about this all before, but when we did talk wages and overtime, when there was no work we went home. We weren't picked up and we were paid.

PN119.

The whole basis of the system that we've gone to has given the employer such immense flexibility and has quarantined them entirely from the previous concept that actually drove probably the Patrick dispute in many respects from an employer’s perspective and that was the removal of idle time. They’ve got that. We've removed idle time. So in previous circumstances when we talked about wages and overtime, for all these days we would have just been sitting at home getting the base rate and now we’re not. We’re out there trying to seek to make sure that every hour – and Mr Saul doesn't let - you know, if you work 30 seconds, he wants it out of you. There’s no doubt about it and they’ve made that quite clear.

PN120.

I would contend that the evidence put forward by the company doesn't really show us anything and certainly doesn't show us anything with respect to the roster having as great an impact as what’s been indicated. Again, I put it forward very clearly, the roster should come back, but we’re not asking for it to come back until such time as the economic circumstances within the company can sustain it. That's not a big ask, your Honour, and it’s something that we've already agreed to and is certified in our agreement.

PN121.

THE COMMISSIONER: I think in that respect that’s something you're going to need to discuss with the company outside of this forum, so to speak, that is I think you need to develop a proposition to say to them, “Look, we think if these measurements or criteria are met then that should be sufficient for the reintroduction of the roster,” or the other thing here is whether there would be expiration of a variation of the original roster, whether it involves a full week of time off or a lesser period is something that might have to be thought about.

PN122.

MR SMITH: Yes. There’s an historical basis for a seven and one roster. It would probably take me a good half to go through that and I'm happy to maybe do that for you in writing, your Honour, if you would like the history of a seven and one roster and the basis for it. We forewent the eighth hour in a roster in terms of payment and it was over a seven-week period, one hour a day adds up to a 35-hour week, which was the basis of the eighth week off. None of our respective pay arrangements have taken into account that eighth hour pay at double time, which it should have been. So we open up these things in saying we vary them. There’s economic claims come from our perspective as well.

PN123.

THE COMMISSIONER: I'm just putting that into the mix of things in terms of what I see as the medium term position, that is the basis upon which there might be agreement that the roster would be returned, whether it’s seven one or some alteration of that, I'm just throwing that in as an issue, but that’s a medium term matter. A short term matter is this planned time off mechanism. That's the thing that I think needs to be looked at first of all. The message that the company is giving me, Mr Smith, is that, “We haven't really rejected any requests for planned time off,” or there are only two.

PN124.

MR SMITH: Commissioner, if you will, I just want to pick up on the company’s position about the GWEs and the VSEs exceeding their guarantee.

PN125.

THE COMMISSIONER: Yes.

PN126.

MR SMITH: David Saul mentioned that the GWE were exceeding, almost doubled it, and the VSE will be well exceeding his guarantee. But he doesn't mention also these people underneath the agreement are entitled to groups of 25 per cent – of each group is entitled to be off at any one time. So by saying they’re taking their 25 per cent off, they're still meeting their guarantee on both situations, I still can’t understand why the removal of the roster where it only covers around about 15 per cent off at one time can’t be worked, you know, it can’t be maintained. So one group of workers, they’ve got the right to be off in that they don’t have to meet any minimum manning. The first 25 per cent, they put their application, he’s granted the time off, but with the FSEs, the permanent labour, it’s got restrictions around tracking off hours and all those other issues that we've raised. So I just want to make your Honour aware of that, you know, that they have got time off and that they're not 365-day allocated.

PN127.

THE COMMISSIONER: I suppose what I'm keen to try and see whether some progress can be made in respect of the mechanics of the planned time off, we’re in this suspension of the roster period. We've got a medium term question about whether there’s any likelihood of the parties agreeing on a return to a roster, seven and one, or some variation of that. That's a medium term question. The short term and the more critical question for today was how do we try to accommodate as best we can the work, life, balance issues that are jumping out of the documents that I’ve been reading this morning.

PN128.

The company says to me, “Okay. We've got this mechanism here and we've had 13 requests and only two have been rejected and we've got an explanation for that. What’s the problem?” And that’s really what I'm trying to explore. Is there something that needs to be added or altered in respect of the process for obtaining some planned time off so that people can say, “Well, okay, if it is the school speech night Friday week, I can put my request in and there’s a degree of likelihood that I'm going to get that time off.” That's really what we’re looking at.

PN129.

MR SMITH: The hurdle with the clause, your Honour - I'm not sure whether you've got the agreement at ‑ ‑ ‑

PN130.

THE COMMISSIONER: I’ve got it in front of me.

PN131.

MR SMITH: ‑ ‑ ‑ 9.1.2. It stipulates in 9.1.2A to .1 that the FSE is on track with accumulated hours being within 36 of the pro rata requirements.

PN132.

THE COMMISSIONER: Yes.

PN133.

MR SMITH: That's the problem.

PN134.

THE COMMISSIONER: All right.

PN135.

MR SMITH: The reason the roster was suspended was because we were behind in hours and to give us the best opportunity to be able to claw them hours back, it gives us in fact 6.5 weeks for every FSE extra availability. That's what the removal of the roster in fact does. So there’s an extra six and a half weeks. We can contend that that is a significant concession because the contradiction obviously, your Honour, is the only reason the roster went was because we were behind in hours and because we’re behind in hours that negates our capacity to be able to utilize the planned time off.

PN136.

THE COMMISSIONER: All right. That's an important aspect of this. Maybe we need to give some thought to that, whether there is a sort of freeing up of this mechanism a little bit whilst we’re in this period of the suspension. Maybe that’s we need to look at.

PN137.

MR SAUL: Commissioner, if I could just table some facts perhaps as to how things are running, just quickly to highlight to Mr Smith that December was a busy month and that actually allowed us to claw, you know, to gain 37 hours back owed by the FSEs because, you know, people were fully available. I just say that that’s critically important because that’s a saving of tens of thousands of dollars in terms of wages paid but potentially not earned. So to say that the roster removal hasn't had any effect, it’s had a significant effect to the benefit of all personnel in terms of sustainable base.

PN138.

If I could note, too, that – and I don’t want to mention names in this forum, but a number of the individuals who sought planned time off owe substantially more than the designated sort of hours model in the planned time off clause and we were happy to meet that request. It might have been a day or two here or there. It wasn't material to them losing – to running off track or anything like that and at the end of the day, the fact is that that planned time off was granted, almost regardless of the amount of time owed.

PN139.

There will be a point – and I think you mentioned rightly, the mutual obligation issue at our earlier hearings that if a person owes hundreds of hours to then keep tracking down that path without them looking at, you know, their own leave, annual leave provisions, I think it counterproductive. The absolute agony here that doesn't affect employees in the other, you know, 12 Qube sites is the fact that when you're tracking with hours, planned time off is rudimentary. It is no big deal. There’s no issue because, you know, you're not chasing those hours that you're owed.

PN140.

So if you seek a week off then it’s granted and it’s normal business. The trouble in Melbourne is that we’re always chasing our tail in trying to catch up hours because of this rostering system. If we could get to normalcy, it would be – as indicated quite genuinely between December-January, you know, 11 people apply and actually the nine people that were granted were for that period. So nine out of nine granted and that is actually normal business when you're tracking close to hours.

PN141.

There’s a process in the EA for the planned time off. It works elsewhere and we’re seeking that normalcy here in Melbourne where, you know, regardless of speculation, economically, things have fundamentally changed.

PN142.

THE COMMISSIONER: But what if a person came to you tomorrow and said, “Next week I’ve got a particular family responsibility,” whatever it might be, “and I don’t want to work. I don’t want to have to be obliged to work. I need some planned time off, but I know I'm tracking badly at the moment in terms of my target, but this is a matter I really do need the time off,” it wouldn't necessarily – their particular personal circumstance in terms of their tracking for their hours would exceed the requirements of the EA, how would that request be dealt with?

PN143.

MR SAUL: Commissioner, although you said not real good history, all I'm saying is in December-January people came to us in that absolute situation and the time off was granted.

PN144.

THE COMMISSIONER: And more than 36 hours outside their ‑ ‑ ‑

PN145.

MR SAUL: Absolutely.

PN146.

MR REID: Your Honour, now those people are sitting here. I'm not about to embarrass them.

PN147.

MR SMITH: We wouldn't that either, but maybe it’s how you look at this as well. A couple of things have been said that maybe just give a different impression of how things actually are. If we’re saying that there is no work, if you put planned time off in and there’s no ship, inevitably you are going to be granted. Right? There’s no ship. You blow a day off. You didn't have to do anything. You would have got the day off anyway because there’s no ship.

PN148.

THE COMMISSIONER: Yes.

PN149.

MR SMITH: Right? So there’s no great wonderful Santa Claus, you know, coming down throwing days off at us. It’s not happening. Now, the question for us is what happens if I have a particularly pressing personal engagement and there’s a ship in? That's the question because it’s also, “Yes, we might be getting a few days off,” but also doctors don’t run on our schedule and like you mentioned the school and so on, they don’t necessarily run on our schedule. These are things that crop up in our life that may occur when a ship is in and the ability for people to be able to let go on those days when there’s a ship in, I think becomes the question.

PN150.

Just also because of the removal of the roster, 37 hours was dragged back in December. I would point out, just maybe put it on the record, that only 50 per cent of the workforce at max would have actually been due to have a rostered week off over an eight-week cycle because the cycle goes for eight weeks. So only half the workforce were going to come near a rostered week off over December. So the fact that everyone else is out there working, 50 per cent of them would have seen a rostered week off for one week in December, the bottom line is there was more work. That's why the hours come back, not the roster, you know. The roster – it just doesn't add up. The roster was the key thing. Again, I'm not blueing about it, but the reason that we are getting this harping on the permanent removal of the roster and this complete total restatement of economic changes that are fundamental that is not true and no evidence is to justify the permanent removal of a very dear condition to workers in this industry.

PN151.

I agree we'll go back to the planned time off, your Honour, but these things are said for a reason on record and they're used as a mechanism to continue to undo our position and, quite frankly, I don't think there’s 100 per cent correction behind them, some of the statements made.

PN152.

THE COMMISSIONER: Anyway, let’s return to the issue that we should be focused on which is the question of whether we need to look at any understanding of modification to the planned time off mechanism and we can then return after that to how we approach this question of whether the parties can attempt to reach an agreement on circumstances that would be understood to provide for a return to either the seven and one roster or some other variation. You may not get agreement on that, but you ought to try and obviously if there’s no agreement, I'll hear about it. That's going to be inevitable

PN153.

Let’s go back to this earlier more pressing issue, this immediacy of events in the next week, months or so forth. There’s been this material provided by certain individuals. I’ve read it all. As I say, there are some personal circumstances there. I'm not sure that these individuals necessarily need to disclose those publically. I'm not sure how you might want to handle that. If there are people who wanted an opportunity to speak in this forum to me about any of that, I'm quite happy to hear from them. I appreciate their concerns, but if they want a chance to speak to me then I'm quite prepared to provide for that, if that’s what you want.

PN154.

MR SMITH: Your Honour, we came here with that expectation that there would be an opportunity for people to express a view on these things and they’ve taken some time to actually put these things down and record them. Obviously, it’s up to the individuals who have made statements, but I'm more than happy to have the floor handed over to those individuals.

PN155.

THE COMMISSIONER: Do they want to do it on or off the record, I suppose that was the thing, because there are some personal issues that are touched upon here, and sometimes it’s ‑ ‑ ‑

PN156.

MR SMITH: I think off the record. Maybe if we moved off the record, it might be beneficial in that respect.

PN157.

THE COMMISSIONER: Mr Reid, obviously if we go off the record, the people that aren’t directly connected to the matter have to leave, if they haven't already, but ‑ ‑ ‑

PN158.

MR REID: I think it’s a material part of the proceeding, Commissioner. I would have thought this was an on the record proceeding.

PN159.

THE COMMISSIONER: You want to leave it on the record?

PN160.

MR REID: Absolutely.

PN161.

THE COMMISSIONER: Yes.

PN162.

MR REID: I mean, we have published documents that are on the record.

PN163.

THE COMMISSIONER: It’s obviously not evidence in the formal sense because we’re not in the hearing process and I think if we recap a bit, the reason why we stayed on record was because after the first conference, I was concerned that positions were being represented as the Commission’s position.

PN164.

MR REID: Yes.

PN165.

THE COMMISSIONER: So we wanted to make sure we didn't get into that dilemma again.

PN166.

MR SMITH: Yes, but not by us.

PN167.

THE COMMISSIONER: It doesn't matter who by. Look, I think if you're content with this: there’s obviously no reason for any of these individuals to necessarily disclose the personal factors that are mentioned in the documents they’ve put forward, but if they want an opportunity to broadly state their position in respect of the concerns that obviously emerge from this, I'm quite content to hear from them individually now if they want to.

PN168.

MR SMITH: No objection, Commissioner.

PN169.

THE COMMISSIONER: All right. Should we do that?

PN170.

MR SMITH: Would it be of some benefit for us to have a five-minute adjournment to organize such?

PN171.

THE COMMISSIONER: If you like. If you can work out a sort of order of who wants to say something, who doesn't want to say anything and so forth.

PN172.

MR SMITH: All right.

PN173.

THE COMMISSIONER: So we might just take five minutes to sort that out. We'll take a brief adjournment.

SHORT ADJOURNMENT [12 PM]

RESUMED [12.12 PM]

PN174.

THE COMMISSIONER: We’re resumed and we’re still on record. All right. Mr Smith, how are we going to deal with this?

PN175.

MR SMITH: We have the correspondence that was sent to you yesterday, your Honour.

PN176.

THE COMMISSIONER: Yes.

PN177.

MR SMITH: We'll proceed in a straight line down the list from there. So Dave will facilitate that from there. Thanks, your Honour.

PN178.

THE COMMISSIONER: All right. So the individual that wants to speak should just come to the – otherwise we won’t pick them up on the microphone so they’ll need to come and sit sort of near you.

PN179.

MR SMITH: They can have Mr Jacka’s chair.

PN180.

THE COMMISSIONER: Yes; or stand if they prefer to stand.

PN181.

MR SMITH: Eugene Simpski, the first one.

PN182.

MR SIMPSKI: Commissioner, my name is Eugene Simpski. I’ve been on the waterfront since 1974. That's just a bit over 40 years, coming on to my 41st year. I have seen a hell of a lot of changes in my time and the seven and one roster was the best system you could possibly have done there regarding the shift work because we work a lot of irregular shifts and in one week we can work midnight, afternoon and day all in the seven days and that tears your body and your eating system and sleeping pattern out to pieces, like you don’t get a normal night’s sleep. You're lucky if you get two hours, three hours, and you're fatigued. You're not concentrating the next day and it’s just completely out of whack, your whole system.

PN183.

That seven and one, you look forward to that week off so you can make arrangements to see your doctor, get a tradesman if you need things to be done around the house, get your car serviced, go out with your wife to a restaurant or go out somewhere, to the pictures together, as you can’t do this when you're working. Now, you ring up at 4 o'clock in the afternoon to get your orders for the next day, but they say, “You've got idle time. There’s no ships.” You try and make a doctor’s appointment. The receptionist will tell you, “Look, it’s three weeks in advance you'll have to make it,” and I can’t make an appointment three weeks in advance as I don’t even know what I'm doing the next day.

PN184.

I’ve just had a triple bypass, had a valve done in my heart and I have to see a cardiologist now every three months, my own GP every eight weeks and I can’t make appointments because I just don't know when I'm working and when I'm not working. So to me it’s very vital that I have a seven and one roster to have some sort of normal life, plus now I’ve got grandkids which live in the country and, you know, I'll be lucky if I see them four times a year and they're growing up and I'm sort of missing out on that, too, and that’s about all I can say.

PN185.

THE COMMISSIONER: But if you know your doctor’s appointment is going to be, say, in two weeks or three weeks’ time ‑ ‑ ‑

PN186.

MR SIMPSKI: No. If I make a doctor’s appointment.

PN187.

THE COMMISSIONER: No. If you go and make it and then you say, “Okay. I need 10 February off,” or whenever it is, why you can’t go and make a request for planned time off?

PN188.

MR SIMPSKI: Because nobody knows if there’s any ships. If there’s ships in, it’s pretty hard to get any time off. I usually go sick. I usually take a sick day, but I can’t go sick because I don't have any sick days. I was on ‑ ‑ ‑

PN189.

THE COMMISSIONER: I think the solution to your problem whilst we’re in this twilight period of the suspension of this roster, frankly, the solution to your problem has got to be an individual application for planned time off for one of these events that you're talking about.

PN190.

MR SIMPSKI: Yes. Well, that’s how I used to do it on the seven and one because I used to take my diary to the doctors and say, “Right. I'm available ‑ ‑ ‑ ”

PN191.

THE COMMISSIONER: Yes, I understand that.

PN192.

MR SIMPSKI: ‑ ‑ ‑ “these days”.

PN193.

THE COMMISSIONER: But what I'm trying to find here is a solution which in the interim period until this is sorted out in a more definite way can still accommodate that need. Now, if you've got a doctor’s appointment on 10 February, you can go and make that doctor’s appointment. You can make an application for planned time off. All right. Now, if for some reason it’s not approved then you have a problem. You have to cancel that appointment and look for another day, but if it’s approved, my understanding is effectively you're guaranteed, you can go and see your doctor.

PN194.

MR SIMPSKI: What happens if I don’t get it approved?

PN195.

THE COMMISSIONER: I beg your pardon?

PN196.

MR SIMPSKI: What happens if I don’t get it approved on that day?

PN197.

THE COMMISSIONER: That's what we need to look at. We need to look at when planned time off is rejected what mechanism there is to deal with that. That's the sort of crucial issue we've got at the moment. There are some broader long term questions. I certainly appreciate what you're saying about the seven and one roster and because your seven weeks is such an irregular pattern at work, I understand, but it’s not even like other shift work where you're doing day, afternoon, night and whatever it might be. I accept that it’s so irregular and that you say the eighth week off is in a large part needed because of the nature of that work. I understand completely the point you're making.

PN198.

The difficulty we've got here is that the way in which the annualised hours problem started to emerge, keeping that eighth week set aside for everyone was going to lead to significant problems when we got to the end of the financial year. People’s hours were just going to be way, way under what was needed.

PN199.

MR SIMPSKI: Okay then.

PN200.

THE COMMISSIONER: Thank you very much.

PN201.

MR SMITH: Your Honour, the next statement will come from Shannon Smith. On your hand up is attachment marked MUA 2SS. Shannon?

PN202.

MR S. SMITH: Thanks, Dave. Your Honour, my name is Shannon Smith and I’d like to start by thanking you to take the time to read my impact statement. As you can see, my wife has had two stillborn pregnancies in the time from 2005 to 2008 and is heavily pregnant at the moment. Around this time, around the 20-week mark, was when we found out in routine ultrasounds that she lost the babies. Excuse me. It wasn't until December just gone we realized that she was pregnant after an overseas trip. So all doctors were alerted to the fact that she was pregnant again and like previous pregnancies, she was classed high risk. So seeing blood doctors, obstetricians and regular ultrasounds are in a four to seven-week cycle. So she has double the amount of ultrasounds than any normal pregnancy.

PN203.

So when all these appointments were made, it was based around my roster week off. I was lucky enough in the two previous pregnancies to be in attendance when she was told and with this pregnancy I’d hate for her to be on her own if this was to happen again. I haven't applied for the time off six months, a month down the track as I was aware prior to today that two people had put in for long term days off and were denied based on shipping requirements and not tracking in the hours. So I haven't gone down that path as yet.

PN204.

Coming out of today, I will write down the dates and approach the company and see what their response is, but up until today I haven't gone down that path based on the two previous employees being refused and that’s it.

PN205.

THE COMMISSIONER: All right, thank you. I think that’s what you should be doing, making those sorts of formal applications for these days off when the ultrasound - you know the ultrasounds are going to be booked on a particular day, make the application and let’s see what happens.

PN206.

MR S. SMITH: Okay. Thank you.

PN207.

THE COMMISSIONER: All right, thank you.

PN208.

MR SMITH: If your Honour pleases, the next statement will come from Marlene Deveraux. Her attachment is MUA 3MD, although the statement hasn't got a name to it, there’s nine dot points on it and refers to the Commissioner.

PN209.

THE COMMISSIONER: Thank you.

PN210.

MS DEVERAUX: My name is Marlene Deveraux. I’ve worked on the wharf for 14 years. I realise the business on the wharf has slowed down and that we probably have suspended our roster. I think what we need to do is definitely have a deed put in place so that if business does become busy again we have that capable time to allow us to work and have time off so that we can regroup and because sometimes we can work up to 70 hours a week. I also know that if we could have planning days now put in place that would help immensely with appointments and doctors’ appointments and even servicemen coming to the house or, like me, grandmothers’ day at school, et cetera.

PN211.

As I’ve heard by a lot of my colleagues that the planning days that have been granted have been granted on days where there are no ships in. So, therefore, I'm led to believe that not too many, if any, have been granted when there are ships in, which is totally unacceptable. So if there’s a ship in, you won’t get your planning day. I’ve also spoken to my colleagues in the last few days and I know a certain couple of my work colleagues have asked for Monday, Tuesday off to the allocator as planning days. They’ve been told that there are ships alongside and that there will be no planning days given. So, therefore, we can’t - I think we need to have planning days in place to make appointments and to ring up at 4 o'clock and cancel appointments, sometimes that comes with fees. So, yes, I think we need to go down the path of definitely having planning days off, but not just when there’s no ships in, provided we give the company plenty of notice that we - you know, at least a week or two that we have these engagements, I think that’s what we need to head along that path.

PN212.

THE COMMISSIONER: All right, thank you.

PN213.

MR SMITH: Your Honour, the next statement will come from Steve Campbell and it’s the MUA attachment – MUA 4SC is his impact statement.

PN214.

MR CAMPBELL: Commissioner, you've got my impact statements. I won’t really go into that. You've read that, which I thank you for. We agree, yes, business has turned down. I'm part of the ERC committee that’s had all these meetings and letters and all that stuff, so I understand it as much as the union guys here do and the people behind me do. We had a letter sent out by David about anyone’s personal circumstances and it was dated 1 December 2014. I had a 12-month roster where I had a week off every eight weeks. I had a black weekend in between there, so it was a 12-month roster.

PN215.

I went to the trouble of – because I'm a father, for a start, went to the trouble of asking for a 12‑month roster. I was one of the guys – revolved around my kids. I'm a single father, sorry – having my kids every second weekend. I wasn't unreasonable. I didn't ask for a whole weekend off and this I put in I was available to work on the Friday after day shift so I can pick my kids up. I wanted every second Saturday off so I could spend a full day with them and on a Sunday I would work either a twilight or a night shift and any other days in between where there was no ships, I’d make up time and I always had that because while we’re on the roster, when I worked I made up that extra time when I had that full week off. I’d say to my kids, “Yes, I'm here. I can’t have you this weekend, but I’ve got that full week off or I’ve got the black weekend in between,” I'll swap their mother, do whatever, having the extra days at this stage.

PN216.

I wrote that plan down on 9 December; haven't even got a response, not a yes, not a no, nothing, no response, because that’s what I have to do. I was on a 12-month roster and I’ve been on the wharf for 29 years now. I tried to accommodate losing the roster. Okay. So I need time off with my kids. Here’s the 12 months where I want one Saturday every second week. That's all; and not a response from Travis or David, but it was directed to Travis because that’s what the letter stated on 1 December.

PN217.

Also in my impact statement what you've read, my mother is ageing. My dad has been put in a home, you know. We'll go through all the stories, everyone has got stories about their lives and I think you've touched on – I ask for leave when I need it. I don’t ask for it I when I want it, I ask for when I need it. So for me to go to Travis or David, “I need three weeks off” – or, sorry – “two days off in the next three weeks,” I expect to get that because I'm making myself available now for 47 weeks of the year. Originally, it was seven weeks, every seven weeks, seven days a week except for that black weekend in between, it was that full seven weeks, 24 hours a day I was making myself available. I don’t take sick days. You know, I take them when I'm really crook, but other than that – so as far as the planned time off, you touched on it again that we can’t afford to ask for a day two, three weeks in advance and that’s why I tried to make it easier on these guys asking for a full 12 months because it’s all around having my kids and not a reply. I don't know where we go from here with that, but like I said, I ask for time off when I need it, not when I want it.

PN218.

I’d like to have, you know, times off in between, but the week before Christmas, we worked 68 hours and I mean, I did every hour and like they said in January, “Yes, we’re a little bit quieter,” but that really doesn't help my situation. So that’s all about I’ve got to say to you. Thank you.

PN219.

THE COMMISSIONER: All right, thank you.

PN220.

MR CAMPBELL: Thanks.

PN221.

MR SMITH: If your Honour pleases, the next two people that will come up to the microphone will be in this order Leigh Watson and John Connally. Leigh and John didn't put an impact statement in, but they’ve asked if they can address the court as well.

PN222.

THE COMMISSIONER: All right.

PN223.

MR SMITH: Leigh and then John.

PN224.

THE COMMISSIONER: I'll just get the name. The surname is?

PN225.

MR WATSON: Watson.

PN226.

THE COMMISSIONER: Watson?

PN227.

MR SMITH: L-e-i-g-h, W-a-t-s-o-n, Leigh Watson.

PN228.

THE COMMISSIONER: Thank you.

PN229.

MR WATSON: Good afternoon, your Honour. My name is Leigh Watson and I want to speak about my circumstances today. I'm the father of a 12-year-old daughter who lives with her mother. In 2006, we had consent orders drafted up that were revolved around the seven and one roster, annual leave, close bought days, as well as other certain important days throughout the year because these were the days I could guarantee to be there for her and look after her. The seven and one roster is very important as it has allowed me to have uninterrupted periods of time with my daughter every eighth weekend and a weekend in the middle of the seven-week cycle.

PN230.

She comes and stays with my family and I during these times. The seven and one roster has been a crucial and constant mechanism for allowing me to spend significant and substantial time with her and be involved in her normal day-to-day activities. We have both looked forward to this time every time for many years. The seven and one roster has allowed me to not only remain an integral part of her life, but to develop a loving bond and a strong father/daughter relationship.

PN231.

The seven and one roster has provided a set, regular and consistent routine that has made me feel like I am fulfilling my role as a responsible parent. The suspension of the seven and one roster has created emotional anxiety, stress and worry for my family. It has become problematic because I cannot fulfil the arrangements and my obligations as a father set out in the consent orders. At present I do not owe any hours from the last financial year and this financial year I am up to date, but yet I find myself in this predicament.

PN232.

The last financial year I took on a degree of personal accountability and worked closely with the company to reduce unworked hours using the options outlined by them to achieve this. I cannot understand why these options to reduce unworked hours are no longer available. Instead the seven and one roster I rely on so much to have a relationship with my daughter is suspended. Under the current planned time off arrangement, I am now on roster 47 weeks of the year and if I fall 36 hours behind pro rata requirements, potentially I cannot plan a day off to spend with my daughter outside annual leave.

PN233.

As a father I need and require the seven and one roster as it accounts for 50 per cent of the total visitation time with my daughter throughout the year. This being the case, I find the suspension of the seven and one roster extremely disappointing and the predicament that I am in alarmingly stressful. The seven and one roster has always been an integral part of my daughter’s life growing up and it has always given her and I something to look forward to. In the future I'm not sure how I can foster and maintain our relationship I have built up over many years when she does not know when she can plan to spend the day with me.

PN234.

This particular week in the cycle was supposed to be my roster week, but I was one of the people who took annual leave because I'm at a bit of a loss here on where to go from here because we've got three parties involved, myself, the mother of the child and the company and the planning days off I kind of need to know in advance. So for me to put in for time off and be rejected is – first of all, it’s outside the consent orders and, yes, the planning days off without not knowing in advance, letting other parties know, doesn't really work for me.

PN235.

THE COMMISSIONER: Could I just ask you this: because of the downturn in work and I think everyone has acknowledged that, you were so significantly under your hours at the end of the year or at some point in time that there was no means to make up those hours, would you be prepared to consider something that recognised the fact that you hadn’t reached those hours?

PN236.

MR WATSON: I did reach my hours, your Honour, and there was mechanisms in place from March 2014 to the end of that financial year where you had the option to move your rostered week to quieter times when there was no work or you could actually work days in your rostered week.

PN237.

THE COMMISSIONER: Yes. That's what I'm contemplating here that there’s going to be a point in time if you were to say, “Well, my personal circumstances are such that there’s justification for me continuing to have the eighth week off,” but with the downturn in work by June 30 or March next year, or whenever, there’s just no capacity for you to have made up those hours, what do you do then?

PN238.

MR WATSON: That's the question, your Honour. I mean, one thing I personally can do is try to go back and mediate a different set of orders, but I can’t see how I can do that with the planning day arrangement the way it is because I need to know ‑ ‑ ‑

PN239.

THE COMMISSIONER: Because you don’t have any certainty. You need a regular day or days.

PN240.

MR WATSON: Yes.

PN241.

THE COMMISSIONER: How many of the days of the week – do you get access for the entire week or how does that work?

PN242.

MR WATSON: Yes.

PN243.

THE COMMISSIONER: All right. Certainly your circumstances are significant in that these other things have been planned around that roster, the access arrangements.

PN244.

MR WATSON: I just feel like ‑ ‑ ‑

PN245.

THE COMMISSIONER: I think against that, if you were to be able to justify for you personally the maintenance of that eighth week off, there has to be some capacity for you to similarly say: well, if that leads to, because of the downturn in work, this massive of under hours then we have to do something about it. There has to be some means by which that’s addressed surely.

PN246.

MR WATSON: That's correct.

PN247.

THE COMMISSIONER: That's only fair. That's only reasonable.

PN248.

MR WATSON: Yes.

PN249.

THE COMMISSIONER: All right. Very good. Thank you.

PN250.

MR WATSON: Thank you.

PN251.

MR SMITH: Your Honour, finally, John Connelly. There’s no impact witness statement, but it’s John, J-o-h-n, C-o-n-n-e-l-l-y for the record.

PN252.

MR CONNALLY: A-l-l-y.

PN253.

THE COMMISSIONER: A, is it?

PN254.

MR SMITH: Sorry.

PN255.

MR CONNALLY: Yes, your Honour. My name is John Connally. I'm in a situation I'm a father, I'm a grandfather. My three teenage grandsons under circumstances that they are now, they live with their grandmother. Their father has passed away. The other grandfather has passed away. I'm the only adult relative that they look to with some guidance. I, on my seven and one week roster, saw the grandchildren aged 17, 15 and 13 every rostered week off. They live with their grandmother. I used to take them for that week and give her a break. As you realise, bringing up three teenage boys, as a single grandmother is very hard.

PN256.

I also go and watch them when they play their sports, football, basketball and soccer. I'm very proud of the kids. They’ve had a hard time. They’ve had a hard life, but they're still going well. What the roster allowed me to do was spend time with these kids growing up. Their father passed away seven years ago so I’ve been the father figure for them. The grandfather on the other side passed away four years ago, four and a half years, just after the father. So I’ve taken them on as my responsibility, showing them the way I see life.

PN257.

I am one of the people who ask for planned time off for the year. I put in a plan that revolved around me seeing those kids on their birthdays, at Christmas, during their sporting events, any time I could see them. So I put in planned time off for the year. I emailed it to Travis. Travis was on holidays at the time and then he put me on to Russell Raddo, which is the allocator. I went in and saw Russell. I emailed it to him. I went in and spoke to him. He said, “No, we can’t give you that time off in that block for that year. We can’t give it to you. We have to give you it in a shorter block.”

PN258.

I asked him, “What’s a shorter block? What do you mean by a shorter block? Can I give it to you three weeks out? Can I give it to you two weeks out? When can I give it to you?” because I don’t want to be coming in every week putting in for planned time off. I was one of those people I did get planned time off, as David Saul mentioned. Yes, I did. I got five days off because there was not one ship in in those five days. That's the reason I got the planned time off. I asked for a weekend off and it was granted. Once again, no shipping on that weekend.

PN259.

I would like to know what the problem would be or how I would face my problem when there is shipping in and I ask for time off. How far in advance can I put in for planned time off? How long before I know if it’s been approved or not? Do I have to be tracking hours? How do we work around this planned time off? Also, significantly, I don't know if it means much at all, but I went through my diary before I came here this morning and looked at my rostered weeks off I would have had if they weren't suspended. Since the suspension of the rostered weeks off, I’ve worked two days in my rostered weeks which I would have had rostered off. I worked a nine-hour day and an eight-hour day, 17 hours.

PN260.

So it’s critical for me and for my family and all my colleagues behind me, they all have their own certain situations. It’s very critical for me to have time off so I can keep looking after my grandchildren. It’s my responsibility. I will not let that responsibility down. It’s up to me to guide these three boys and it’s not an easy world bringing up boys. I need to be there for them. That's all I’ve got to say, your Honour. Thank you.

PN261.

THE COMMISSIONER: Thank you very much.

PN262.

MR SMITH: That's all the witnesses, your Honour.

PN263.

THE COMMISSIONER: All right. Good, thank you very much. Mr Smith, did you want to supplement that at all?

PN264.

MR SMITH: I think it speaks volumes and speaks for itself and every single person has basically indicated that there is some great difficulty in being able to get the planned time off. I'm sure that if we delved into the personal circumstances of many others who aren’t here and many others who are here, we would here as many quite heart wrenching stories because it’s the way we plan our lives as wharfies. I’ve worked in bulk and general stevedoring myself, the same as these comrades, with a seven and one roster and everything in my life was planned around that seven and one roster.

PN265.

If that’s removed, it’s just absolutely fundamental to be able to have some certainty in your life because it just flows on to so many other people outside the workplace. We've done everything we can, your Honour, to be as flexible as we possibly can. There is no more flexible worker in the entire country and no more flexible enterprise agreements than at this company. I mean, we've made our contribution. We get it in terms of hours falling down. We know that and I think if we could just see: look, this is going to be a small period of time where the roster is suspended and we'll work through the planned time if you give us some commitments that we’re going to actually get a day off, but really the thing for us is to know that that roster is coming back so that all our lives can just get back on track; a key issue.

PN266.

THE COMMISSIONER: Thank you. Mr Reid or Mr Saul, do you want to say anything in response to any of that material that has just come forward from the ‑ ‑ ‑

PN267.

MR SAUL: I would like to make a statement, Commissioner, if I could, please.

PN268.

THE COMMISSIONER: Yes.

PN269.

MR SAUL: From a personal perspective and from a company perspective, I think there are many compelling stories and situations and, you know, we don’t ignore that. We don’t ignore the issues in front of our employees. In a general sense and not focused on any particular evidence that was provided, we do note that the sort of rostering, the notice periods, be it short notice and the like, the flexible shift times, are appreciated by the company and in turn is the reason why the majority of the FSEs earn over $100,000 per year for their role.

PN270.

We do know that annual leave, sick leave, carers’ leave, long service leave, in addition to planned time off are available to assist in balancing family commitments, but occasionally are not mentioned as being mechanisms for that. Again, introducing facts: a number of the requests for planned time off were when ships were alongside and were granted over the December-January period. It’s interesting that a range of statements, but particularly arguments, from the MUA there does not seem to be a mention of an obligation to meet the actual paid salary.

PN271.

MR SMITH: That's rubbish.

PN272.

MR SAUL: There’s no indication that a lot of the material passed through the ERC or, indeed, to the MUA as either briefing material or formal correspondence has been passed on to the broader employee base, particularly the provisions around time off which are clearly articulated in the EA and which have been discussed at recent ERCs. It’s unfortunate that the sort of uncertainty in planning has been allowed to fester for the sake of approaching managers directly and engaging one on one as to what the best options could be in creating that certainty.

PN273.

For the employees, and there are many capable employees, who have worked hard in the last financial year to meet their obligations in terms of changing their times of rostered time off, working when shipping is available and really significantly cutting their obligation in unearned hours down. They are exactly the employees who can be guaranteed planned time off as per the EA provisions into the future to meet those exact personal commitments that you've heard about.

PN274.

There’s no evidence of engagement by a range of senior employees on the monthly shipping forecast so that the likelihood of work is highlighted to the broader FSE base. There’s actually no recognition that the seven and one roster in Melbourne exacerbates the issue of work hours and time off because if the hours are tracking closely, as they do in other areas, then there is no problem gaining time off. Again, there’s no recognition that chasing the hours because you're behind actually leads to longer shifts and the short of work, shift timings, when ships are alongside as catch up becomes critical.

PN275.

Although not palatable, there are alternative employment categories available to allow more time plan off and there is an expectation that the economic cycle will improve in a number of the statements, but indeed there’s no evidence of that by any stretch of the imagination. We certainly recognise the commitment of the vast majority of FSEs and I'm convinced that many of the personal issues can be solved, not surprisingly, through engagement one-on-one and planning, as was demonstrated in the last three to four months of the last financial year and, indeed, the sort of applications for planned time off that has already been demonstrated by a third of the workforce so far. I think that direct engagement works far more successfully than broadcasting through third parties.

PN276.

I would say, Commissioner, that the process of the seven and one roster and its removal has never been about seeking more commitment because we suggest that our employees are committed. It’s never about imposing hardship. There’s no interest in that. It does not seem to make any sense in creating that. It is not about confrontation because we've been engaging for the last 18 months in documented communication to resolve this issue, but it’s certainly about putting the business in a sound financial state. It is about a mutual obligation. It’s about working for salaries already paid.

PN277.

I’ve got to say the most important issue for every person here in terms of Qube employees and Qube management is the sustainment of viable employment hands down. Commissioner, that’s all I would like to say on that matter.

PN278.

THE COMMISSIONER: Yes. It seems to me that arising from what’s been covered today, there should be a couple of things occur. In the short term this question of planned time off, I think, needs to be the subject of individual applications to the company which might not be entirely in accordance with the EA provisions and which might contemplate what we might call long term planned time off. I think the company should assess each one of those applications and respond to each of them.

PN279.

Some circumstances are more compelling than others, but I think that in some instances there might be some persuasive position for certain individual circumstances approving planned time off over a longer period. Now, that’s a matter for the company to consider, but I'm just suggesting that I think some circumstances are more compelling than others. So I’d like to see the individual applications come forward and I think that some of the constraints that are in the EA have already been bent a bit already. There’s been a degree of flexibility here and I think that we should try and find a bit more in the circumstances. In the event that the individuals that make those applications, and they're not approved or agreed, then I'm prepared to try and assist on a case-by-case basis. So that’s the first action that needs to be taken to address the more critical issue.

PN280.

In the more medium term, I think – and this is a question of whether the parties can agree on a criteria or a set of criteria that would involve what we'll call the reintroduction of a fixed time off roster. I use that terminology because it may or may not be a seven-one roster, but I think that the parties need to put a bit of effort into seeing whether or not they can agree upon criteria that might say, “Yes, all right. If these circumstances are met, X, Y, Z,” whatever, “then we would agree to reintroduce a fixed time off roster.” You may not reach agreement on that, in which case, all right, I'll try and help, but I think that that ought to start by way of the union putting forward a document which says, “Here’s what we say should represent the basis upon which a fixed time off roster would be re-established.” That should be the basis of the discussion that would then take place.

PN281.

Obviously, I think the company is saying, “We don’t see the circumstances now that permit that. Okay. You put together, if you like, your response to that,” and say, “If suddenly the shipping was so – if the demand for shipping suddenly increased dramatically, surely, there would be the potential for some rearrangement to occur,” but it’s a question here of trying to negotiate some terms and whether you can agree on the criteria or not. I think the starting point needs to be for someone to put a document together and say, “Okay. Here’s what we say ought to be the basis upon which then we activate or reactivate a fixed time off roster.”

PN282.

The longer term matter is the question of how you approach all of this in the enterprise bargaining negotiations and I don't think we need to go there, certainly not at this stage. We should stay away from that. Certainly, the Commission should probably stay away from that, I think. That's a bigger issue for the parties come October and ultimately March next year.

PN283.

Can I also say that if I just return briefly to the aspects of the individuals making applications for what we’ve called long term planned time off, obviously that wouldn't be needed if there was a reintroduction at some point in time of a fixed time off roster. So there needs to be some mechanisms here that these things need to dovetail into one another so you understand what’s happening. However, I think there also needs to be some consideration given that in any application and at some point in time we need to address this question of what if fixed time off is granted and we get to a point where a particular individual is just so short of hours it’s not going to be conceivable that they can make them up. This goes back to the very first conference I think we had.

PN284.

MR SMITH: Yes.

PN285.

THE COMMISSIONER: I think at some point we’re going to have to address that. I raised it with - I think it was Mr Watson, “What happened if you went back to the seven-one and then by June you were so short?” He seemed to me to be accepting that there was an obligation on him to do something, to address the shortfall in hours. It’s a question of how we put together some means by which that could be dealt with because I'm conscious that we've got a June 30 date and then we've got a March 2016 date and the evaporation of any rolling over and I'm very conscious of that.

PN286.

So there’s the position as I see it. I think unless there’s some other suggestion from anyone what we need to do is start work on the individual applications. I'm quite content to fix another date now for a further conference to deal with any anticipated grievance arising from rejection of individual applications and hopefully in the intervening period, the union might advance the question of the fixed time off roster criteria position as well, but there’s a bit of work to do. Mr Smith?

PN287.

MR SMITH: Your Honour, I get what you're saying. It’s appreciated in terms of the long term planned time off and a recommendation to move away from the, strictly speaking, formality of the enterprise agreement in this case. I think that’s fair because that reflects our flexibility in suspending the roster. Your Honour, there’s a number of things that happened in terms of the major point that you raise and that is the incapacity to reach hours. Firstly, there always is rollover, but the inevitable consequence of that for us is redundancies in some form or another or the supplementary GWEs and VSEs tend to fall closer to their guaranteed hours and what tends to happen is there tends to be - you know, they sort of wander off so the general size of the workforce tends to shrink.

PN288.

So there’s a range of things. We’re well experienced in this and we've had these systems in place for 15 years or more now and I’ve got to say we've never really run into any troubles with respect to that particular question you raise. I'm not sure how long it will take. I mean, how long is a bit of string in this sort of stuff? I mean, I'm assuming people are going to go and make applications in accordance with your recommendation fairly promptly and I think that that’s probably what the company would expect.

PN289.

THE COMMISSIONER: Later this afternoon even.

PN290.

MR SMITH: And you would expect as well.

PN291.

THE COMMISSIONER: Yes.

PN292.

MR SMITH: I mean maybe we could look at another month or something like that and see or we could – yes, I agree – or we have a file remain open, your Honour, where either party can make an approach to your good self to see whether or not any matters need dealing with.

PN293.

THE COMMISSIONER: You're the applicant. Really, you're the one that should suggest ‑ ‑ ‑

PN294.

MR SMITH: That would suit us.

PN295.

THE COMMISSIONER: Yes?

PN296.

MR SMITH: Yes.

PN297.

THE COMMISSIONER: I can adjourn it sine die, the legal terminology would be, but what we really mean to say to everyone is, “Well, I'll adjourn it without fixing a date for any further proceedings at this stage,” but anticipate that at some point you'll tell me when you want the matter brought back on.

PN298.

MR SMITH: Yes. There might be specific individual cases in the next week. It might take a month.

PN299.

THE COMMISSIONER: Yes.

PN300.

MR SMITH: We don't know. So there’s no point coming back if we haven't got anything to report.

PN301.

THE COMMISSIONER: I can’t get back to Melbourne within the next week, but I could try if it’s Sunday and the tennis final is on.

PN302.

MR SMITH: Yes, very good, your Honour. I'm not up to date with my sporting schedules in that respect.

PN303.

MR REID: Commissioner, one further matter.

PN304.

THE COMMISSIONER: Yes, Mr Reid?

PN305.

MR REID: Your question posed what if fixed time offer is granted and hours can’t be met.

PN306.

THE COMMISSIONER: Yes.

PN307.

MR REID: Could we submit to you that that be a direction as part of the union criteria that come forward to which to respond? Could it form part of that criteria?

PN308.

THE COMMISSIONER: I don’t mind who puts up the proposition in that regard. I just raised it as an issue that I could see looming at some point. The union says, “Look, we've been dealing with this for a long time. It’s never been a problem before,” and that might be true. But by the same token, I used Mr Watson as the example, there was a person who said, “Well, no, I understand the obligation but if I was granted effectively a return to the seven‑one, which is part of these other obligations and requirements, I understand the flip side of that is I’ve got an obligation to make sure I'm not dramatically short in my hours and that I do make them up.”

PN309.

MR SMITH: And, your Honour, we would put in place a criteria for the return of the roster that took that into account because it would be crazy from our perspective to put in place something that was unsustainable and was only going to lead to, from our experience, what the next step is and that’s people being tapped on the shoulder and made radiotherapy.

PN310.

THE COMMISSIONER: Or ultimately being asked to pay back ‑ ‑ ‑

PN311.

MR SMITH: We’re not going to cop that. I mean, you know, not going to cop that in a thousand years. There’s nothing inside the enterprise agreement that says anything like that.

PN312.

THE COMMISSIONER: I know that.

PN313.

MR SMITH: And I know Mr Saul has some fantasy positions around that and said it was yours, but we’re just not going there.

PN314.

THE COMMISSIONER: It was my fault. I raised that concept at the first conference. I'll take the blame for it.

PN315.

MR SMITH: Okay.

PN316.

THE COMMISSIONER: But, look, let’s not lose sight of where we are at the moment. There’s some urgent work to do from an individual basis. There’s some more detailed work to do on this longer term question. In response to what you raise, Mr Reid, you can raise it in response to the way that the union puts its proposition to you. I think the union really does need to put a proposition to you to say, “In these circumstances we think a fixed time off roster should be reintroduced.” They’ll be saying seven and one, obviously.

PN317.

MR SMITH: We might say three and one, your Honour, seeing you're throwing some choice into it.

PN318.

THE COMMISSIONER: You've got to be flexible, Mr Smith.

PN319.

MR SMITH: Of course. I was being very flexible.

PN320.

THE COMMISSIONER: It doesn't matter, either side is entitled to put a position in respect of any of those issues and canvass it with the other side.

PN321.

MR REID: If it please the Commission.

PN322.

THE COMMISSIONER: All right. Is there anything further at all? I'll expect to receive some communication from the union if there’s an urgent relisting required. On that basis the proceedings now stand adjourned.

ADJOURNED TO A DATE TO BE FIXED [1.02 PM]

Fair Work Commission Transcripts

C2014/7049, Transcript of Proceedings [2015] FWCTrans 92 (2 March 2015)