B2016/1278, Transcript of Proceedings [2017] FWCTrans 104 (28 March 2017)

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PN1

THE DEPUTY PRESIDENT: Okay, I'll take appearances first.

PN2

MR M KENT: If it pleases the Commissioner, the Deputy President, my name is Kent, initials M G. I'm a solicitor. I appear on behalf of the respondent.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MR DZIECIOL: Deputy President, I appear on behalf of the TWU in this matter. Surname Dzieciol.

PN5

MR G FERGUSON: Mr Ferguson, initial G W, representing the single bargaining unit in this matter.

PN6

THE DEPUTY PRESIDENT: Thank you. Okay, just some housekeeping first. As I foreshadowed to the parties, it was foreshadowed in the listing notice, this matter was listed for a conference initially and then for hearing if conciliation was unsuccessful. We've progressed with conciliation through the day in an endeavour to try and reach a conciliated outcome and there appears to be some support moving forward for an interest-based bargaining approach to resolving this dispute.

PN7

However Mr Ferguson has indicated that he wishes to pursue his application for bargaining orders and he wants an order for the proposed ballot not to proceed on Thursday and Friday. Given the timeframe in which that is proposed to occur I need to hear and determine that matter now. I have a prior engagement this evening which will require me to adjourn the proceedings at 4.25 if they're not concluded at that point and then I will reconvene the proceedings at 6.30 pm tonight if that's necessary to continue, and we will continue through the evening until the matter is resolved or the evidence is on transcript, submissions are completed, so that I'm in a position to write a decision in time for the ballot is due to occur.

PN8

The parties were issued with directions in relation to filing materials and we have got materials filed which include parties' submissions and their witness evidence‑in‑chief. So the proceedings should enable - should be shortened by the fact that the evidence‑in‑chief has already been given, and the parties should require limited examination‑in‑chief and it's just a question of what cross‑examination opposing counsel require in order to finalise their position in particular in relation to that witness.

PN9

Mr Ferguson, I have your opening submissions. Would you like to call your first witness?

PN10

MR FERGUSON: I'm not going to call my first witness. There's matters I need to place on the record. I refer to the Deputy President's directions. The Deputy President's directions firstly put the applicant at a disadvantage inasmuch as the applicant was allowed five hours from the time of receival of Deputy President's directions to comply with those directions, and we did our best to comply with those but those submissions will be supplemented from the table. Deputy President further gave directions that all documents related to this matter needed to be filed by 9 am this morning. We received our first document at 8.40 am. One attachment has over 300 pages.

PN11

We were unable to download all of the documents related to the respondent's response to the application. We have received no matters or submissions from the Transport Workers Union that were filed before 9 am. Your Chambers received an email from my office this morning advising Deputy President that the orders had not been complied with, and I remind Deputy President the Deputy President placed a strong warning on the parties that did not comply with Madam's directions. We are not placed and we are at a disadvantage if this hearing goes any further today. We need this matter to be adjourned today so that myself and Mr Quinn and others can work through the material this evening so that we are in a position to represent our constituents in a fair and reasonable manner, knowing what the arguments are being placed against our application before we proceed.

PN12

I would also make comment that today's proceedings was a conference listed for one hour. Commissioner - Deputy President went well past the hour and did not reconvene till some 2 o'clock, and then kept parties dangling till 3 o'clock and then attempted to come and place, not through any sort of conciliation between Deputy President and putting suggestions towards the single bargaining unit on how a compromise could be received, but came with the orders "You'll do it my way or there will be no way and if you don't like that, Mr Ferguson, you can vacate and leave these premises". In all the years that I - - -

PN13

THE DEPUTY PRESIDENT: Mr Ferguson I just want to put - - -

PN14

MR FERGUSON: - - - have appeared at - - -

PN15

THE DEPUTY PRESIDENT: - - - on record - excuse me, Mr Ferguson, I just want to put on the record that I didn't say that at all. What I said to you was if you wanted to proceed with the matter you could do so.

PN16

MR FERGUSON: And I am saying to you - - -

PN17

THE DEPUTY PRESIDENT: Never asked you to vacate the premises.

PN18

MR FERGUSON: I am saying to you very clearly, Deputy President, that you are putting in a process that is putting us at a disadvantage and is not procedurally fair. We seek an adjournment today so we can consider the paperwork that has not been lodged in accordance with your directions so that we can properly prepare to place our case in full knowledge of what those submissions amount to before we proceed. If Deputy President's not inclined to do that then Deputy President is placed on notice that Deputy President will have a complaint laid with the Presidential Member in charge of this Chamber as a result.

PN19

We also put on the record the Deputy President's arrogance towards the application in not addressing the applicant but looking and talking to every other person around that table was disrespectful. It did not want to confront the issues but tried to circumnavigate the applicant in the matter to get an agreement that Deputy President might have wanted to achieve. But that is not your role. Your role was to conciliate between the parties and to bring about a mutual understanding where agreed orders could come about. You would not even entertain a suggestion or any suggestions from us that you would take back to the other party for consideration. You let down the conciliation process. You took it one step but weren't prepared to go for the second or third step.

PN20

THE DEPUTY PRESIDENT: Mr Ferguson, I've been in conciliation since 10 am this morning. I think that's a fair amount of commitment to conciliation.

PN21

MR FERGUSON: Madam, from the moment I tried to present matters to you this morning you ignored me, demanded I answered questions with no opportunity - - -

PN22

THE DEPUTY PRESIDENT: Mr Ferguson - - -

PN23

MR FERGUSON: - - - to present the case. Now you're trying to push me into a hearing which is contrary to your directions, where the respondents in this matter did not comply with your directions and you asked me to proceed with no knowledge of what the TWU submission is, what papers they've filed in support, and we have book loads of documents that we have not been able to download because the orders weren't complied with. Now can Deputy President explain how Deputy President thinks that is going to be a fair process for us to put our case forward.

PN24

THE DEPUTY PRESIDENT: Mr Ferguson, you've asked for this urgent hearing so that the matter can be determined before the ballot occurs.

PN25

MR FERGUSON: Could you speak up, Deputy President? I'm having a lot of trouble hearing you.

PN26

THE DEPUTY PRESIDENT: That's because you keep yelling when I'm speaking, Mr Ferguson. This hearing has been brought on urgently at your request. The Commission presumes when a party makes an urgent request that they are ready to proceed for hearing. The directions were issued on 1 March. I can't be responsible for when you read your emails, I'm afraid. If you read your emails and monitor your emails you would have received them in time to act upon and file your submissions in time.

PN27

You didn't file your submissions in time however I accommodated that by allowing the respondents to file theirs with the same amount of delay as you filed yours. They filed their submissions in the way - in the form of service which occurs, and the same way that you delivered service, and they can't be responsible for whether you read your emails or not. If there's any particular documents that you would like copies of, my Associate will arrange for those copies to be put before you.

PN28

In order to achieve your request that the matter be determined before the ballot occurs I need to proceed to hear the matter today because I have back to back hearings all day tomorrow. So if you would like to pursue your application you're welcome to do it now and we will hear, and we will continue to hear, this matter through the evening until all of your evidence and submissions are on transcript. But I would like to correct the transcript about the assertions that you've made about my conduct which I think are untruthful.

PN29

I would also like to put on transcript for the record that when I left the conference room you came and blocked my exit to the conference room and stood over me and started screaming at me, and that conduct is not acceptable in this Commission and it's not respectful to the organisation. However I will put that aside and will continue to hear this matter despite your conduct today. What I have done today is trying to give everyone an opportunity to speak and on occasions when people have interrupted you speaking, I have asked them to stop speaking until you have had the opportunity to complete what you were going to say, and when you have interrupted other people I have afforded them the same courtesy which I've afforded to you.

PN30

What I'd suggest is you put aside your personal differences and start putting on transcript the evidence and submissions that you want to make to represent the people that you're representing, and pay less attention to your personal differences. Thank you.

PN31

MR FERGUSON: Now in regards to comments you just placed on transcript I did not at any stage block Deputy President's way. Deputy President was - - -

PN32

THE DEPUTY PRESIDENT: Okay Mr Ferguson - - -

PN33

MR FERGUSON: - - - stationary and was involved in a conversation with myself. That statement that I blocked your passage quite frankly, Madam, is outrageous. Absolutely outrageous. Now for you to raise it then say "Well, I'm prepared to let it go", I invite you to take the matter up because at no stage did I block your entrance. I spoke to you very firmly and I made a point but at no stage - - -

PN34

THE DEPUTY PRESIDENT: In a raised voice, Mr Ferguson.

PN35

MR FERGUSON: - - - did I block your entrance and I ask, Deputy President, to have that comment removed from the transcript.

PN36

THE DEPUTY PRESIDENT: Mr Ferguson, I'll determine whether I report it to a different authority. You can progress with your submissions now, thank you.

PN37

MR FERGUSON: I shall proceed. Deputy President, you have two applications to deal with today. The first application was made following it becoming very apparent that the employer was not recognising the single bargaining unit, its claims and only was prepared to give token opportunity to commence the single bargaining unit being allowed to explain its claim, and at that stage the respondent had not responded to the single bargaining unit's claim at the time of the first application, remembering that the employer had been served with those documents on 1 February and responded on 15 February, and the next meeting was scheduled for the 20th.

PN38

The employer was shutting down debate on issues and would not allow free discussion to follow, always moving to the next item. Was controlling every representative's contribution to the point it could not - - -

PN39

MR KENT: I object Madam Deputy President. I mean, Mr Ferguson is endeavouring to give evidence as opposed to - - -

PN40

THE DEPUTY PRESIDENT: Mr Ferguson - - -

PN41

MR KENT: - - - calling witnesses to give evidence.

PN42

THE DEPUTY PRESIDENT: Mr Ferguson, at the Bar table you give submissions not evidence. If you'd like to give evidence you should put yourself into the evidence box.

PN43

MR FERGUSON: Excuse me Madam?

PN44

THE DEPUTY PRESIDENT: If you wish to give evidence you will need to be sworn in and give evidence in the witness box. At the moment you're giving submissions. If you wish to give evidence you will need to do it - - -

PN45

MR FERGUSON: I'm giving an outline of the evidence Madam will hear later today.

PN46

THE DEPUTY PRESIDENT: I'm not - we have the opening submissions. I'm only interested in the evidence which you wish to put on transcript so that we can all get away this evening. If there's any additional submissions you want to make about the law you should do that, but you're not - it's not appropriate to give evidence from the Bar table because it has absolutely no weight. Would you like to give evidence from the witness box Mr Ferguson?

PN47

MR FERGUSON: All right, we raise a number of matters. One which we see is the most important has engaged in capricious conduct and unfair conduct that has undermined the freedom of association of collective bargaining and that is in application B2017/150. I will hand up a statement of evidence to be tendered of Mr John Fawkes.

PN48

THE DEPUTY PRESIDENT: Can you get Mr Fawkes in the witness box?

PN49

MR FERGUSON: We'd ask that Mr Fawkes be called to the stand.

PN50

THE ASSOCIATE: Please state your full name and address?

PN51

MR FAWKES: John Fawkes (address supplied).

<JOHN FAWKES, AFFIRMED [4.06 PM]

EXAMINATION-IN-CHIEF BY MR FERGUSON [4.06 PM]

*** JOHN FAWKES XN MR FERGUSON

PN52

MR FERGUSON: Mr Fawkes, you have a two page document in front of you entitled "Outline of evidence". It contains paragraphs 1 to 16. Would you just like to take a moment to acquaint yourself with that statement, Mr Fawkes, before I ask you to advise if it's a true and correct statement.

PN53

Deputy President we'd like to tender the outline into evidence. Do you have a number for it?

PN54

THE DEPUTY PRESIDENT: Mr Fawkes, have you finished reading it?‑‑‑No. I'm just getting there, yes.

PN55

And you're happy it's true and accurate?‑‑‑I'm just - I'm sorry - - -

PN56

Okay, you finish it then?‑‑‑Yes, it's all done. Yes.

PN57

Okay, and they're your words?‑‑‑Yes. Yes, I agree with that.

PN58

The unsigned and undated statement of Mr Fawkes I'll mark A1.

EXHIBIT #A1 UNSIGNED AND UNDATED STATEMENT OF JOHN FAWKES

PN59

MR FERGUSON: Mr Fawkes, having read the statement is that a true and correct statement from your understanding?‑‑‑Yes. Yes.

PN60

And I'll just take you through your statement which basically says on Friday 6 January 2017 you were sitting in a shelter situated in Swan Transit Services South - - -

PN61

MR KENT: Deputy President, we're prepared to accept what the statement says. It has been handed up into evidence. I don't think it needs to be - - -

PN62

THE DEPUTY PRESIDENT: Yes.

PN63

MR FERGUSON: I was just going to clarify if Mr Fawkes was on duty or not on duty at that time?‑‑‑I was not on - I had finished my shift.

PN64

You'd finished your duty?‑‑‑Yes.

*** JOHN FAWKES XN MR FERGUSON

PN65

I have no further questions on the evidence and it's been tendered.

PN66

THE DEPUTY PRESIDENT: Thank you Mr Ferguson.

PN67

Mr Dzieciol do you wish to cross‑examine the witness? Mr Dzieciol, do you wish to cross‑examine the witness, no?

PN68

MR DZIECIOL: No questions, Deputy President.

PN69

THE DEPUTY PRESIDENT: Mr Kent?

CROSS-EXAMINATION BY MR KENT [4.11 PM]

PN70

MR KENT: Just a couple of questions, Deputy President.

PN71

Mr Fawkes, you state that you'd finished your shift?‑‑‑Yes.

PN72

Had anyone given you permission from management to remain on the premises?‑‑‑No.

PN73

Had you sought permission from anyone to remain on the premises, from management?‑‑‑ No, not on that particular day or any day prior or since.

PN74

Sorry, I didn't understand that. Could you - - -?‑‑‑No, not on that particular day or any day prior or since. It's not a common thing for that to happen on the - in the depot.

PN75

Your entitlement to be on the premises is a direct result of your working though isn't it?‑‑‑Yes, but if you're on a split shift you can also spend four or five hours on the premises during your shift.

PN76

But you're required to be back - were you on a split shift?‑‑‑No I was finished my shift.

PN77

You were finished your shift?‑‑‑Yes.

*** JOHN FAWKES XXN MR KENT

PN78

So you had no other reason to be on the premises, you had no permission to be on the premises?‑‑‑The purpose of being there was to discuss the negotiations with the employees.

PN79

That wasn't my question, Mr Fawkes. My question was just confirmation that you had no consent or permission to be on the premises at that time?‑‑‑No I did not seek any permission. There was nothing uncommon about being on the premises.

PN80

Had you received a number of emails from the general manager, Brian Thompson, requesting that you not attend premises and hand out material without first obtaining consent of management?‑‑‑I had received some emails.

PN81

How many emails had you received?‑‑‑One on that day and there may have - I don't know. Do you have emails to show me, or?

PN82

I'm just asking you from your recollection?‑‑‑Well, one definitely on that day. Yes.

PN83

If I suggest to you that Mr Thompson had sent you an email in December requesting you to seek permission to distribute material on premises would you agree with that?‑‑‑Well, can I see the email please?

PN84

Certainly?‑‑‑So I can jog my memory.

PN85

Certainly?‑‑‑It might be quicker if I go and check the emails on my phone.

PN86

THE DEPUTY PRESIDENT: Sorry?‑‑‑Can I check the emails on my phone and see if they correspond, or?

PN87

You shouldn't really have your phone in the witness box?‑‑‑Right, okay.

PN88

Just what will happen is Mr Kent will endeavour to find the emails and put them to you, and if you can't then you just have to give your evidence about what your recollection is?‑‑‑Okay, yes.

PN89

And you're under oath so you just have to do it to the best of your recollection?‑‑‑Okay.

*** JOHN FAWKES XXN MR KENT

PN90

MR KENT: You know the situation, Deputy President, when you're trying to find something in a hurry you can never put your hands on it.

PN91

I put it to you that on 16 December that Mr Thompson sent you an email asking that you seek consent before posting notices in the depot?‑‑‑Yes, I received that email, yes. May I add to my answer?

PN92

No, I'll ask questions and if you just answer them that would be fine. I put it to you that on 6 January 2017 he sent you another email indicating that he needed to seek permission to enter a depot and distribute material?‑‑‑Can I actually see that email please because you've just stated something within that email and I'd just like to check and make sure that what you said is what the email's actually stated.

PN93

I believe it's document number 75 in the indexed and paginated booklet, and I believe that is at page 672 to 674, Commissioner.

PN94

THE DEPUTY PRESIDENT: Yes, so the 6 January one?

PN95

MR KENT: Yes, it is.

PN96

THE DEPUTY PRESIDENT: Yes. Mr Ferguson.

PN97

MR FERGUSON: Deputy President, we bring to your attention that the documents that Mr Fawkes has been handed is a document that we don't have in our possession either. For the reasons that we raised with you earlier.

PN98

THE DEPUTY PRESIDENT: They were the ones that were emailed to you. Is that correct, Mr Kent?

PN99

MR KENT: They were emailed to all parties this morning.

PN100

THE DEPUTY PRESIDENT: That's how I've got a copy. My Associate will take a copy for you, Mr Ferguson. Do you have your emails with you?

PN101

MR FERGUSON: Excuse me?

PN102

THE DEPUTY PRESIDENT: Have you got your emails with you? Do you have access to your emails?

*** JOHN FAWKES XXN MR KENT

PN103

MR FERGUSON: We haven't got access here to email.

PN104

THE DEPUTY PRESIDENT: Right. Can you give that to Mr Ferguson then he's got all the material.

PN105

MR KENT: Deputy President, they're all the original documents. What we've scanned and sent through to you are copies of these documents.

PN106

THE DEPUTY PRESIDENT: They're the originals are they?

PN107

MR KENT: They're the originals.

PN108

THE DEPUTY PRESIDENT: How about I give Mr Ferguson my copies and I'll have the originals.

PN109

MR KENT: Yes, thank you, Deputy President.

PN110

THE DEPUTY PRESIDENT: Mr Ferguson, perhaps in the adjournment you can go back to your office and collect the materials and then when we reconvene you'll have them accessible.

PN111

MR KENT: Have you had the opportunity of reading that email now?‑‑‑Yes.

PN112

In answer to my question, can you confirm that you received that email on 6 January?‑‑‑Yes.

PN113

Could I have that document back please?‑‑‑No, but you had another question that you posed.

PN114

Could I have the document back please?‑‑‑Do you want me to answer the previous question you posed? Do you want me to answer the previous question that you posed?

PN115

I'm not sure I can recall the previous question I asked, it's been so long. If it comes to me again I'll ask it again?‑‑‑Okay.

*** JOHN FAWKES XXN MR KENT

PN116

Mr Fawkes, I put it to you that on 6 January when you were in the evacuation pergola at about 1450 in accordance with your statement, that you were approached by Glenn Ferguson the operations manager for the Beckenham Depot?

PN117

MR FERGUSON: Not Glenn - Glenn Ferguson's here.

PN118

MR KENT: Sorry, Glenn Murray, the operations manager for the depot?‑‑‑Yes.

PN119

I put it to you that Mr Murray asked you to refrain from handing out material and to leave the premises?‑‑‑That's what my statement says, I think.

PN120

I put it to you further that you were subsequently approached by both Jim Barlow the general manager support services for the respondent and Glenn Murray again shortly after this?‑‑‑That's what my statement says, yes.

PN121

I put it to you that Mr Barlow again requested that you leave the premises - I put it to you that Mr Barlow said - asked you to stop distributing material without management approval and leave the depot?‑‑‑Not immediately. I actually went back in - again, I can only refer to my statement and they both - Mr Barlow did receive a phone call which he indicated was from Mr Thompson, and as my statement says unless I stopped distributing the association materials I would be issued with a show cause notice. They then - Mr Murray and Mr Barlow went back to the office and then they came out a short time later and repeated their request.

PN122

I put it to you, Mr Fawkes, that they simply asked you to stop distributing material without management approval and leave the depot. What do you say to that; yes or no?‑‑‑As my statement says the phone rang and Mr Barlow indicated it was Mr Thompson and he advised me, as my statement says, that if I did not stop distributing the association materials - - -

PN123

Deputy President.

PN124

THE DEPUTY PRESIDENT: Mr Fawkes, it's not a question of what your statement says. It's what your evidence is, so you just need to answer the question that's put to you. It's not a question of - he's not asking you what your statement says, he's asking you what happened. So you need to answer the question about what happened, not what your statement says?‑‑‑Well - - -

*** JOHN FAWKES XXN MR KENT

PN125

MR KENT: Mr Fawkes, I'm obliged to put the evidence of the respondent to you and have you respond to that evidence. So I'm not asking in relation to your statement, I'm simply asking you to answer the questions that I ask you, which are based on the evidence that the respondent shall lead. Now I understand that's different, I'm not trying to trap you, I'm not trying to catch you out. I'm simply following the evidential rules that require me to put my company's case or their submissions to you and for you to give your responses. Do you understand that?‑‑‑Yes, but without actually seeing what the response - - -

PN126

Well in most situations this is done by me asking you a question and by you responding whether you agree with it or not, and it's not a difficult sort of situation and I'm not trying to catch you out. As I said, all I'm doing is putting the evidence that the company intends to lead in the matter. It may be different to your statement and you can indicate by a yes or no whether you agree with it, but it's important that you answer the questions that I ask and not go off on a tangent referring to your statement. Do you understand?‑‑‑I just that you be clear with your question please.

PN127

Sure. I put it to you that you were approached by Mr Barlow at the evacuation pergola when he asked you to stop distributing material without management approval and to leave the depot?‑‑‑On the second occasion that Mr Barlow approached me, he did say and if I - he did say that if I did not stop I would be given a show cause notice and then they gave me - and I asked for it in writing and then they said leave the depot in five minutes. That is exactly what happened.

PN128

Mr Fawkes, I'll ask the question again and I'll ask you to answer the question that I ask please.

PN129

MR FERGUSON: Objection. He's now starting to badger the witness. Mr Hawkes provided the answer to the question quite clearly, and that was he was told he would be disciplined and after that concluded, he was asked to leave and he was left - in five minutes, so he did leave upon the request. That's the point.

PN130

MR KENT: Well, he hasn't answered.

*** JOHN FAWKES XXN MR KENT

PN131

THE DEPUTY PRESIDENT: When you give your evidence what will happen in these cases quite often is it will be he said, she said, so it will be a different version of events, and what I'll have to do is weigh up the credibility of the witnesses. If you're evasive in your answers that tends towards your credibility so it's better to be direct in your answers because then I attach weight to your evidence as being a credible and truthful witness. Mr Kent has an obligation at law and it's a complex one but his obligation at law is to put his case to you to allow you to answer it, because his witnesses are going to give their evidence after you. So he has to put what their evidence is going to be now so you've got a chance to put a different perspective of your view. It's Important if he puts something to you, you say that's correct or that isn't correct because then we have on transcript that you're contesting the evidence. If you answer with a convoluted answer I can't tell that you're contesting it or not and it may go to your credit as a witness. Do you understand the distinction?‑‑‑I do, ma'am. The problem is that there was a stage process. Mr Barlow spoke to me twice. So at what stage is Mr Kent asking the question?

PN132

No, you don't ask the question, you say that to Mr Kent. I had two conversations with Mr Barlow, do you mean the first conversation or the second conversation?‑‑‑Thank you. Thanks, that's a great help.

PN133

MR KENT: I'll repeat the question for a third time, Mr Fawkes. When you were in the evacuation pergola at the depot Mr Barlow approached you and asked you to stop distributing material about management approval and to leave the depot. Is that correct or not?‑‑‑Now on which occasion are you referring to?

PN134

I've clearly indicated which occasion. When he approached you for the first time in the evacuation pergola at the depot and I've said evacuation pergola three times in each of the questions, each time I've asked the question?‑‑‑Now you have just said you refer to the first time and the first time is no, he did not. There was two occasions.

PN135

THE DEPUTY PRESIDENT: Right.

PN136

MR KENT: Did you then say to Mr Barlow:

PN137

I want that direction in writing to be more specific.

PN138

?‑‑‑Yes, I did.

PN139

You were asked by Mr Barlow whether you had received an email from Brian Thompson requesting that you seek permission from management before distributing any material inside the respondent's depot, and on Public Transport Authority property and vehicles. Is that correct?‑‑‑Yes, he did mention an email, yes. He said, "Did you receive Brian's email?" I said, "Yes, I did".

PN140

You acknowledged that you did?‑‑‑Yes.

*** JOHN FAWKES XXN MR KENT

PN141

Mr Barlow again asked you to stop what you were doing, is that correct; yes or no?‑‑‑Yes.

PN142

I put it to you that you then continued to sit in the evacuation pergola and continued to hand out material despite being requested to stop by Mr Barlow. What do you say to that?‑‑‑Are you still referring to the first time Mr Barlow spoke? After Mr Barlow left I stayed in the - I did stay in the - under the shelter shed and I did continue to speak to drivers.

PN143

The second time Mr Barlow approached you in the evacuation pergola, I'm talking about the second time, this time?‑‑‑Along with Mr Murray?

PN144

Mr Barlow again asked you to stop handing out material without first getting management consent to do so. Is that correct?‑‑‑He did ask, yes.

PN145

I put it to you that he further advised you that if you did not do so that you would be the subject of disciplinary action?‑‑‑That was the second time he's told me to do that. Also - - -

PN146

So that's correct is it?‑‑‑The second time, the second time.

PN147

That's what he said. He also instructed you - Mr Barlow also instructed you to leave the depot as you had finished your shift an hour earlier and he asked you to leave within five minutes, as you did not have a legitimate reason or permission to be on the premises. What do you say to that?‑‑‑Mr Barlow and Mr Murray - in Mr Murray's company said, "You will leave the depot within five minutes". Which I did.

PN148

THE DEPUTY PRESIDENT: Mr Kent, I'm sorry to interrupt you in the middle of your cross-examine - - -

PN149

MR KENT: I understand your Honour the time constraint.

PN150

THE DEPUTY PRESIDENT: Yes.

PN151

MR KENT: That would be the cross-examination of this witness, Deputy President.

PN152

THE DEPUTY PRESIDENT: You've finished?

*** JOHN FAWKES XXN MR KENT

PN153

MR KENT: Yes.

PN154

THE DEPUTY PRESIDENT: Excellent, thank you. Mr Fawkes, you're discharged from the witness box, you can go back into - - -

PN155

MR FERGUSON: I've got some re-examine - - -

PN156

THE DEPUTY PRESIDENT: I'm just going to adjourn now. As I said at the outset, I was going to adjourn at 4.25. It's now 4.35. I'm going to adjourn the matter. I will reconvene at 6.30. In the interim, Mr Ferguson, I suggest that you get copies of the materials so that you're prepared for the matter to proceed at 6.30.

PN157

MR FERGUSON: How does madam think that I am going to access those materials. I've got to travel over the other side of Perth, I've got to open up an office.

PN158

THE DEPUTY PRESIDENT: Would you like to recommence later this evening? Would you like to commence at 7?

PN159

MR KENT: If it helps, Deputy Commissioner, we have a copy of the material that we can provide to Mr Ferguson. At least of Mr - I think of all the matters. If I could have that folder back because I think there are additional copies of other documents. We're quite happy to provide everything to Mr Ferguson to make life easier for him.

PN160

THE DEPUTY PRESIDENT: Thank you very much.

PN161

MR KENT: Thank you, Commissioner.

PN162

MR FERGUSON: We need the TWU materials as well.

PN163

MR KENT: Deputy Commissioner, if you could direct in relation to discussions with the witness who is still under oath.

PN164

THE DEPUTY PRESIDENT: Mr Fawkes, you're still under oath so you mustn't have any conversations with anybody between now and when we recommence at 6.30, okay? You understand?‑‑‑Right.

*** JOHN FAWKES XXN MR KENT

PN165

So no discussions with anybody, any of the parties other than - even your wife. Not to talk about the proceedings, okay?‑‑‑I can still leave and have a meal with them but as long as I don't speak anything - - -

PN166

That would not be considered appropriate, no?‑‑‑I can't do that either.

PN167

You should unfortunately have this one meal on your own because the risk of the perception is that your evidence is being tampered with. So I would ask that you have no contact with anybody who's giving - any of the parties until we reconvene. Mr Dzieciol.

PN168

MR DZIECIOL: I just wanted to correct one matter that has been raised by Mr Ferguson several times. I did email to the Commission and to the parties at the email address provided in the notice of listing a copy of the TWU's submissions. It appears that all the other parties have received that. If Mr Ferguson has not received that or he didn't check his email or whatever, I cannot account for that but I did email that - and the Commission can check that on its records.

PN169

THE DEPUTY PRESIDENT: Yes, Mr Dzieciol, we've received everybody's materials.

PN170

MR KENT: If the Commissioner could also note - Deputy President could also note that I've now provided Mr Ferguson with a full copy of all the respondent's material.

PN171

THE DEPUTY PRESIDENT: Great, thank you, Mr Kent. I'm going to adjourn now.

SHORT ADJOURNMENT [4.33 PM]

RESUMED [6.34 PM]

PN172

THE DEPUTY PRESIDENT: When we adjourned, Mr Kent, you had just finished your cross-examination, is that correct?

PN173

MR KENT: I had indicated that, Commissioner. I didn't put some issues from Mr Murray's evidence, so with the indulgence of the Deputy President I would request agreement or consent from the Bench to just ask a couple more questions before Mr Ferguson re-examines.

*** JOHN FAWKES XXN MR KENT

PN174

THE DEPUTY PRESIDENT: Thank you, Mr Ferguson, are you able to hear us clearly now?

PN175

MR FERGUSON: Yes, thank you.

PN176

THE DEPUTY PRESIDENT: We now have a security personnel present because of the conduct earlier in the proceedings, so I would ask that everyone observes the proper protocols and shows the respect the institution is entitled to under the Act and move forward. I'm hopeful that we can move through the evidence in a quick way so that all of you gentlemen and lady present, you can get home to your families in a reasonable time tonight. We have got most of the evidence in-chief filed and the submissions filed so hopefully the cross-examination isn't too arduous. Mr Kent.

PN177

MR KENT: Mr Fawkes, just take you back. In relation to 6 January and in relation to you being in the evacuation pergola, were you approached by both Glenn Murray and Jim Barlow?‑‑‑Yes, twice. Together, once by Mr Murray himself.

PN178

On 9 January when you arrived at the depot, did Mr Murray ask to see you before you started your shift?‑‑‑I actually approached Mr Murray first and he then asked to have a meeting with me, and he advised me to wait 10 minutes while he consulted with Mr Barlow.

PN179

I put it to you that when you were talking to Mr Murray he advised you that he wanted you to attend a meeting at 2 pm on 10 January, to discuss your actions in the evacuation pergola on 6 January 2017. Is that correct?‑‑‑On the, what date, 10th?

PN180

On the 9th when you approached him and you were having a discussion, I put to you that he asked you to attend a meeting with him at 2 o'clock on 10 January, the next day, to discuss your actions in the evacuation pergola on 6 January 2017?‑‑‑Yes, that is correct, yes, as I understand it.

PN181

Thank you. I put it to you that you then indicated to him you wanted it in writing, is that correct?‑‑‑(No audible reply)

PN182

The request to attend the meeting, you requested him to put it in writing to you?‑‑‑I don't - I may have, I may have not, specifically I don't recall.

*** JOHN FAWKES XXN MR KENT

PN183

So you're not sure?‑‑‑(No audible reply)

PN184

You don't recall?‑‑‑Well, no, without anything to actually refer back to. There's a lot went on at the time.

PN185

I appreciate how recollection of events from some time ago may not be as fresh, so we forget things. If you're not sure that's fine, just say I'm not sure, as you just did. I put it to you that Mr Murray said to you he didn't believe he needed or it was necessary to put the request to attend the meeting in writing. What do you say to that?‑‑‑Again, I don't have any direct recollection of such detail in our conversation. I do believe the detail was more in actual talking about what happened - what occurred on the previous Friday.

PN186

I put it to you that you then requested that a witness be present to hear Mr Murray's request for you to attend the meeting on the 10th?‑‑‑Yes, and as I - I was - - -

PN187

Is that correct or not?‑‑‑I am trying to - if you don't mind, I'm just trying to - I understand - I recall that yes, I was outside the office and I did request the (indistinct) a witness.

PN188

In accordance with your request, David Schofield was asked to join you?‑‑‑Not asked to join, just asked as a witness that a request - - -

PN189

And was present whilst Glenn Murray repeated his request to you to attend the meeting the next day?‑‑‑The exact wordings I cannot directly recall on that one.

PN190

I'm suggesting to you that Mr Schofield was present - - -?‑‑‑He was.

PN191

- - - when Mr Murray repeated words similar to:

PN192

I'd like you to attend a meeting at 2 o'clock on 10 January, regarding the conduct on 6 January.

PN193

?‑‑‑Generally speaking, yes. The exact detail I am not sure.

PN194

So words similar to that?‑‑‑It may have been.

*** JOHN FAWKES XXN MR KENT

PN195

Yes, thank you. I put it to you that Mr Murray then asked you whether you agreed to attend the meeting and you said you would?‑‑‑Again, my recollection, it was a fairly heated debate and I am not 100 per cent sure again the detail of what happened around that time. It was a fairly heated discussion.

PN196

I put it to you that about 7.24 on that same day, 9 January, you sent an email to Mr Fawkes[sic], advising him that you would be unable to attend the meeting he'd arranged for the next day, as the matter and circumstances had now been referred to the Federal Court for hearing and determination, and your legal representative had requested you to make no further comment?‑‑‑I did send him an email as you just read out. Very - yes, I haven't sighted it but as - - -

PN197

When you arrived at the depot on 10 January, I put it to you that Mr Murray had another conversation with you?‑‑‑Yes, I actually went into Mr Murray's office first.

PN198

You weren't rostered to work on that day, is that correct?‑‑‑I believe I actually was rostered. I was not advised that I had not been rostered.

PN199

I put it to you that you weren't rostered on that day?‑‑‑I was not advised prior to turning up that I was not rostered. I actually turned up at the depot to work.

PN200

I put it to you that Mr Murray then asked you if you voluntarily wanted to attend the meeting that had previously been arranged?‑‑‑I did attend a meeting.

PN201

On 10 January?‑‑‑Yes, I did attend it.

PN202

You did attend the meeting?‑‑‑I did attend it.

PN203

The disciplinary meeting that Mr Murray had arranged the day before, that you subsequently sent the email to say you weren't going to attend, you now say you attended it the next day on the 10th?‑‑‑It was never - it was never described as a disciplinary hearing. It was only ever described as a meeting to discuss what happened on the previous Friday. It was never divulged as a disciplinary meeting.

PN204

That may have been my error describing it as a disciplinary meeting, just a meeting?‑‑‑There was a meeting.

PN205

Are you now saying that despite your email the night before saying you are not going to attend because the matter is now the subject of Federal Court proceedings, you did in fact attend the meeting?‑‑‑This is on the 10th?

*** JOHN FAWKES XXN MR KENT

PN206

On the 10th?‑‑‑Yes, I did attend that meeting.

PN207

You did attend the meeting?‑‑‑Yes, but I did - yes, I did and that is where I received the first knowledge of a disciplinary proceeding.

PN208

I put it to you that when you met Mr Murray and he asked you whether you wanted to attend at a meeting that he had arranged, you asked him if he had got your email; is that correct?‑‑‑Yes.

PN209

Mr Murray said to you he had; is that correct?‑‑‑Yes, I believe so, yes.

PN210

Mr Murray then said to you that he is giving you an opportunity to freely attend that meeting now?‑‑‑He actually told me to go and wait outside for ten minutes and then to wait as he consulted Mr Barlow.

PN211

I put it to you that he said words similar to: "I am giving you a further opportunity to attend that meeting"?‑‑‑Which I attended. He may have done. Again, I am not 100 per cent sure of the actual words spoken at that time, but I did attend that meeting.

PN212

What happened in the meeting?‑‑‑I walked into the meeting. I did not have a witness with me. Mr Barlow was in there. I requested that I record the meeting as an accurate record of what went on in the meeting. Mr Barlow said that he did not - he felt that he had - he did not agree with me recording and he said that they will not - that he would not allow the recording to happen. I said I would end the recording. There was some - there was a moment of silence and then Mr Murray handed me an envelope with the disciplinary notice inside.

PN213

I put it to you that the sequence of events were as follows. That you approached Murray?‑‑‑On the 10th.

PN214

On the 10th. He asked you whether you were prepared to attend the meeting he had arranged the day before?‑‑‑Not in that order. May I quantify or can I clarify my answer on that?

PN215

THE DEPUTY PRESIDENT: You need to just wait until you are asked a question?‑‑‑I'm sorry. I thought he stopped. I'm sorry, yes.

*** JOHN FAWKES XXN MR KENT

PN216

You need to wait until Mr Kent actually asks you something?‑‑‑No, I'm sorry. My apologies.

PN217

MR KENT: You then asked him if he had got your email. Mr Murray said that he had; is that correct?‑‑‑Yes.

PN218

Mr Murray then said to you: "I'm giving you a further opportunity to attend the meeting." Is that correct or not?‑‑‑The recollection is a bit hazy, but it could be words along those lines.

PN219

I put it to you that then replied: "No"?‑‑‑Again, it's hazy, but I did not record the exact events or words that were spoken at that time.

PN220

I put it to you that you further said to Mr Murray that you would be in the depot this afternoon handing out further material; is that correct?‑‑‑They were the first words spoken to Mr Murray when I arrived at the depot.

PN221

THE DEPUTY PRESIDENT: Sorry, Mr Kent. Mr Ferguson, were you on your feet for a reason?

PN222

MR FERGUSON: I just put this submission to you. I put it - - -

PN223

THE DEPUTY PRESIDENT: Are you objecting to the question?

PN224

MR FERGUSON: Yes, because "I put it to you" is not a question. He needs to ask a question. He is not asking questions. He is putting a hypothesis and he is putting something imaginary or in his mind, but he is not asking - "I put it to you" is not a question. There has been plenty of courts where that's not acceptable practice to say, "I put it to you", because it's not a question. It's a proposition when you put: "I put it to you." He has got to ask direct questions and we were allowing Mr Kent some room, but it's gone beyond a point where that can be allowed to be acceptable. "I put it to you" is not a question and we would ask that Mr Kent actually ask questions and not "I put it to you" because that's a theory. It's not relevant. It's got to be to the point. He needs to ask direct questions, not "I put it to you."

PN225

THE DEPUTY PRESIDENT: As you will note, Mr Ferguson, I counselled the witness not to answer until he is asked a question previously before you objected.

PN226

MR FERGUSON: Yes, thank you, Ma'am.

*** JOHN FAWKES XXN MR KENT

PN227

THE DEPUTY PRESIDENT: Mr Kent, thank you.

PN228

MR KENT: Yes, thank you, Deputy President.

PN229

I suggest to you that you then said to Mr Murray, and I am just going back a step just to get us back to where we are at, I suggest to you that Mr Murray said to you - or you said to Mr Murray that you would be in the depot this afternoon handing out material; is that correct?

PN230

MR FERGUSON: Objection again. "I suggest to you" is not a question.

PN231

THE DEPUTY PRESIDENT: He put a proposition and then he asked the witness whether he agreed with it. That's a question. Sorry, Mr Ken.

PN232

MR KENT: Thank you, Commissioner.

PN233

THE DEPUTY PRESIDENT: You wait until Mr Kent asks you the question and then you answer, Mr Fawkes. Do you want to put the proposition again?

PN234

MR KENT: I will go back, Deputy President.

PN235

Just to repeat again, so we go back to where we were at. I suggest to you that you said to Mr Murray that you were in the depot this afternoon and would be handing out further material or words similar to that. What do you say to that?‑‑‑Not actually factually correct. I was in the depot, yes, to actually work. Prior to work, I would be handing out - handing out notices. That was the first - I walked through the door into the reception straight into Mr Murray's office and spoke to Mr Murray and asked his permission to hand out notices prior to me starting work.

PN236

You are now indicating that when you arrived at the depot on 10 January, you attended for the meeting that Mr Murray had arranged the day before; is this correct?‑‑‑No, I arrived at the depot to work and as a sense of good will, I went to Mr Murray's office as soon as walking through the door and asked his permission if I was allowed to distribute Transport Edge material in that depot.

*** JOHN FAWKES XXN MR KENT

PN237

In answer to a question I put to you just a short time ago, I said to you or I asked you the question that Mr Murray had asked you whether you were there, wanted to attend the meeting he arranged. Your answer or words similar was: "I was there. I did attend the meeting"?‑‑‑Yes. There is a series of events, Your Honour.

PN238

THE DEPUTY PRESIDENT: At the moment, your obligation is just to answer the questions that are asked?‑‑‑Okay.

PN239

In re-examination, your counsel, if he is concerned that there is something which requires clarification, he will ask you to clarify it?‑‑‑Okay.

PN240

But there is a rule of evidence which says that if counsel is going to put a proposition later in the evidence, they need to put that to the person whose evidence they are trying to contradict so they have an opportunity to give their version of events. So, that's why Mr Kent is putting propositions to you because his witnesses, I presume, are going to give that evidence subsequently and because you are first in line as far as witnesses go, he is giving you an opportunity now to put a contradictory view?‑‑‑All right.

PN241

You just need to respond to his questions and you are represented by counsel and if counsel feels that there is something which requires clarification as a result of the cross-examination, they will, in re-examination, ask you some questions?‑‑‑Okay, yes.

PN242

Counsel will know what their case is and what they need to establish and, so, Mr Ferguson may or may not ask you questions because he may be comfortable that the evidence is dealt with somewhere else in the evidence. But you just at this stage just need to answer Mr Kent's questions?‑‑‑No worries.

PN243

MR KENT: I wish to clarify the sequence of events regarding your meeting and discussion with Mr Murray on 10 January 2017. You had previously indicated that you attended the meeting that Mr Murray had arranged for 2 pm on 10 January. Is that your answer?‑‑‑Yes, but the arrangement was made at that time after - as soon as he said: "You may wait outside for 10 minutes while I consult."

PN244

You attended the meeting that Mr Murray had arranged for 2 pm on 10 January?‑‑‑On that particular day that he arranged that he had advised me to wait outside for.

PN245

You attended that meeting?‑‑‑I attended it, yes.

*** JOHN FAWKES XXN MR KENT

PN246

This is notwithstanding your email at 7.24 pm on 9 January saying you are not going to attend the meeting because the matter is before the Federal Court for determination and on the advice of your legal counsel, you have been advised not to attend?‑‑‑Can I have a little bit of leave - scope on that at all, please?

PN247

THE DEPUTY PRESIDENT: You just need to put the question. Mr Kent is asking you whether that sequence of events occurred. You need to answer his questions?‑‑‑Okay.

PN248

As I explained, in re-examination, if counsel is concerned that there is some matter which needs clarification, they will know what your evidence is and they will ask you appropriately?‑‑‑Yes, no worries. The meeting that you are referring to which I attended, as far as I was concerned at that moment, was not a general meeting that Mr Murray previously had been referring to. I was under the impression at the time that, "You wait outside for ten minutes and then you come and see me", was a different set of circumstances and it was a separate meeting to what he was previously referring to.

PN249

MR KENT: To clarify what you are saying, you did not attend the meeting that Mr Murray had arranged for 2 pm on 10 January?‑‑‑I attended the meeting that Mr Murray told me to wait outside for before asking me to come in to see him and Mr Barlow. Now, whether or not that is the meeting which he had originally arranged, I do not know because there appears to be two types of meetings here.

PN250

I put it to you and I suggest to you that the sequence of events are as follows and all you need to advise me is whether you agree with what I'm suggesting or not. Do you understand that?‑‑‑Yes, fire away.

PN251

I will put a sequence of events to you regarding 10 January and I simply would appreciate you responding to the questions in the sequence that I ask them and whether you agree with them or not. Do you understand that?‑‑‑Yes.

PN252

Thank you. I put it to you that Mr Murray spoke to you when you arrived at the depot on 10 January. Is that true or false?‑‑‑Yes, that's correct.

PN253

It's true, he did?‑‑‑Yes.

PN254

Thank you. I suggest that Mr Murray then said to you or asked you words similar to: did you want to attend the meeting he had arranged with you when you met with him on 9 January, the day before? Do you recall Mr Murray saying that to you on the 10th or not?‑‑‑So, essentially, no, I can't directly what you are saying, no.

*** JOHN FAWKES XXN MR KENT

PN255

Thank you. I suggest that you then asked Mr Murray whether he had got your email of the night before indicating that you weren't prepared to attend the meeting because the matter was now before the Federal Court and you had been advised by your legal representation not to participate in the meeting?‑‑‑I did. That is the essence of the email, yes.

PN256

Thank you. I also suggest to you that Mr Murray then said to you that he was giving you a further opportunity to attend the meeting he had arranged. What do you say to that?‑‑‑If, again, you are referring to the meeting on the 9th and which, according to you, he was reconvening again.

PN257

No, I am referring to a series of discussions or a discussion that occurred on 10 January. I am giving you a sequence of events that follow one after each other. All you need to do is indicate whether that occurred or not or whether you had no recollection of that discussion. It is not that difficult, Mr Fawkes?‑‑‑Well, actually it is, sir.

PN258

I am giving you our sequence of events. You just have to say whether you agree with it or not or you have no recollection. Do you understand that?‑‑‑I am trying to follow you, sir, but - okay.

PN259

I will put the question to you again. After Mr Murray acknowledged that he had received your email sent the night before, MR Murray asked you or said words similar to: "I'm giving you a further opportunity to attend the meeting"?‑‑‑He may have done, yes, along those lines.

PN260

Thank you. I suggest to you that you then replied to Mr Murray, no, you would not attend that meeting or words of similar effect. What do you say to that?‑‑‑Yes, to that particular meeting.

PN261

You said, no, you weren't going to attend that meeting; is that correct?‑‑‑That particular meeting, that's right.

PN262

Thank you. At that point, I suggest to you that you said to Mr Murray that you would be in the depot this afternoon handing out further material?‑‑‑That is incorrect. The sequence is incorrect.

PN263

You never said those words?‑‑‑Yes, I said those words, but the sequence is incorrect.

*** JOHN FAWKES XXN MR KENT

PN264

You did say the words, you would be in the depot this afternoon handing out further material. Do you agree with that?‑‑‑At the very first moment I met Mr Murray that day.

PN265

The sequence might be incorrect, but you certainly made that statement that you would be in the depot this afternoon handing out further material?‑‑‑Sorry, but I was at that depot to work. Before starting work, I was there and I asked Mr Murray's permission to hand out that material as a courtesy.

PN266

You haven't answered my question, Mr Fawkes. I am simply asking you to say whether you agree with what I am saying or not?‑‑‑In essence, no, I am not agreeing with what you are saying.

PN267

You are not agreeing. You didn't say to him that you are in the depot that afternoon to hand out further material?‑‑‑Specifically, no.

PN268

You didn't say that?‑‑‑Seventy-five per cent correct but - - -

PN269

I put it to you that Mr Murray then said to you words similar to: "You are not to hand out any material without management consent." What do you say to that, yes or no, or you don't recall?‑‑‑I'm not sure about that part of it. As I said, I cannot recollect.

PN270

You don't recollect. Okay, thank you. I then suggested Mr Murray asked you to wait either in the lunch room or the smoking area whilst he considered the matter. What do you say to that?‑‑‑He actually advised me that while he spoke to other persons, Mr Barlow, at that time.

PN271

You are saying he didn't ask you to either wait in the lunch room or the smoking area whilst he considered the matter?‑‑‑He advised me to wait outside until he sought - he spoke to other people. I have already stated that several times.

PN272

I suggest to you that after about ten minutes, Mr Murray went to see you in the smokers' area and asked you to come to his office?‑‑‑That is correct.

PN273

Thank you. When you got to his office, Mr Barlow was present; is that correct?‑‑‑Yes.

PN274

On entering the office, I put it to you that you said that you would be recording the discussion; is that correct?‑‑‑That's correct.

*** JOHN FAWKES XXN MR KENT

PN275

I further put it to you that both Mr Barlow and Mr Murray indicated to you that they did not give their consent for the discussion to be recorded; is that correct?‑‑‑Yes.

PN276

However, I also put it to you that you did not cease recording that you ignored this request and continued to record the discussion; is that correct?‑‑‑I didn't continue to record the discussion.

PN277

I further put it to you that Mr Murray then said to you words similar to: "You had agreed to meet today to discuss what occurred on 6 January." Is that correct?‑‑‑I don't actually recall those words.

PN278

He also put words to you similar to that you had originally agreed to attend that meeting on 10 January?‑‑‑Again, I don't recall those words.

PN279

That you subsequently emailed him and Mr Murray then said that you had emailed him to notify him that you would not be attending; is that correct?‑‑‑After I - no, that is - actually, no, that is not correct. I was - no, I do not believe that is correct.

PN280

I suggest you then said to Mr Murray that you advised him that the applicant would then be representing you?‑‑‑I am not aware of such a long-winded statement on that particular matter.

PN281

I further put it to you that the discussion then ended and you left the depot?‑‑‑That is incorrect. There is much further to that meeting than you said. I received a notice - a disciplinary notice.

PN282

I put it to you that later on 10 January 2017, Mr Murray issued you with a disciplinary letter regarding the matters on 6 January and your subsequent refusal to meet with Mr Murray to discuss the matter; is that correct?‑‑‑That's incorrect. Mr Murray issued me with the notice at the same time Mr Barlow is in that - the same meeting Mr Barlow is in that office.

PN283

You were then stood down pending you attending a disciplinary meeting on 12 January; is that correct?‑‑‑As per the instructions on the disciplinary notice.

PN284

On 12 January, you then attended the disciplinary meeting that had been arranged in that letter; is that correct?‑‑‑Yes.

*** JOHN FAWKES XXN MR KENT

PN285

You were accompanied by the applicant?‑‑‑Yes.

PN286

That disciplinary meeting was attended by both Mr Murray and Mr Steve Henderson?‑‑‑That is correct.

PN287

On behalf of the respondent?‑‑‑I believe so.

PN288

Mr Murray conducted the disciplinary hearing on that day?‑‑‑Yes, that's correct.

PN289

He kept a record of it?‑‑‑That's correct.

PN290

In writing?‑‑‑He recorded it in writing, yes.

PN291

It was subsequently typed out?‑‑‑Yes.

PN292

You subsequently signed that record of interview to confirm that you had received a copy of it but you didn't sign that it was an accurate record, did you?‑‑‑That is correct.

PN293

On 13 January, I put it to you that Mr Murray then issued you with a final warning notice in relation to the circumstances or matters of 6 January. I will repeat the question. I put it to you - - -?‑‑‑No, no, I'm just trying to - yes, I did receive a final warning notice, yes.

PN294

The warning notice related to just in general terms, I am not going to read the whole notice to you, but you can just indicate to me whether you agree with this summary, that the warning notice related to you being observed handing out material on the 6th? But would you agree with that that the notice mentioned that?‑‑‑In the general terms - in the general terms.

PN295

It also mentioned that on two previous occasions you had been instructed by management to stop posting material on noticeboards and to stop approaching and handing out material to company's employees without first obtaining consent of management?‑‑‑It could be. If you have the warning notice there, I'll re-read it and verify it.

PN296

I am happy to provide you a copy if you want to refresh your memory of it?‑‑‑If you could please, yes.

*** JOHN FAWKES XXN MR KENT

PN297

Sure.

PN298

THE DEPUTY PRESIDENT: Just before the gentleman leaves the room, I will just let the parties know, and I should have done at the outset, that the floor is now locked. So, if anyone leaves the floor, you won't be able to get back up. So, you can go to the bathroom, but if you go downstairs, you won't be able to get back into the building because the security is locked.

PN299

MR KENT: The document I am handing up is annexure GM2 to the statutory declaration of Glenn Murray dated 7 March 2017?‑‑‑Thank you.

PN300

THE DEPUTY PRESIDENT: What page is that?

PN301

MR KENT: It is the second annexure to that. It's not page numbered, Deputy President.

PN302

THE DEPUTY PRESIDENT: Thank you.

PN303

MR KENT: I believe it's a document dated 13 January with the heading: "Final warning."

PN304

THE DEPUTY PRESIDENT: GM?

PN305

MR KENT: Two.

PN306

THE DEPUTY PRESIDENT: Dated 30 January, did you say?

PN307

MR KENT: 13th.

PN308

THE DEPUTY PRESIDENT: 10 January, yes, I have got the right one.

PN309

MR KENT: 13 January.

PN310

Just let me know when you have had a chance to read that, Mr Fawkes?‑‑‑Yes, okay.

*** JOHN FAWKES XXN MR KENT

PN311

That is a true copy of the final warning notice that was given to you on 13 January by Mr Murray?‑‑‑This is what I received from the company.

PN312

Thank you. Could I have that document back, please? Yes, thanks. No further questions for this witness.

PN313

THE DEPUTY PRESIDENT: Thank you.

RE-EXAMINATION BY MR FERGUSON [7.13 PM]

PN314

MR FERGUSON: Mr Fawkes, are you aware of any company policy that states that when an employee has finished part of their shift or concluded work for the day that they must leave the premises immediately? Are you aware of any policies?‑‑‑No policy. It is quite a common occurrence.

PN315

Mr Fawkes, is it usual for employees to stay behind at the depot when you break and have discussions with each other?‑‑‑We have done it many times before.

PN316

Do people sit around the shed and smoke cigarettes and other such things and have discussions?‑‑‑Yes, it's a meeting place.

PN317

You wouldn't be expected or have any knowledge that when you finish work you had to leave the premises?‑‑‑That's never been conveyed to us prior.

PN318

When you were down in the - we'll call it the smoking shed or the evacuation shed, I think as my friend referred to it, what sort of materials were you handing out at the time? Were you promoting industrial interests?‑‑‑The main - yes, I had - I had that material with me. The main – what the drivers were interested in was actually the email from Mr Thompson.

PN319

So the drivers were more interested in the email from Mr Thompson that was - - -?‑‑‑On my phone.

PN320

Which was requesting you to stop distributing information related to an industrial association?‑‑‑Yes.

*** JOHN FAWKES RXN MR FERGUSON

PN321

MR KENT: With respect, Commissioner, I object – Deputy President. In view of Mr Thompson's email does not mention anything about stop handing out material related to industrial activity. It just refers to not handing out material without obtaining prior consent.

PN322

MR FERGUSON: I'd make the point back that it's the lawful industrial right of workers under the industrial right of workers under the Industrial Relations Act, Deputy President, to be able to freely belong or not to belong, to be able to distribute materials related to any association. We are not a registered organisation. Transport Edge is not a registered organisation. But for the purposes of the Act it gives us right of entry. But it is an industrial association that is recognised under the Act and those associations, strongly supported by the Howard Liberal Government legislation of some years ago were put in place to allow individuals to have other choices other than trade unions, to be able to freely associate and distribute information. What we have here is a cross-examination - - -

PN323

THE DEPUTY PRESIDENT: I'm sorry, Mr Ferguson, we're not currently at a submission stage. You're at a stage of re-examining your witness. What you're - - -

PN324

MR FERGUSON: I'm just answering the point that my friend made. You've allowed him.

PN325

THE DEPUTY PRESIDENT: The point Mr Kent raised was an objection to the way - - -

PN326

MR KENT: I'll repeat what my objection was, to assist the Deputy President and Mr Ferguson. The objection was Mr Ferguson suggesting from the Bar table that Mr Thompson had given an instruction to Mr Fawkes not to hand out material related to industrial activity. It's quite clear, if you look at the emails of Mr Thompson which has already been done in the original cross-examination that it doesn't mention in anywhere about industrial related material, it just simply says, "Do not hand out material without obtaining prior consent of management." It's a completely different proposition than the one Mr Ferguson was seeking to put to the witness.

PN327

MR FERGUSON: Mr Fawkes, do you have your email system or anything on you at the moment?‑‑‑Yes, I do.

PN328

Are you in a position to pull up that email?‑‑‑Yes.

*** JOHN FAWKES RXN MR FERGUSON

PN329

Could you pull up that email and read it to the Deputy President, please, so we know what was actually said?

PN330

THE DEPUTY PRESIDENT: A), there should not be any telephones in the witness box. That is completely inappropriate. If you have a document please tender it. Is it - - -?‑‑‑I do have the document sitting over on the chair but - - -

PN331

Could you please tender it in hard copy? Could you please give your phone back to somebody over there because it's not appropriate to have a phone in the witness box?‑‑‑Okay, yes. No worries.

PN332

The reason why phones aren't appropriate in the witness box is because it then presents a perception that perhaps a witness is being coached. So it goes to your credibility. If you have a phone in the box then – I'm pretty sure that I mentioned it before we adjourned, that you shouldn't have the phone in the witness box and it should not be there, and any other witness who comes into the witness box shouldn't have a phone and I don't want to have to have my Associate frisk you all to check you haven't got phones, so I'm just going to take you on your word and make sure there aren't any phones in the witness box. Now as a matter of procedural fairness if you are going to refer to a document we need to make sure it's before the Commission and before all the parties, so if it's a document which isn't already before me because it's been tendered by either party in their submissions, part of their submissions, you need to let me know what it is so we can get a copy for everybody in the room. Is it a document that's already - - -?‑‑‑Was that the document previously - - -

PN333

MR FERGUSON: It may have been tendered but we haven't been able to access the documents that were forwarded in this morning for the reason that we provided, Deputy President.

PN334

THE DEPUTY PRESIDENT: Sorry, I thought that Mr Kent provided you with a full copy of the materials and Mr Dzieciol has informed me that the TWU have filed and sent their materials, as well, and my Associate had arranged for a copy of those TWU materials, so as I - - -

PN335

MR FERGUSON: We haven't received those, as yet.

PN336

THE DEPUTY PRESIDENT: Okay, well there you go.

PN337

MR KENT: You are correct, Deputy President. Mr – I handed a copy of all - - -

PN338

THE DEPUTY PRESIDENT: Prior to the break?

*** JOHN FAWKES RXN MR FERGUSON

PN339

MR KENT: To Mr Quinn, prior to the break. So they've had it since your adjournment at 4.35 pm this afternoon.

PN340

THE DEPUTY PRESIDENT: Thank you.

PN341

MR KENT: So we were referring to the email from Brian Thompson of 6 January at 9.24 am.

PN342

THE DEPUTY PRESIDENT: Okay, and do you have a copy of that? Is that part of the documents that have been tendered?

PN343

MR KENT: I don't know. Has it been tendered, has - - -

PN344

THE DEPUTY PRESIDENT: So Mr Ferguson, are you proposing to tender that document as evidence?

PN345

MR FERGUSON: We would hope that we could tender that document. If we have it in the bundle that's supplied, we wouldn't know.

PN346

THE DEPUTY PRESIDENT: Okay, well it's your evidence, Mr Ferguson. Are you proposing to tender it as evidence?

PN347

MR FERGUSON: I would like to tender the document Mr Fawkes has in his possession.

PN348

THE DEPUTY PRESIDENT: Okay. Could Mr Fawkes – why is it not a document that's already been tendered, with the documents you've tendered?‑‑‑I believe it's the same email that Mr Kent was earlier referring to.

PN349

MR FERGUSON: Mr Kent must have it on his file.

PN350

THE DEPUTY PRESIDENT: Okay, but you're not – Mr Kent's not running your case.

PN351

MR FERGUSON: No, and as I told you, we did not get those documents provided to us.

*** JOHN FAWKES RXN MR FERGUSON

PN352

THE DEPUTY PRESIDENT: The materials, Mr Ferguson, have been served in the way that materials are customarily served in this jurisdiction every day of the week. You now have been provided at 4.30 this afternoon, with a full hard copy by the respondent, Swan Transit.

PN353

MR FERGUSON: Yes, and there's - - -

PN354

THE DEPUTY PRESIDENT: So if there's any - - -

PN355

MR FERGUSON: And there's over 375 pages. It's now 25 past seven. We had a short break, which I had to have a meal like other people do, and we have not been able to go through the documents to the degree that's required and that is why, Deputy President, we requested that the matter should have been adjourned and allowed us to go over and examine all those documents tonight so we'd be in a position to present the case tomorrow morning.

PN356

THE DEPUTY PRESIDENT: Mr Ferguson, you asked me to hear and determine the matter. I have matters listed all day tomorrow, so I can't hear and determine it tomorrow, so we need to hear it today.

PN357

MR FERGUSON: Mr Fawkes was asked a question and Mr Fawkes has said that he has a copy of the document.

PN358

THE DEPUTY PRESIDENT: Okay, and if you want a matter to go - - -

PN359

MR FERGUSON: Is it not permissible for Mr Fawkes to tender a document that your Associate can go out and photocopy and provide a copy to all the parties so that each party has a copy of it, then it can be tendered properly?

PN360

THE DEPUTY PRESIDENT: Okay. Mr Ferguson we will delay the proceedings while we get in evidence material that you should have already filed. Mr Fawkes can you please forward a copy to my Associate's chambers?

PN361

MR FERGUSON: Madam. Madam, I come to this point again and I will repeat this to you again. You gave us less than five hours to put submissions together.

PN362

THE DEPUTY PRESIDENT: Mr Fawkes, could you please forward the email to my chambers and my Associate can print it and then provide copies to all the parties?‑‑‑Via the phone?

*** JOHN FAWKES RXN MR FERGUSON

PN363

Yes. You go over there. Unless, Mr Kent, do you mind doing - - -

PN364

MR KENT: Deputy President, it is pages 672 to 674 in the annexures to the statutory declaration of Brian Thompson.

PN365

THE DEPUTY PRESIDENT: Okay, thank you.

PN366

MR KENT: And it's documents that Mr Ferguson has in his possession and has had since 4.30 today.

PN367

THE DEPUTY PRESIDENT: Thank you.

PN368

MR FERGUSON: Just for clarity, Mr Fawkes, is the email that's being referred to the one on Friday, 6 January:

PN369

John, over recent days you have been handing out unauthorised brochures, advertising notices to the staff at the depot.

PN370

Is that the email?‑‑‑That's the one, yes.

PN371

We have located it at 672, Madam, Deputy President.

PN372

THE DEPUTY PRESIDENT: Yes.

PN373

MR FERGUSON: I shall read it into the transcript:

PN374

John, over recent days you have been - - -

PN375

THE DEPUTY PRESIDENT: You don't need to read it into the transcript because I can read it and it's been tendered as a document, so it doesn't need to be read into transcript. It will be tendered as an exhibit and what I'll do is, I'll mark that witness statement and then I will have it sworn into evidence when the witness is in the witness box. So I'm going to mark it R1.

EXHIBIT #R1 EMAIL DATED 6 JANUARY

*** JOHN FAWKES RXN MR FERGUSON

PN376

MR FERGUSON: Mr Fawkes, I will take you to the second sentence of the first paragraph.

PN377

These brochures are regarding Transport Edge Inc Organisation.

PN378

That's what it says, doesn't it?‑‑‑That's correct.

PN379

Transport Inc is a workers' association?‑‑‑Yes.

PN380

And is your understanding that you have a right at law to freely belong to any association that you wish to belong to as an am employee?‑‑‑I truly believe so.

PN381

Do you believe you have a right at law to freely distribute materials from an association that may promote and organise certain positions related to that association that you are in a position to relay to other workers?‑‑‑I truly believe so, yes.

PN382

Yes. I've no further questions on that document?‑‑‑Yes.

PN383

THE DEPUTY PRESIDENT: Have you finished your re-examination?

PN384

MR FERGUSON: No. On that document. I'll continue. Mr Fawkes, you provided some evidence when attending, I think it's on 9 or 10 January, I'm not too sure, but you say the first thing you did is you went to Mr Murray's office and asked permission if you could distribute the material relating to Transport Edge?‑‑‑That is correct.

PN385

And what was his answer?‑‑‑He said no.

PN386

No. I've no more further questions.

PN387

THE DEPUTY PRESIDENT: Thank you?‑‑‑Can I – there's something which is really - - -

PN388

I'm really sorry but that's not your job to advocate from that witness box. You've got a counsel who questions you and if he thinks there's anything that needs to be added, he would have done that in re-examination?‑‑‑Can he recall me afterwards?

*** JOHN FAWKES RXN MR FERGUSON

PN389

No?‑‑‑Because there's something really missing out of this.

PN390

Okay. You have to trust your counsel is competent, I'm afraid. Okay, so is there any other – we've re-examined. Mr Dzieciol, you didn't want to cross-examine, did you? You've indicated you didn't want to cross-examine before, didn't you?

PN391

MR FERGUSON: Excuse me, Madam, I haven't quite finished. Prior to the first vote being defeated or rejected by the members, were you ever escorted off the premises by anyone within Swan management?

PN392

MR KENT: With respect, Deputy President, I object to the leading of completely new evidence during re-examination.

PN393

THE DEPUTY PRESIDENT: Yes.

PN394

MR KENT: It is not the purpose of re-examination to lead new evidence. It should have been led in the evidence-in-chief of this witness so it could be cross-examined.

PN395

THE DEPUTY PRESIDENT: Yes. Mr Ferguson, I'm sure you're familiar with the principles of re-examination.

PN396

MR FERGUSON: It's all right. It's in the submissions so it's there for you to look at anyway, so – it's all right.

PN397

THE DEPUTY PRESIDENT: Mr Fawkes, you're released from the witness box?‑‑‑Thank you.

PN398

And you're released from your oath?‑‑‑I can talk to people now?

PN399

You can talk to people now. You can even eat with them if you so desire?‑‑‑Thank you.

<THE WITNESS WITHDREW [7.27 PM]

PN400

THE DEPUTY PRESIDENT: Mr Ferguson, do you wish to - - -

*** JOHN FAWKES RXN MR FERGUSON

PN401

MR FERGUSON: I call Mr Parker, please.

PN402

THE DEPUTY PRESIDENT: Call Mr Parker.

PN403

MR KENT: Deputy President, Mr Parker has been in the chamber all the way through the giving of evidence, so far.

PN404

THE DEPUTY PRESIDENT: Yes. We had a witness in hearing. We're now calling Mr Parker, even though he's been in court? Okay, Mr Ferguson, you're not unfamiliar with these types of proceedings, are you?

PN405

MR FERGUSON: I have my back to – he's sitting behind me, Madam, and I would have thought that your Associate, who was already on notice that Mr Parker was going to give notice[sic] would have had Mr Parker excluded.

PN406

THE DEPUTY PRESIDENT: Okay, so - - -

PN407

MR FERGUSON: I'm facing the Bench.

PN408

THE DEPUTY PRESIDENT: My Associate is not responsible for the conduct of your case. You're responsible for the conduct of your case and as counsel you have an obligation to ensure witnesses are out of court, and the reason why witnesses are out of court is to make sure that evidence is not tapered, not tampered with, is not coloured by the evidence of other witnesses. So all you've done is undermine the evidence that Mr Parker is now able to give. It's a very, very simple process in this Commission and it's observed in all proceedings that witnesses are out of court unless there's an application - - -

PN409

MR FERGUSON: If there had been proper processes put in to allow this occur in a proper way, these errors wouldn't have been made.

PN410

THE DEPUTY PRESIDENT: I'm sorry. I'm sorry, Mr Ferguson. The error that's been made is yours. As counsel you should be aware that parties should be made unless you make an application.

PN411

MR FERGUSON: I am not counsel. I am not counsel. I am not legally trained. I am - - -

PN412

THE DEPUTY PRESIDENT: Okay, Mr Ferguson - - -

PN413

MR FERGUSON: I am an applicant in a matter and I am not counsel.

PN414

THE DEPUTY PRESIDENT: Okay - - -

PN415

MR FERGUSON: And you should not refer to me as counsel.

PN416

THE DEPUTY PRESIDENT: Okay, so you have no experience in this jurisdiction to be aware that parties should be out of the proceedings?

PN417

MR FERGUSON: I have no legal training, as such. I am a lay advocate, at best.

PN418

THE DEPUTY PRESIDENT: Okay, and you no experience in these proceedings to know that witnesses are out of court?

PN419

MR FERGUSON: I have many years experience in this court, as I just advised, Madam President. I was unaware that Mr Parker was behind me. Now that's unfortunate that it's occurred but Mr Parker's evidence is totally separate from any evidence that relates to Fawkes and I would wonder how his evidence could be tinged by listening to what Mr Fawkes said.

PN420

THE DEPUTY PRESIDENT: Mr Parker, can you resume your seat and I'm going to take submissions from the other parties about whether you're able to give evidence. Mr Kent, do you have any objections to Mr Parker giving evidence, or what weight I should attach to Mr Parker's evidence if he does give evidence?

PN421

MR KENT: As with any witness, Deputy President, it is a matter for yourself as the arbitrator of both evidence and fact to decide what weight you choose to give to the evidence of a witness. As you've already indicated, where a witness has been in the chamber and listening to the evidence of other witnesses and submissions from the participants in the litigation. It brings into question the voracity of their evidence. I think it's important given the nature and the submissions that have already been made in this matter, that the applicant be given the widest leniency in relation to the presentation of his case to minimise any further objections being made to the manner in which the proceedings are being conducted. In that sense we do not object to Mr Parker giving evidence, however we would submit that the credit to be given to his evidence would be significantly diminished based on this breach of procedure. Thank you, Deputy President.

PN422

THE DEPUTY PRESIDENT: Thank you.

PN423

MR DZIECIOL: Deputy President, if I might just comment on that, in terms of – although Mr Parker has been present throughout the evidence of the previous witness his evidence-in-chief has been put into writing and has been given to the parties, so in that respect Mr Parker's evidence-in-chief would not be coloured in any way by the evidence of other witnesses. So in that respect I would suggest that there should be no issue in relation to Mr Parker's evidence-in-chief.

PN424

THE DEPUTY PRESIDENT: Thank you, Mr Dzieciol. Mr Ferguson, what are your submissions?

PN425

MR FERGUSON: My submissions are that this document was tendered last week. It's a three page document of 25 points. It was composed before any evidence was given and I only ask that Mr Parker be able to tender that evidence and answer questions related to those matters that are in the 25 points over the three pages that he'd made.

PN426

THE DEPUTY PRESIDENT: Thank you. Mr Parker, I'm going to let you give your evidence, but where your evidence differs from that in your statement, so if you are asked additional questions in cross-examination or re-examination, I'm going to have to attach appropriate weigh to that evidence given that you've been present in the proceedings, okay? So you can come and give your evidence.

PN427

THE ASSOCIATE: Please state your full name and address?

PN428

MR PARKER: My name is Walter Clifford Parker, (address supplied).

<WALTER CLIFFORD PARKER, AFFIRMED [7.34 PM]

EXAMINATION-IN-CHIEF BY MR FERGUSON [7.34 PM]

PN429

MR FERGUSON: I would ask that Madam Associate – have you got a copy there, Mr Parker?‑‑‑No, I haven't.

PN430

THE DEPUTY PRESIDENT: The Associate will pass it up.

PN431

MR FERGUSON: I was asking Madam Associate to - - -?‑‑‑Thank you.

PN432

Deputy President, if we go into my - - -

*** WALTER CLIFFORD PARKER XN MR FERGUSON

PN433

THE DEPUTY PRESIDENT: Mr Parker, if you'd like to sit down you're welcome to, or you can stand, whatever you're comfortable with?‑‑‑No, I'll sit down.

PN434

Okay?‑‑‑I was just having a drink.

PN435

MR FERGUSON: If we mark this as A2.

PN436

THE DEPUTY PRESIDENT: I will, once he's sworn to it.

PN437

MR FERGUSON: Okay. Mr Parker, if you could just take a few moments to read your statement, to be content that it's accurate?‑‑‑Righteo.

PN438

Mr Parker, you've read the three pages and the 25 paragraphs of your statement?‑‑‑Yes.

PN439

Is that a true and accurate record?‑‑‑Yes, that's pretty close to the mark.

PN440

THE DEPUTY PRESIDENT: It has to be true, not just close to the mark, Mr Parker?‑‑‑Well, it's true.

PN441

Excellent, thank you. Okay, I'm going to mark the witness statement of Mr Walter Clifford Parker as A2.

EXHIBIT #A2 WITNESS STATEMENT OF WALTER CLIFFORD PARKER.

PN442

MR FERGUSON: You're a bus driver with Swan Transit Services at the Beckenham depot?‑‑‑Correct. Correct.

PN443

And you own a SsangYong ute - utility?‑‑‑That's correct.

PN444

Is it a practice of the employer that you're allowed to park your vehicle on the inside of the premises in parking bays provided for employees?‑‑‑Yes, it is.

PN445

And the notice boards that are attached to your ute, do they extend out of the body of the ute or are they kept internally within side the body of the utility?‑‑‑They're kept within the boundaries of the vehicle, they don't protrude, at all.

*** WALTER CLIFFORD PARKER XN MR FERGUSON

PN446

You say that – as 12 that you, amongst other things, had an Australia Day poster up, advertising Australia Day?‑‑‑That's correct.

PN447

And you had a number of other materials and pamphlets relating to Transport Edge and Industrial Association?‑‑‑Yes, I did.

PN448

And it was your desire to advertise all of those posters and information to those that wanted to read or walk past your vehicle so they could see those?‑‑‑Yes, I did.

PN449

All of the property on those notice boards was your personal property?‑‑‑That's correct.

PN450

Do you know what happened to your personal property?‑‑‑I don't – I wasn't there to actually see the removal but when I got back to the depot they'd all been taken off, every one of them and I can only assume they were taken off by human hands because the wind couldn't have blown them all off.

PN451

You say at 17, "I informed Glenn that the notices were mine, were on my vehicle and were my personal property", and at 18 you say, "I was told that all notices had been removed." Was that Glenn Murray that had told you that all the notices had been removed?‑‑‑Yes. I was in his office.

PN452

And you asked Mr Murray for the return?‑‑‑I did.

PN453

And he said no?‑‑‑That's right.

PN454

I go to your statement at 20. "Glen refused to give them back and said, 'We can do this the easy way or the hard way'"?‑‑‑That's correct.

PN455

What do you think the meaning of the words, "We can do this the easy way or the hard way", were meant to convey to you?‑‑‑I perceived that as a direct threat to my continued employment.

PN456

And that was related to you putting notices in your internal notice board on your ute?‑‑‑Correct.

PN457

Are you aware, Mr Parker, of any company policies that forbid you to place notices on your own vehicle?‑‑‑No, I've never heard of it before.

*** WALTER CLIFFORD PARKER XN MR FERGUSON

PN458

You say at 23 that an hour later you were delivered with a warning letter?‑‑‑That's right. Glenn - - -

PN459

Can you explain do Deputy President what the warning letter was implying to you?‑‑‑The warning letter explained that I was not allowed to put up notices and the way it was worded, it seemed to be describing notices on Swan Transit's property, or Transperth buses, neither of which I did. I can only assume that this rule applies to if you put notices up on Swan Transit property or Transperth property. I could not see how it related to my own personal vehicle.

PN460

I have no further questions.

PN461

THE DEPUTY PRESIDENT: Thank you. Mr Dzieciol? Mr Dzieciol?

PN462

MR DZIECIOL: No.

PN463

THE DEPUTY PRESIDENT: Okay. Mr Kent?

CROSS-EXAMINATION BY MR KENT [7.41 PM]

PN464

MR KENT: Thank you, Deputy President. Mr Parker, where was your vehicle parked at the time?‑‑‑It was in the car park of the Beckenham Depot.

PN465

And Beckenham Depot is the respondent's property, is that correct?‑‑‑By the respondent, you mean Swan Transit?

PN466

Yes?‑‑‑I'm not sure whose property it is. I thought it might be Transperth property, but yes, if that – they own it, then yes, their property.

PN467

I put it to you that they control that property, don't they?‑‑‑So they don't actually own it?

PN468

Well, I put it to you, the question is, they control and operate that property, don't they?‑‑‑Well, they must do.

PN469

And your vehicle was parked on Swan Transit property?‑‑‑That's right.

*** WALTER CLIFFORD PARKER XXN MR KENT

PN470

Thank you, Mr Parker. Did you ask permission to put the signs, display the signs on Swan Transit property?‑‑‑The signs weren't displayed on Transperth property, they were displayed on my ute.

PN471

That wasn't my question. My question was, did you ask permission to display the signs on Swan property?‑‑‑No, I did not.

PN472

But you agreed that your car was parked on Swan property?‑‑‑Yes.

PN473

Thank you. I suggest to you that you met with Mr Murray on 25 January at about 9.15 am in his office when you returned to the depot?‑‑‑That's right. I got a radio call to meet him in his office.

PN474

I suggest to you that Mr Murray then asked you, what was the story behind displaying the notices?‑‑‑That's right.

PN475

Words to a similar effect?‑‑‑Yes.

PN476

And you said the notices were your property and you wanted them back?‑‑‑That's right.

PN477

I suggest to you that Mr Murray then advised you that the notice had been removed as you hadn't complied with company policy by asking if it was okay before you displayed the notices on Swan property?‑‑‑As I said previously, I didn't consider that I had to have permission to display things on my own vehicle.

PN478

Mr Parker, I'll ask you a question and if you could just answer the question that I ask that would be great?‑‑‑Righteo.

PN479

My question was, I suggest to you that Mr Murray said to you that he the notices had been removed because you had not complied with company policy by asking if it was okay, before you displayed the notices on Swan property. Did he say words similar to that, to you?‑‑‑Yes.

PN480

Thank you. I suggest to you that you then said to Mr Murray, that you did not know what was in the notices because you hadn't read them?‑‑‑I read one notice which was one that I printed myself.

PN481

Was that a yes or a no?‑‑‑I did say that I hadn't read them, yes.

*** WALTER CLIFFORD PARKER XXN MR KENT

PN482

I then suggest to you that you said to Mr Murray that the ute was your property and that we, as in Mr Murray, had no right to touch it?‑‑‑That's correct.

PN483

Mr Murray then said to you words similar to, the company had simply removed the unauthorised notices from the tray of the ute. Did he say words similar to that, to you?‑‑‑I think so, yes.

PN484

You said to him, words similar to, or I suggest you said to him words similar to, you could treat that as theft?‑‑‑Well, I asked for them back, and he said no, I couldn't have them back.

PN485

Mr Parker, I ask you a question and you simply say whether that's correct or not correct?‑‑‑Yes.

PN486

You did say to him, you could treat that as theft?‑‑‑Yes, I did.

PN487

I suggest to you that Mr Murray then said to you, we have a right to deal with any unauthorised property brought into the depot?‑‑‑I don't remember him saying that.

PN488

I also suggest to you that Mr Murray then said to you that if you wanted to display notices on your vehicle, you could remove it from the premises and park it on the street or at the local shopping centre, but not in the depot?‑‑‑Yes, I remember him saying something – words to that effect, yes.

PN489

Mr Murray then gave you a verbal warning not to display notices in the depot without first asking if it was okay?‑‑‑Yes, I think I remember him saying that, yes.

PN490

Then later that same day, Mr Murray then provided you with a letter outlining that verbal warning?‑‑‑That's correct.

PN491

In relation to your statement, I suggest to you that Mr Murray never used words such as we can do this the easy way or the hard way?‑‑‑That's not true.

PN492

No further cross-examination, Deputy President.

PN493

THE DEPUTY PRESIDENT: Thank you.

*** WALTER CLIFFORD PARKER XXN MR KENT

PN494

MR FERGUSON: Mr Parker, re-examination.

RE-EXAMINATION BY MR FERGUSON [7.48 PM]

PN495

Mr Parker, when other vehicles are parked in the depot at Beckenham, do other vehicles display like banners of say the Dockers Football Club or the Eagles?

PN496

MR KENT: With respect, Deputy President, it's evidence in chief that's being led again during re-examination. It's not a question that was put to him upon which I was given the right to re-examine. I suggest that it shouldn't be allowed.

PN497

THE DEPUTY PRESIDENT: Mr Ferguson, could you frame your re-examination by referring to the question that was asked in cross-examination, so it's clear what part of the cross-examination it relates to.

PN498

MR FERGUSON: The cross-examination, as I understand it related to what is authorised material in terms of company policy. Mr Parker has raised the point that as far as he was aware, there was no policy relating to materials on personal vehicles, or any restriction on parking your vehicles inside the premises. It just goes to follow the question is based on this, that if all materials that displayed on vehicles had to be approved before they could be allowed in, then the question that naturally follows - - -

PN499

THE DEPUTY PRESIDENT: Sorry, can you just go back. I'm just trying to identify which question in cross-examination your question follows – because at the moment you're referencing it to the - - -

PN500

MR FERGUSON: Well, it's very hard - because I put it to you - - -

PN501

THE DEPUTY PRESIDENT: At the moment you're referencing it to the evidence in chief. What I've got to do is reference it to the issue in cross-examination. What question was put in cross-examination that you're trying to clarify?

PN502

MR FERGUSON: It was about the warning that was given to handing out unauthorised material by Mr Murray, that's as I can read it as it was raised with Mr Parker. We'd already asked the question of Mr Parker, was he aware of any policies, and his answer to that was no.

PN503

THE DEPUTY PRESIDENT: In re-examination, the question needs to relate to an issue that we had in cross-examination.

*** WALTER CLIFFORD PARKER RXN MR FERGUSON

PN504

MR FERGUSON: I don't recall the exact question.

PN505

THE DEPUTY PRESIDENT: I can't permit questions that are evidence in chief, or if I do, I have to attach very little weight to them, because the idea of re-examination is that you clarify issues that are raised in cross-examination. It's not the opportunity to lead new evidence. If you're able to point to a question that you wish to clarify, your more than welcome to put that question to the witness, however, you shouldn't be leading new evidence in re-examination.

PN506

Is there a question that relates to the cross-examination that you wish to put to your witness?

PN507

MR FERGUSON: It relates to the authority to display materials. We've asked questions in relationship to Mr Parker's understanding of authority to display materials. My friend has asked questions of Mr Parker in relationship to displaying of materials. We simply seek to ask another question related to displaying of materials and company policy. That question that we wish to put to Mr Parker would be - - -

PN508

MR KENT: I object, Deputy President. I mean, once again, if Mr Ferguson wishes to lead evidence in chief, he needs to lead it through his witness and allow me the opportunity to re-examine. You and I both know, re-examination only relates to issues that have arisen as a result of my cross-examination. There was no questions in my cross-examination about any policies or other vehicles displaying signs in the depot. That is new evidence; it is evidence in chief. It shouldn't be allowed during re-examination.

PN509

THE DEPUTY PRESIDENT: Mr Ferguson, because you're not counsel and because some of the basic principles of advocacy you're not clearly familiar with, what I'm going to do is I'll allow you to put the question, but then I'm going to have to allow Mr Ken to re-examine on the question, okay. But with witness evidence it's very important and its very basic principle of advocacy, that advocates who appear before the Tribunal are usually aware of, that you put evidence in chief in evidence in chief and that re-examination is only the opportunity to clarify issues that are raised in cross-examination, not by reference to issues that you've raised in evidence in chief.

PN510

If you'd like to put the question, then I'll give Mr Dzieciol and Mr Kent the opportunity to cross-examine if they choose to do so.

*** WALTER CLIFFORD PARKER RXN MR FERGUSON

PN511

MR FERGUSON: The question Mr Parker is simply, do other people have such things as Eagles and Dockers stickers on vehicles?‑‑‑I believe so, yes.

PN512

Are you aware that - - -

PN513

THE DEPUTY PRESIDENT: I'm sorry, are we asking more questions? I thought that was the one question you were going to ask. Is there a chain of questions you wish to ask?

PN514

MR FERGUSON: I will sit down and I won't ask any more questions.

PN515

THE DEPUTY PRESIDENT: Mr Parker, what I'm going to do, is I'm going to put you out of court while we have this debate, because I don't want it to colour your evidence. If you go outside the court for a moment. Just remember you're under oath?‑‑‑Yes.

PN516

If you pop outside.

PN517

Mr Ferguson, could you let me know what questions you're proposing to ask so that I can make a ruling in relation to those questions.

PN518

MR FERGUSON: I have no further questions to ask. You don't need to make a ruling; I've finished my questions. I don't need to do any more examination of Mr Parker.

PN519

THE DEPUTY PRESIDENT: So there's nothing else you want to ask Mr Parker?

PN520

MR FERGUSON: No.

PN521

THE DEPUTY PRESIDENT: You're satisfied you've asked Mr Parker everything you want to ask Mr Parker?

PN522

MR FERGUSON: Yes.

PN523

THE DEPUTY PRESIDENT: Okay, thank you. Emma, can you please get Mr Parker back in the room?

*** WALTER CLIFFORD PARKER RXN MR FERGUSON

PN524

Sorry Mr Parker. Back in the chair and in the hot seat, again.

PN525

Mr Dzieciol, do you have anything that you wish to cross-examine as a result of that question.

PN526

MR DZIECIOL: I have nothing to say on the matter, no, Deputy President.

PN527

THE DEPUTY PRESIDENT: Thank you Mr Dzieciol. Mr Kent, is there anything you wish to ask as a result of that?

FURTHER CROSS-EXAMINATION BY MR KENT [7.55 PM]

PN528

MR KENT: Yes, Deputy President. Mr Parker, people displaying Dockers or other signs. Do you know whether they've asked permission or not of management to display them?‑‑‑Not having asked, no.

PN529

They may very well have sought permission to display them with management?‑‑‑It doesn't seem logical.

PN530

They may have sought. Is that right or wrong?‑‑‑I suppose they could have, but it just doesn't sound logical.

PN531

You don't know?‑‑‑No I don't.

PN532

They may have?‑‑‑They may have.

PN533

But you don't know?‑‑‑No, I don't know.

PN534

No further question, Deputy President.

PN535

THE DEPUTY PRESIDENT: Thank you.

PN536

Mr Parker, you're released from your oath now. You can return to the court.

<THE WITNESS WITHDREW [7.56 PM]

*** WALTER CLIFFORD PARKER FXXN MR KENT

PN537

THE DEPUTY PRESIDENT: Mr Ferguson, do you have any other witness evidence you wish to lead?

PN538

MR FERGUSON: No.

PN539

THE DEPUTY PRESIDENT: Mr Dzieciol, is there any witness evidence you wish to lead?

PN540

MR DZIECIOL: No, the TWU does not propose to lead any witness evidence.

PN541

THE DEPUTY PRESIDENT: Thank you Mr Dzieciol.

PN542

Mr Kent?

PN543

MR KENT: Yes, I call Glenn Murray.

PN544

THE DEPUTY PRESIDENT: No, the associate will get the witness. The representatives stay at the Bar table. We have a D-mark on here. The representatives remain at the Bar table, the associate moves between the witnesses and the Bar table.

PN545

MR KENT: Thank you, Deputy President.

PN546

THE DEPUTY PRESIDENT: Thank you, you can leave if you like.

PN547

MR KENT: Deputy President, I'm just – Mr Murray - - -

PN548

THE DEPUTY PRESIDENT: He's going to hand his phone over.

PN549

MR KENT: Absolutely.

PN550

THE DEPUTY PRESIDENT: Emma is going to check every witness that comes into the box and make sure they don't have their phone.

<GLENN MURRAY, AFFIRMED [7.57 PM]

EXAMINATION-IN-CHIEF BY MR KENT [7.57 PM]

*** GLENN MURRAY XN MR KENT

PN551

THE DEPUTY PRESIDENT: You can take a seat if you like.

PN552

MR KENT: Is your name Glenn Murray?‑‑‑Yes, it is.

PN553

Are you an Operation Manager for the respondent?‑‑‑That is correct.

PN554

That's Swan Transit Services South Pty Ltd?‑‑‑That is correct.

PN555

You are the Operations Manager at the Beckenham Depot?‑‑‑That is correct.

PN556

Mr Murray, have you sworn a statutory declaration dated 7 March 2017 and annexing six annexures to that statutory declaration for the purposes of this matter?‑‑‑Yes I have.

PN557

Is it a true and correct record of your recollection of the dealings referred to in that statutory declaration?‑‑‑Yes, it is.

PN558

I tender that statutory declaration, Deputy President.

PN559

THE DEPUTY PRESIDENT: I'm going to mark the statutory declaration of Mr Glenn Murray as exhibit R2.

EXHIBIT #R2 STATUTORY DECLARATION OF GLENN MURRAY DATED 07/03/2017

PN560

MR KENT: Mr Murray, in Mr Parker's evidence, he indicated that you met with him on 25 January, after he returned to the depot?‑‑‑That is correct, yes.

PN561

You met with him and you had a discussion with him regarding notices that were displayed in the back of his utility parked in the depot car park. Is that correct?‑‑‑That is correct.

PN562

Mr Parker, during the discussion, has alleged that you said to him when you refused – he asked you to give him back the notices. Is that correct?‑‑‑Yes he did, yes.

*** GLENN MURRAY XN MR KENT

PN563

Then he said, you said to him, we can do this the easy way or the hard way?‑‑‑Yes, I did say that, yes.

PN564

I have no further questions, Deputy President.

PN565

THE DEPUTY PRESIDENT: Thank you.

PN566

Mr Ferguson, re-examination?

CROSS-EXAMINATION BY MR FERGUSON [8.01 PM]

PN567

MR FERGUSON: Mr Murray, what did you mean by the easy way or the hard way?‑‑‑What was meant by it was when I met with Walter and he came into my office on that morning to discuss the matter, was that – sorry, can I just refer to my statutory declaration?

PN568

I don't think Deputy President will allow that of the other witness?‑‑‑The context of it was - - -

PN569

MR FERGUSON: I beg your pardon, Deputy President.

PN570

THE DEPUTY PRESIDENT: I thought one of the witnesses had their statutory declaration.

PN571

MR KENT: I think everyone was given their statement to have a look at and adopt and say whether it was true and correct and they all had it with them all the way through.

PN572

THE DEPUTY PRESIDENT: I thought the first witness was referring to his statement in his evidence. Is that not the case, Mr Ferguson?

PN573

MR FERGUSON: Sorry, missed that.

PN574

THE DEPUTY PRESIDENT: Did your first witness not refer to his statement during his evidence? I thought on a number of occasions, he said in my statement I say this; in my statement I say that. I thought that he had it in front of him and he was referring to his statement because I had to counsel him that the question wasn't about what his statement said, it was about what the question that was put to him.

*** GLENN MURRAY XXN MR FERGUSON

PN575

MR FERGUSON: Well, if Madam is satisfied, then Mr Murray can proceed to read off his statement.

PN576

THE DEPUTY PRESIDENT: Is that not the case?

PN577

MR KENT: It was my recollection Deputy President that Mr Fawkes had his statement with him through his evidence.

PN578

THE DEPUTY PRESIDENT: Mr Ferguson, is that not your recollection?

PN579

MR FERGUSON: I'm not sure. If that has occurred and Deputy President's been watching proceedings, then if that's the case, then Mr Murray should be able to read off his statement.

PN580

THE DEPUTY PRESIDENT: I want to make sure that my recollection is correct. Is that your recollection of what occurred as well?

PN581

MR FERGUSON: No, it's not.

PN582

THE DEPUTY PRESIDENT: What was your recollection Mr Ferguson?

PN583

MR FERGUSON: My recollection is that Mr Fawkes was prevented.

PN584

THE DEPUTY PRESIDENT: Prevented, so Mr Fawkes didn't have his witness statement with him?

PN585

MR FERGUSON: I don't think so, but that may have occurred before the hearing where it was supplied to me.

PN586

THE DEPUTY PRESIDENT: You don't recollect me asking Mr Fawkes to answer the questions and not read off his statement? I explained to him that he was asking a question about his evidence, not about the content of his statement.

PN587

MR FERGUSON: I have no recollection of that conversation.

PN588

THE DEPUTY PRESIDENT: Do you have any objection?

*** GLENN MURRAY XXN MR FERGUSON

PN589

MR FERGUSON: No.

PN590

WITNESS: That statement was made due to the manner in which Walter came into my office on the day. Just the mannerism that he came in, I said look, I was happy to leave it there and then and just discuss the matter of notices. If he took them down and accepted what I had to say regarding putting unauthorised notices in the depot, I would have left it at that, but he wanted to continue and wanted to take matters further, saying that I'd taken them off him and had not given them to him and he thought that was theft. That's sort of where that context of it was made.

PN591

Do you know the name of the policy document, or where that policy lies in the company documentation?‑‑‑No, I don't.

PN592

But you're the Depot Manager?‑‑‑That's correct. The reason they are asked to not display unauthorised material is that they should seek management approval before doing so.

PN593

Is there a policy that you're aware of that states that before drivers do anything, they must seek management approval? Are you aware of a specific policy that lays that out anywhere?‑‑‑I was acting on guidance from the General Manager.

PN594

Your decision is related to Mr Parker and having no understanding of the policy, you relied on the General Manager to direct you?‑‑‑I was following guidance of the company General Manager.

PN595

Can you explain what guidance Mr Thompson gave you? What were the words he used in his guidance to you?‑‑‑No, I cannot.

PN596

Did Mr Thompson say go out and pull those signs off his vehicle?‑‑‑I always had to go on the instructions of the General Manager, that any unauthorised material in the depot should not be displayed and that it must be removed unless the parties seek permission before doing so, and it was approved by management for them to be able to do that.

PN597

Would unauthorised material cover such things as the local Girl Guides selling their biscuits? Would that be unauthorised material?‑‑‑Any material that's displayed on notice boards should be given permission by the management before staff put things on notice boards.

*** GLENN MURRAY XXN MR FERGUSON

PN598

But you're not aware of the policy that lays it out?‑‑‑No, I'm not.

PN599

Was that also guidance given to you by Mr Thompson, that if there were signs relating to the local Girl Guides biscuit sale, they would also have to be pulled down?‑‑‑No.

PN600

Have you ever had directions from Mr Thompson to pull down other materials in the work place?‑‑‑Yes, I have.

PN601

What sort of materials were you directed to pull down?‑‑‑Any documents that haven't been sought approval first.

PN602

What would some of those documents relate to? TWU publications?‑‑‑No.

PN603

Would they relate to employee publications?‑‑‑Any unauthorised material that was not sought approval, I was asked to take down from display, from public view.

PN604

Are you aware that workers have a right to distribute – and have freedom to distribute materials in the workplace as an authorised industrial rite under the Act, as a lawful industrial activity?‑‑‑Yes, but the company's view is that they should seek management approval prior to doing so.

PN605

MR FERGUSON: With respect, Deputy President.

PN606

THE DEPUTY PRESIDENT: You can't give legal advice.

PN607

MR KENT: I think the suggestion is something that is beyond a matter of cross-examination and whether or not this witness is qualified to know what exactly is allowed under the industrial legislation by unregistered organisations or registered organisations.

PN608

What he's given evidence about is what has been a company policy about seeking permission before putting things up. He clearly said that he hasn't discriminated against anyone, or any organisation.

*** GLENN MURRAY XXN MR FERGUSON

PN609

THE DEPUTY PRESIDENT: Mr Ferguson, you just need to frame the question, so it's a question, not asking the witness to give a legal opinion. Ask him something that's within his scope of knowledge. Because he can't give a legal opinion about the Act.

PN610

MR FERGUSON: The scope of knowledge was his understanding of the company policy. He was asked to identify the policy. We find that he had no understanding of the policy, but he had to make a phone call to Mr Thompson who then made up a policy. There was no policy document. I've never heard of a - - -

PN611

THE DEPUTY PRESIDENT: Now you're moving to evidence or submissions?

PN612

MR FERGUSON: No, I'm engaging you.

PN613

THE DEPUTY PRESIDENT: The question needs to be put to the witness in a way which is not asking to give legal advice. If you reframe the question to the witness, which doesn't ask him to give a legal opinion, then the question is permissible. If you just reframe the question in a way which doesn't ask him to give a legal opinion, which he's not competent to do.

PN614

MR FERGUSON: What about the Australia Day notice? Do you have trouble with Australia Day?‑‑‑No, I do not.

PN615

Did you ring specifically Mr Thompson to ask him if it was required that you pull down an Australia Day notice?‑‑‑No, I was just advised to take down any unauthorised notices that were displayed. I didn't look at them; I just took down the notices that were displayed.

PN616

So, an Australia Day notice is an unauthorised notice and not welcome in your workplace?‑‑‑No, they just didn't seek approval to post any such notice prior to doing so.

PN617

I've got no further questions.

PN618

THE DEPUTY PRESIDENT: Thank you. Is there anything in re-examination?

RE-EXAMINATION BY MR KENT [8.10 PM]

PN619

MR KENT: Yes, just a quick re-examination, Deputy President.

*** GLENN MURRAY RXN MR KENT

PN620

Mr Murray, Mr Ferguson has asked you questions about the Australia Day notice that was displayed on Mr Parker's vehicle. Do you recall what was in that Australia Day notice?‑‑‑No, I do not. All I remember is the title on it that said Australia Day.

PN621

Deputy President, can I hand up a copy of that notice to refresh his memory? It is in evidence; it's the last page of exhibit NG5 to the statutory declaration – or the annexure NG5 to the statutory declaration of Mr Murray, himself

PN622

THE DEPUTY PRESIDENT: Yes. Does he not have a copy of his statement there with the attachment? Do you have a copy of your statement there?‑‑‑Yes I do.

PN623

MR KENT: Does it have your annexures, Glen?

PN624

THE DEPUTY PRESIDENT: Do you have the annexures there?‑‑‑Yes I do.

PN625

MR KENT: Can you go to the last page of annexure 5. It's entitled Australia Day. Can you recall Mr Ferguson questioning you about the Australia Day notice?‑‑‑Yes I do.

PN626

Can you remember Mr Ferguson examining you about whether you had a problem with Australia Day, or Australia Day notices?‑‑‑Yes.

PN627

Could you, for the benefit of the recording to the audience, just read that Australia Day notice please.

PN628

THE DEPUTY PRESIDENT: You don't have to read it onto transcript.

PN629

MR KENT: For the rest of people giving evidence.

PN630

THE DEPUTY PRESIDENT: You can put that document in front of them, if they give evidence. We'll not start reading exhibits onto transcripts or we'll be here till tomorrow morning.

PN631

MR KENT: Thank you, Deputy President.

*** GLENN MURRAY RXN MR KENT

PN632

THE DEPUTY PRESIDENT: Is there a question you wanted to ask in relation to the exhibit? Any more questions in relation to that particular exhibit?

PN633

MR KENT: I'll save it for submissions. No further re-examination. That's the evidence of this witness.

PN634

THE DEPUTY PRESIDENT: Thank you. You're released from your oath and you can go back and sit in the court room.

PN635

WITNESS: Thank you.

<THE WITNESS WITHDREW [8.12 PM]

PN636

MR KENT: The respondent calls James Barlow.

<JAMES BARLOW, AFFIRMED [8.13 PM]

EXAMINATION-IN-CHIEF BY MR KENT [8.13 PM]

PN637

MR KENT: Can you state your full name please?‑‑‑James Barlow.

PN638

Your occupation?‑‑‑General Manager, Support Services.

PN639

You're an employee of the respondent?‑‑‑Yes.

PN640

Mr Barlow, have you sworn a statutory declaration in this matter dated 7 March 2014?‑‑‑I have.

PN641

Do you state that that is a true and accurate record of the matters set out in that statutory declaration?‑‑‑It is.

PN642

I tender that statement.

PN643

THE DEPUTY PRESIDENT: I'm going to mark that statement R3.

EXHIBIT #R3 STATUTORY DECLARATION OF JAMES BARLOW DATED 07/03/2014

*** JAMES BARLOW XN MR KENT

PN644

MR KENT: That's the evidence in chief for this witness.

PN645

THE DEPUTY PRESIDENT: Mr Ferguson, did you want to cross-examine the witness?

PN646

MR FERGUSON: Sorry, didn't have me loop on, but we're trying to find a copy of the statement in this pile. We haven't found it at this stage.

PN647

Deputy President, we've located it.

PN648

THE DEPUTY PRESIDENT: Excellent. Is there any cross-examination you wish to undertake?

PN649

MR FERGUSON: I just need to read it, if I can have a moment?

PN650

MR KENT: Deputy President, can I ask the indulgence of removing my coat?

PN651

THE DEPUTY PRESIDENT: Certainly because it's hot. Could you see if we could get the aircon back on. It's not working?

CROSS-EXAMINATION BY MR FERGUSON [8.17 PM]

PN652

MR FERGUSON: Mr Barlow, in point 4 of your statutory declaration, you say I asked Mr Fawkes to stop distributing material without management approval and to leave the depot. Are you aware of a policy document within Swan's procedures and policies that relates to seeking permission for the distribution of material prior to its being distributed?‑‑‑There's no policy written. However, Mr Thompson gave Mr Fawkes a directive via email earlier in the day.

PN653

It related not to a question of policy, but a question of a directive, in your words, that the General Manager, Mr Thompson has given to you?‑‑‑Not to me, to Mr Fawkes.

PN654

To Mr Fawkes?‑‑‑That's correct.

PN655

You were enforcing that directive?‑‑‑Yes.

*** JAMES BARLOW XXN MR FERGUSON

PN656

But as far as you're aware, it has never been part of policy – recorded written policy or procedures. Would it be reasonable to say that employees had an understanding that there was a policy and procedure that they needed to comply with before placing any materials on their vehicles, their person, relating to any matter?‑‑‑It is my understanding that they would have a knowledge of it.

PN657

They would have knowledge of it. And how would they have knowledge of that?‑‑‑They would be part of the directives. So, if they were given a directive to not to do something, they wouldn't do it.

PN658

Let me just take this a bit further. If you were giving a directive to Mr Fawkes, which was – and that directive was given to you by Mr Thompson but there's no basis of a written policy within the company, how would other people, other than Mr Fawkes become aware of that policy that Mr Thompson had directed you to employ into the work place?‑‑‑He didn't direct me to enforce a policy, he asked me to enforce a directive that he gave to Mr Fawkes.

PN659

That related to not comply with first asking permission. That's what it relates to, doesn't it?‑‑‑Yes.

PN660

But as far as you're aware, there is no written policy?‑‑‑There is no written policy.

PN661

Thank you, on that point. I'll just be a moment, Deputy President.

PN662

In point 11, you say that you asked Mr Fawkes and you instructed him to leave within five minutes?‑‑‑That's correct.

PN663

Did Mr Fawkes, follow that instruction?‑‑‑He did.

PN664

No further questions.

PN665

THE DEPUTY PRESIDENT: Thank you.

PN666

MR KENT: No re-examination.

PN667

THE DEPUTY PRESIDENT: You're released from the witness stand. You can return to sit in the court room if you like, now.

<THE WITNESS WITHDREW [8.22 PM]

PN668

MR KENT: The respondent calls Steve Henderson.

*** JAMES BARLOW XXN MR FERGUSON

<STEVEN HENDERSON, AFFIRMED [8.23 PM]

EXAMINATION-IN-CHIEF BY MR KENT [8.23 PM]

PN669

MR KENT: Can you state your name for the Commission please?‑‑‑Steven Henderson.

PN670

Your occupation?‑‑‑Area Manager.

PN671

You're employed by the respondent?‑‑‑I am.

PN672

Mr Henderson, have you prepared a statutory declaration dated 7 March for these proceedings?‑‑‑I have, yes.

PN673

Is the content of that statutory declaration a true and accurate recollection of the events?‑‑‑It is, yes.

PN674

A true and accurate recollection of the events contained or referred to in the stat dec?‑‑‑Yes.

PN675

I tender that statutory declaration, Deputy President.

PN676

THE DEPUTY PRESIDENT: I'll mark the statutory declaration of Steven Henderson as R4.

EXHIBIT #R4 STATUTORY DECLARATION OF STEVEN HENDERSON DATED 07/03/2017

PN677

MR KENT: That's the evidence in chief of this witness.

PN678

THE DEPUTY PRESIDENT: Thank you.

CROSS-EXAMINATION BY MR FERGUSON [8.25 PM]

PN679

MR FERGUSON: Mr Henderson.

*** STEVEN HENDERSON XN MR KENT

*** STEVEN HENDERSON XXN MR FERGUSON

PN680

THE DEPUTY PRESIDENT: Sorry, just a minute Mr Ferguson.

PN681

MR FERGUSON: Mr Henderson, you're an area manager?‑‑‑That's correct.

PN682

Are you aware of any company policy, written policy that requests or directs employees to seek permission in relationship to any materials that they may wish to place on their person or on their vehicles or distribute to other employees? Are you aware of a written policy of the company that provides that advice to employees?‑‑‑As a written direction?

PN683

No, I'm just asking you is there a written policy, that the company hands out to people on employment or throughout their employment that says dear employee, before you can distribute a notice about the local girl guides or Australia day or Transport Workers Union or Transport Edge, you have to first seek permission from your depot manager or area manager or general manager. Is there a policy document that's provided to employees to provide them with that advice?‑‑‑No.

PN684

Are you aware of any employees that drive your vehicles into your depots and park them that may have various stickers. Say the Dockers or the Eagles displayed upon their windscreens or rear mirrors or other such signs?‑‑‑Can't say I've paid much attention to that, to tell you the truth.

PN685

Would you take it that there are other forms of signs on people's vehicles?‑‑‑I would imagine there is, yes.

PN686

Then, can you answer me why one sort of sticker or poster or material on another vehicle gets the attention where others do not?‑‑‑I would say that one would be more inflammatory than the other.

PN687

Inflammatory to put up Australia Day notice is inflammatory?‑‑‑I wouldn't say that was an inflammatory notice.

PN688

All right. Would you say a notice by an industrial association promoting its services that it provides to potential members, is that a document that falls out of the range of as to what's being suitable? Or is that seen as offensive?‑‑‑It would depend on the content of that notice.

PN689

Did you at any stage see the content of the notices related to Mr Fawkes and what he was handing out?‑‑‑No.

PN690

Did Mr Barlow; was he aware of the content of those notices?‑‑‑

*** STEVEN HENDERSON XXN MR FERGUSON

PN691

MR KENT: With respect.

PN692

MR FERGUSON: Did Mr Murray?

PN693

THE DEPUTY PRESIDENT: Mr Kent, did you want to pursue that?

PN694

MR KENT: This witness is unable to give an idea of what Mr Barlow knows and what Mr Murray knows. He can give an idea of what he knows. Anything else he says is going to be hearsay in relation to Mr Barlow and Mr Murray.

PN695

MR FERGUSON: Well, you were present throughout the process of the discipline of Mr Fawkes?‑‑‑I was, yes.

PN696

In Mr Murray's office?‑‑‑Correct.

PN697

Did Mr Murray express a view to you about the material that Mr Fawkes had been handing out as inappropriate?‑‑‑Mr Murray told me that they were notices that a directive had been given to not put them out.

PN698

Are you aware of any comment by the management that there was something offensive contained within the notices that Mr Fawkes was handing out?‑‑‑No.

PN699

No further questions.

PN700

THE DEPUTY PRESIDENT: Thank you. Mr Kent, did you have anything in re-examination? I'm presuming Mr Dzieciol you'll jump up to your feet if you'd like the opportunity to speak at any time.

PN701

MR KENT: If you could just give me a moment please.

RE-EXAMINATION BY MR KENT [8.30 PM]

PN702

MR KENT: Mr Henderson, it's your understanding that in the disciplinary, that Mr Murray was disciplining Mr Fawkes for his failure to follow a directive that Mr Fawkes had been given by Mr Thompson?‑‑‑That's my understanding yes.

*** STEVEN HENDERSON RXN MR KENT

PN703

In response to Mr Ferguson's question, you don't have any idea of what was on the material that Mr Fawkes was handing out?‑‑‑No, I was only brought in to deal with the disciplinary.

PN704

Which related to not following the directive?‑‑‑Not following the directive given to him, yes.

PN705

No further re-examination.

PN706

THE DEPUTY PRESIDENT: Thank you.

PN707

MR KENT: That's the evidence of this witness. He should be excused.

PN708

THE DEPUTY PRESIDENT: Mr Henderson, you are excused. You can sit in the court room now.

<THE WITNESS WITHDREW [8.31 PM]

PN709

MR KENT: The next witness the respondent calls Brian Thompson.

<BRIAN JAMES THOMPSON, AFFIRMED [8.32 PM]

EXAMINATION-IN-CHIEF BY MR KENT [8.32 PM]

PN710

MR KENT: Can you state your name please?‑‑‑Brian Thompson.

PN711

Your occupation?‑‑‑I'm the General Manager for the three respondent companies.

PN712

For Swan Transit Services?‑‑‑For the one respondent company, Swan Transit Services.

PN713

Mr Thompson, have you prepared a statutory declaration in relation to these proceedings and an indexed and paginated booklet of exhibits running to 679 pages?‑‑‑That is correct.

PN714

To the best of your knowledge, are the contents of that statutory declaration true and correct?‑‑‑It is correct, yes.

*** BRIAN JAMES THOMPSON XN MR KENT

PN715

I tender that statutory declaration and those annexures.

PN716

THE DEPUTY PRESIDENT: I previously marked them R1.

PN717

MR KENT: That's the evidence in chief for this witness.

CROSS-EXAMINATION BY MR FERGUSON [8.35 PM]

PN718

THE DEPUTY PRESIDENT: The transcript person in Melbourne is just deafened.

PN719

MR FERGUSON: Excuse me.

PN720

THE DEPUTY PRESIDENT: The transcript is recorded by people centrally in Melbourne, and they're listening to the sound as we go and I just said that they're probably now suffering loss because of the crash on the microphone. But they're very grateful for the extended hours of work that they've got.

PN721

MR FERGUSON: I take you to page 5, 6 January 2016. I was contacted by Glenn Murray and Jim Barlow that Mr John Fawkes was at the depot continuing to distribute and had not sought permission to do so. Mr Thompson, can you advise the Commission on the policy document that the company has provided to employees, that tells all employees that prior to distributing, displaying, any written materials that they must be authorised by the company?‑‑‑During the bargaining process, there was a need because of the nature of some of the notices that were being posted in their misleading nature - - -

PN722

MR FERGUSON: That's not the question I asked you. I asked you can you advise the Commission of any policy document that's been distributed to employees, that would give them an understanding that before they display or distribute materials, could be about the girl guides, could be about the Transport Workers' Union, could be about the local nunnery, for example. Where in your company's policy documents, is that message conveyed to employees?‑‑‑There is a social media policy which does instruct drivers not to post derogatory, I think, inflammatory, misleading.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN723

All right then. The information that Mr Fawkes was distributing, are you aware that it had derogatory content in it?‑‑‑We put it that the reason – I'm not aware of what Mr Fawkes was distributing on that day. We put in place, Mr Fawkes was given a verbal instruction, as were the negotiating committee at the time, that we would have the right to ask for any person who wanted to post material in our depots would seek the permission of the company.

PN724

That was it?‑‑‑On several occasions following that, Mr Fawkes did not approach me to display material or to post material. He continued to do so, and despite my formal written request, he did ask for it in writing. I said consider this your formal request to cease doing so. He failed to follow my written instruction, so on that day, when, as its written there in my statutory declaration, when it became evident that he was not following my written instruction in accordance with the 2012 enterprise agreement, where it states that an employee must follow the lawful instructions of management, or words to that effect.

PN725

Let's take it up on the lawful instruction then. The lawful instruction, because the Fair Work Act authorises certain industrial activities, the right to belong to an industrial organisation, the right to belong to industrial associations. It gives employees the right to promote and distribute materials that promote an association. That is the law. It is lawful industrial activity. Your directive was not a lawful directive because it was contrary to what the statute actually says is a lawful activity. Do you now concede that you had no lawful directive to give to Mr Fawkes?‑‑‑No, I don't see that.

PN726

You believe that you can give a directive that's contrary to the Fair Work Act on that Fair Work Act that says it's every Australian citizen's right to belong or to not belong to any association or registered organisation. Do you say that the Fair Work Act does not say that an employee has the right to promote the interest and to distribute materials that promote the interests of an industrial association?‑‑‑I gave a lawful instruction, is my belief.

PN727

I'll put it to you, that your directive was never a lawful instruction?‑‑‑I don't believe that.

PN728

Your evidence is, as I understand it, there was no written policy document produced or distributed prior to you giving your unlawful directive to Mr Fawkes?‑‑‑There is a social media policy.

PN729

Media policy?

PN730

MR KENT: With respect, Deputy President, the suggestion from my friend of whether something is lawful, or unlawful, is not necessarily a matter for him to make. It's a question of law, for you to determine, and an improper way to put a question I would have thought.

PN731

THE DEPUTY PRESIDENT: Yes, I was a bit surprised about putting propositions without questions.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN732

MR FERGUSON: It's a preamble to the question. If you're going to say that I gave a lawful direction and then you're also going to say I have no policy, then we need to get an understanding as to where the lawful direction that Mr Thompson thinks he held at law.

PN733

THE DEPUTY PRESIDENT: I'm just interested Mr Ferguson, because you objected to Mr Kent putting propositions to the witness without questions, and you've just now asked a series of at least four propositions in a row without putting any question to the witness. Given that I counselled Mr Kent about the requirement to put actual questions to the witness, can you put a question to the witness at the end of each of your proposals, so that the witness can answer the question.

PN734

Some of the proposals you are putting are matter which go to – matters which I will make determinations about and Mr - - -

PN735

MR FERGUSON: Okay, Mr Thompson, do you have an understanding of the industrial relations laws that relate to freedom of association?‑‑‑Not in great detail, no.

PN736

Do you have any understanding that employees do have a right to belong to not belong to any particular association they may or may not wish to be party to?‑‑‑I know there are laws around that. Yes, I do know that.

PN737

You're the General Manager of Swan Transit?‑‑‑that is correct.

PN738

You have lots of dealings with employees related to industrial relations matters?‑‑‑That is why we employ and engage experts to advise us on those matters.

PN739

Mr Thompson, prior to you giving that directive to Mr Murray, to have Mr Fawkes desist distributing materials related to an industrial association, what advice did you receive from your general counsel in relation to that?‑‑‑On that particular day, I was following - - -

PN740

MR KENT: With respect, Deputy President, what information or advice a legal practitioner may give to their client, is a subject of legal professional privilege and not the subject of disclosure and cannot be the subject of disclosure in cross-examination such as this.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN741

THE DEPUTY PRESIDENT: Mr Ferguson, are you familiar with the concept of legal professional privilege?

PN742

MR FERGUSON: To some degree.

PN743

THE DEPUTY PRESIDENT: Do you need me to explain it to you, or are you able to reframe the question you're asking?

PN744

MR FERGUSON: No, I'm just following from Mr Thompson's response to the question and his answer was that he sought his advice from someone outside. They don't want to reveal what that advice is, I'm quite happy. But what it does demonstrate that Mr Thompson has no understanding of industrial laws that relate to his workplace.

PN745

MR KENT: Well, once again, Deputy President.

PN746

THE DEPUTY PRESIDENT: It's okay Mr Kent. That's a matter for submissions, not a question to put to the witness.

PN747

MR FERGUSON: No, I'm talking and engaging with yourself. I'm not putting that question to him.

PN748

THE DEPUTY PRESIDENT: I think it's helpful, not to make emotive or derogatory comments about a witness'- particularly while they're in the witness box.

PN749

MR FERGUSON: I didn't think I made a derogatory comment towards the witness, in the witness box. Can madam direct me to the derogatory comment?

PN750

THE DEPUTY PRESIDENT: What I suggest is that you deal with what you're doing at the moment, which is cross examination and that you save submissions for your closing, and if there's any evidence you want to lead, that you lead that from the witness box under oath and not from the Bar table. I have pointed out on a number of occasions so far this evening, that evidence can't be given from the Bar table and it's not admitted as evidence if it's given from the Bar table. Any evidence needs to be given under oath in the witness box. So anything that you are saying at the Bar table is not evidence before me. If there's evidence that you need to give you'll need to put yourself in the witness box and give that evidence.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN751

MR FERGUSON: I don't think I was giving evidence. I was trying to follow lead which you've closed down and I understand the reasons for that. I'll - - -

PN752

THE DEPUTY PRESIDENT: You understand the concept of legal professional privilege?

PN753

MR FERGUSON: I'll proceed.

PN754

THE DEPUTY PRESIDENT: Okay. You don't need me to explain it to you?

PN755

MR FERGUSON: No. I don't need any more explanation, thank you.

PN756

THE DEPUTY PRESIDENT: Okay.

PN757

MR FERGUSON: I'll take you 20/02/2017 where you say:

PN758

The respondent receives an updated single bargaining position by email to me less than one hour prior to the meeting scheduled 10.30 am.

PN759

WITNESS: Which is is – what page is this?

PN760

MR FERGUSON: It's page 7, sir?‑‑‑The bottom - - -

PN761

The bottom page. Do you – in relation to that, the document that, the document that we responded to, to you in the less than an hour meeting, was that the updated position that the single bargaining unit was providing to the company prior to the meeting so that the company at least had an hour to look at the updated position of the single bargaining unit that was saying you could agree to, and what other matters it still wanted to negotiate? Is that the email that you received less than one hour prior to the meeting?‑‑‑It was an updated singe bargaining unit position.

PN762

Yes. And that was in regards to – that was responding to correspondence that you forwarded to myself on the 15th?‑‑‑I don't know if it was in response to that.

PN763

Yes?‑‑‑I don't think it addressed the - - -

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN764

I put it to you that we – single bargaining had received your response on the 15th and that the email on the 20th was our response to your correspondence of the 15th. Would that be right?

PN765

THE DEPUTY PRESIDENT: Sorry, Mr Ferguson – Mr Ferguson, sorry, just one minute. Just one moment. Okay, Mr Ferguson. I was just conscious that the security guard has been standing for an uninterrupted period.

PN766

MR FERGUSON: What - - -

PN767

THE DEPUTY PRESIDENT: I was just conscious that the security guard has been standing for a long period of time and I just wanted to give him the opportunity to sit down if he wanted to. You can proceed with your cross-examination.

PN768

MR FERGUSON: Mr Thompson, did you ever look at any of the materials that Mr Fawkes was displaying? Prior to you giving your directive that he cease distributing, did you have an occasion to view that material?‑‑‑There were a large number of anonymous posters or documents posted at Beckenham Depot over a large period of time.

PN769

And were they documents related to what Mr Fawkes had handed out, or put up?‑‑‑I believe that Mr Fawkes was the author and that's why the – but not necessarily, but at – that's why at the negotiating meeting we requested that any documents that wish to be displayed, that the company be involved in that process.

PN770

But did you view any of the documents that you later instructed Mr Murray and Mr Barlow to stop Mr Fawkes distributing?‑‑‑I - - -

PN771

Did you know what the content of those documents were?‑‑‑The reason that I asked Mr Murray and Mr Barlow to talk to Mr Fawkes was because he was not obeying my instructions, my written instructions.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN772

Yes, and your instruction was to tell him to decease[sic] handing out information. We know that information was related to Transport Edge because that's the evidence being gathered around and that's come from the witness box, and in the absence of no policy how were you in a position to make a judgment on the suitability or non-suitability of what was being distributed or handed out?‑‑‑The instruction to John was quite clear, Mr Fawkes, was quite clear that if he wished to display or hand out material then he needed to seek the company's permission. It was very clear. So he clearly disobeyed that written instruction. But what he was handing out was effectively irrelevant because he was contravening my written instruction.

PN773

All right, but that isn't – why did you decide then that it was necessary to give an instruction where there was no policy in existence or had been in existence that employees would have known? What were the motivators that made you get on the phone and give instructions for Mr Fawkes to stop issuing some of the materials that you had no knowledge of what they looked like or what he was even presenting?‑‑‑I was contacted by Mr Murray or Mr Barlow, both, and they advised me that he was contravening my written instruction which I had cc'd Glen Murry in on that day.

PN774

Well, the question is, why did you send that to Mr Fawkes when there was no policy in place? What was the catalyst that made you pick up the phone to give that instruction?‑‑‑What's the question, sorry?

PN775

The question was, in the absence of any written policy and in the absence of you viewing any materials that you could physically see yourself, what was the motivation for you to pick up a phone and then give a directive to two of your managers for Mr Fawkes to decease giving out a pamphlet of which you had no knowledge of what the content was?‑‑‑Well, firstly, I received the phone call, I didn't pick up the phone.

PN776

Okay. When you received the phone call what were you told on the phone call?‑‑‑I was told that Mr Fawkes wasn't obeying my written instruction.

PN777

No, no, but let's – no, let's go back for – simply answer the question. Before you pick up the phone or type the email to Mr Fawkes, what – in the absence of any written company policy, what was your motivation to find it necessary, one, to compose and email, and the follow up that by a series of phone calls to your managers in relationship to a document that Mr Fawkes was distributing that you say you had no understanding of what its content was about?‑‑‑The directive came well before Transport Edge came on the scene. So the directives occurred - - -

PN778

That's not -that is not the question. The question is, in the absence of company policy and not viewing any document – it could have been a blank piece of paper for all you knew – what was the motivator that said to you, I now have to act as a manager and I have to say, "desist, this is my directive"? What was the motivator for that? If there's no policy that you had to refer to that you could say, hello, he's breaking the rules, I've got to enforce this - - -

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN779

MR KENT: Deputy President, with respect, he's asked the question. Before Mr Thompson can answer - - -

PN780

THE DEPUTY PRESIDENT: He's asking another question.

PN781

MR KENT: He's asked another question. Before Mr Thompson can answer, he'll ask another question. Can we please pose a question and allow the witness the opportunity of answering it?

PN782

MR FERGUSON: Well, please, as my friend would like to do with Mr Parker and Mr Fawkes, he, in cross-examination of Mr Fawkes, must have put the same question at least five or six times around the 10 January. He was given leave to go that, and that was to help clarify to Mr Fawkes what the intention of the question was. I have only tried to clarify for Mr Thompson so he can answer the question that in the absence of a company policy, that as general manager he would have to have control over and watch over, and in the absence of seeing a document that he has no knowledge of, that he were to give a directive to his staff. What was the motivation for that? Did you receive a complaint from any of your managers?‑‑‑I didn't receive any - - -

PN783

THE DEPUTY PRESIDENT: Okay, do you want to know – you've got two questions there.

PN784

MR FERGUSON: The question is - - -

PN785

THE DEPUTY PRESIDENT: It the motivation or the complaint.

PN786

MR FERGUSON: The question was, "did you receive a complaint from your managers?"

PN787

THE DEPUTY PRESIDENT: Okay?‑‑‑No.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN788

MR FERGUSON: Then I ask you, sitting in your office, where did the motivation come for you to send that directive out to Mr Fawkes? Obviously you wanted him to stop doing something but you say you don't know what it was, other than he was distributing something, and you know there is no policy. So how did you form the view that you had to give that directive and send out an email to Mr Fawkes to stop and desist?‑‑‑I'd actually like to clarify, in terms of no complaints from other managers, over an extended period of time, and as I said before you interrupted me, before Transport Edge was even formed and on the scene, there were large numbers of notices posted at our depots which I believe and we believe, and I had complaints from managers and other bargaining representatives, that they were misleading, derogatory at times, and during, I think the first vote, some of the notices and including some from the TWU, became quite personal towards myself.

PN789

Yes, well you were - - -?‑‑‑Hang – hang on, you asked my question, Glenn, Mr Ferguson.

PN790

Well - - -?‑‑‑As a result of that process – it's as a result of those notices being posted and continued to have been posted over an extended period, on social media, at – handed out at bus stations and train stations, the company took the view that we would take more control over the notices and the information that was being posted and being handed out in our depots. So we took that view and it was conveyed to the negotiating committee of which you've got four representatives, and who MR Fawkes was a party to, and as a result – and during that meeting we advised the committee if they wished to continue to post notices we would like to be involved and we would authorised notices. So that's where the motivation came. It had nothing to do with Transport Edge. It was well before Transport Edge came onto the scene, and on the – whatever date it was in January I wasn't at the depot so, no, I don't know what Mr Fawkes was posting but I do know that he was – he was contravening my written, lawful instruction and that is in contravention of the 2012 enterprise agreement of which he works under.

PN791

Well, that all rests on what is a lawful direction and we'll let Deputy President work that one out. But you made a decision to give a directive in the absence of policy for Mr Fawkes to stop distributing some of the materials that you didn't know what the content was, but you refer to it as Transport Edge. The point that I've been making and what other people have been trying to make, and it will come out and is in the submissions, that there is detailed evidence throughout the minutes which are put into my submissions already, that demonstrates a process of pulling down not only individual notices from all employees but TWU notices and other - - -

PN792

MR KENT: Once again, Deputy President, is there a question in this - - -

PN793

MR FERGUSON: Yes.

PN794

MR KENT: Or is it just once again giving evidence from the table?

PN795

MR FERGUSON: No, it – my friend, you wanted to lead in and Deputy President as I understand, provided I ask a question at the end of it, that's reasonable.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN796

THE DEPUTY PRESIDENT: Okay - - -

PN797

MR FERGUSON: Now, that's what you were afforded, sir.

PN798

THE DEPUTY PRESIDENT: Mr Ferguson, there's no point entering into debates with Mr Kent because Mr Kent is not in charge of this courtroom.

PN799

MR FERGUSON: Well, I'll bring those matters to your attention.

PN800

THE DEPUTY PRESIDENT: I'll make the rulings in relation to what is the conduct of the proceedings. What I would suggest is that if you want the witness to give you an answer, that perhaps you make your questions a little more concise because I'm struggling to get to what the question is. At the moment, you're making very, very, very long questions which have multiple – very, very long statements with multiple questions in them and then the witness has the opportunity to pick which one he wants to answer.

PN801

MR FERGUSON: Okay.

PN802

THE DEPUTY PRESIDENT: So it's probably best to be more concise with your questions.

PN803

MR FERGUSON: I'll put it to you, Mr Thompson, that any material contrary to the company position on enterprise bargaining that would suggest that people should vote against it or contains a different view to your company, under your instruction you've directed they be ripped down and pulled down and thrown in rubbish bins?‑‑‑That's not correct.

PN804

Okay, that's not - - -

PN805

THE DEPUTY PRESIDENT: You need to ask a question at the end.

PN806

MR FERGUSON: I did ask the question and he just answered it.

PN807

THE DEPUTY PRESIDENT: Okay. I think you put a proposition. I think the question is, is that true or untrue. Otherwise you're just doing what you accused Mr Kent of, is making propositions, not asking questions.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN808

MR FERGUSON: Well, I'm satisfied with the answer I got.

PN809

THE DEPUTY PRESIDENT: Okay, but you asked me not to allow Mr Kent to make propositions.

PN810

MR FERGUSON: I believe I asked a question, and he answered. I'm content – I'm content with the question.

PN811

THE DEPUTY PRESIDENT: I'm just trying to apply the same rules to you, Mr Ferguson, as you asked me to apply to Mr Kent. So would you like to ask the question again?

PN812

MR FERGUSON: The question to you, sir, is it your position that any document that does not agree with the company's position in regards to any element of a bargain, is pulled down and ripped down and taken out of circulation?‑‑‑If the request hasn't been made, yes.

PN813

So your position is that before employees can engage in lawful industrial activity by distributing materials in the workplace, they must seek your authority?‑‑‑Because of what happened, yes, that is the directive we gave to Mr Fawkes.

PN814

And your authority is not supported by any company policy?‑‑‑We have the social media policy but it was a directive that we – I believe is lawful.

PN815

Your directive, is that endorsed by the owners of the business in the absence of policy?‑‑‑The directors pay me to manage, yes, and they are aware of our position.

PN816

Mr Murray, in his evidence, said he was directed by you to tell him to pull down the notices of that – whatever Mr Fawkes was distributing on that day, but at the same time your evidence is that you don't know what he was distributing. How did that situation arise when you could give a directive to your – Mr Murray to tell him to ask an employee to decease[sic] something that you had no knowledge of? How did that situation occur? I'm just confused where the starting point is to all of this. Your evidence is that you received no complaint from any of your managers, but Mr Murray's evidence was he was directed by you, and I keep coming back to the central question and I'll put it to you again, in the absence of policy what was the catalyst for you to send that email and make those phone calls?‑‑‑I never made any phone calls.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN817

You must have?‑‑‑It wasn't - - -

PN818

Murray said, "I was directed by Thompson." That was is evidence?‑‑‑He contacted me though. He contacted me.

PN819

Yes?‑‑‑And I instructed Mr Murray.

PN820

THE DEPUTY PRESIDENT: Mr Ferguson, you can repeat - - -

PN821

MR FERGUSON: Sorry.

PN822

THE DEPUTY PRESIDENT: Asking the questions to the witness but each time he gives you the same answer, that really just gives greater weight to his evidence.

PN823

MR FERGUSON: I'm going to take you to the circumstances just prior to the first vote and ask you to go back in memory and you're on the plant and you're having a heated discussion with Mr John Fawkes in the presence of other employees.

PN824

MR KENT: Deputy President, once again, this is not evidence led to Mr Fawkes.

PN825

MR FERGUSON: I'm just asking for a recollection. Does he remember that stage? If he remembers that situation I can then ask the question.

PN826

MR KENT: You can only ask questions based on examination-in-chief or based in evidence led by Mr Fawkes. Now the same courtesy was asked in relation to another witness and Mr Ferguson was not allowed to continue with that line of questioning because it had not been put in examination-in-chief to Mr Fawkes and I was not given the opportunity to cross-examining Mr Fawkes in relation to it. Now Mr Ferguson is endeavouring to do the same thing again to Mr Thompson.

PN827

THE DEPUTY PRESIDENT: I think the difference though is, with respect, Mr Ken, is that you'll have the opportunity to re-examine.

PN828

MR FERGUSON: Do you recall the minutes of 23 June 2016?

PN829

MR KENT: Thank you, Deputy President.

PN830

WITNESS: Not off the top of my head, no. We've had 24 meetings, Mr Ferguson.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN831

MR FERGUSON: Do you recall at any stage, and this is after the vote, and I can read it – I'll read it from the minutes might assist you, this is the minutes of the meeting, Thursday 23 June 2016.

PN832

THE DEPUTY PRESIDENT: What document is this?

PN833

MR FERGUSON: This is the minutes of meeting and there's – they have been tabled – there's a whole pile of minutes of meetings that my friend has tabled.

PN834

THE DEPUTY PRESIDENT: Okay, can you just take me to them, what number page they are?

PN835

MR FERGUSON: If it assists the Deputy President, it is item 11, pages 185 to 200 in the index and paginated booklet to Mr Thompson's statutory declaration.

PN836

THE DEPUTY PRESIDENT: Thank you.

PN837

MR FERGUSON: And I'll take you – and it picks up on page 5 – we'll start on page 4 at 14. "Brian addressed the Beckenham incident with John Fawkes. He advised" – this is you – "He advised that he was aware there had been some text messages sent out to TWU members and there are a lot of rumours about it. Brian stated that it was an unfortunate incident between John and himself at the Beckenham depot and that the items – and that the terms of the circumstances – unfortunately management wasn't given the same privileges to meet the drivers and explain the agreement without interruption. Brian advised that this is the same reciprocal right they gave to TWU, bar in incident at one depot where the TWU didn't feel as they were getting uninterrupted access to management and were asked to leave the lunch room. Then we had Jason advised that that was not factual and asked Brian to correct himself, stating that the person who was" - - -

PN838

THE DEPUTY PRESIDENT: Mr Ferguson, I've indicated previously to the parties that I don't want to have exhibits read onto transcript because we'll be here all night. If you'd like to take the witness to that particular document he can have an opportunity to read it and then you can pose whatever questions that - - -

PN839

MR FERGUSON: Is there a copy that someone can provide him?

PN840

THE DEPUTY PRESIDENT: Well, you're putting the question to the witness so if you've got the document I'd suggest you have my Associate pass the - - -

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN841

MR FERGUSON: (Indistinct)

PN842

THE DEPUTY PRESIDENT: Okay, my Associate will pass it to him?‑‑‑Which page?

PN843

MR FERGUSON: It's page 5, the third paragraph down, "John stated" – we're just above that – "Brian acknowledged the unfortunate incident of Beckenham and acknowledged that it would have been handled better. Then John stated that when management" - - -

PN844

THE DEPUTY PRESIDENT: Okay, so what's the question?

PN845

MR FERGUSON: The question I'm putting to Mr Thompson, what was the unfortunate incident between you and Mr Fawkes? What was the unfortunate instance that you were reporting about the - - -?‑‑‑We held a series of information sessions on that day as we were required to do - - -

PN846

Yes?‑‑‑To our drivers to explain the agreement.

PN847

Right?‑‑‑And I was unable to do so because of the continued interjections of Mr Fawkes on that day.

PN848

So Mr Fawkes was present with you and you are jointly giving a presentation? You're giving the presentation. Did you ask questions within that process?‑‑‑I don't understand the question.

PN849

You were giving a presentation to drivers and in that presentation did John Fawkes start to ask you questions?‑‑‑I don't recall the exact details of that, Mr Ferguson, however I do remember that I was unable to speak for some time during that – when I was talking to drivers.

PN850

THE DEPUTY PRESIDENT: So, Mr Thompson - - -

PN851

MR FERGUSON: The minute reads - - -

PN852

THE DEPUTY PRESIDENT: Mr Ferguson, just one minute. Mr Thompson, the microphone is there, not to amplify your voice but so the transcript services can get your evidence on transcript?‑‑‑Okay.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN853

And they are very clever people but if you nod - - -?‑‑‑Okay.

PN854

They can't necessarily work out what it is you're trying to say, so you need to use words and not just motions when you answer questions.

PN855

MR FERGUSON: The minute says, "John stated that when management came down they advised John that he wasn't presenting the agreement properly and that as a result, a spirited debate erupted." That seems to indicate that it was Mr Fawkes who was addressing workers and the minute reads – gives the impression that someone from management came down and that person appears to be you, from the minutes. Were you the person that went down to see Mr Fawkes?‑‑‑On that day we had a management meeting, so when it refers to, "come down", my recollection is we had a management meeting and I came down from upstairs to continue our discussions and our explanation to drivers.

PN856

Yes?‑‑‑What you've got there is John's version and that doesn't necessary correspond with my version of that day. Obviously we differed on our opinion, otherwise we wouldn't have had the heated debate.

PN857

Well, there's a Jason that follows and he says that perhaps the details should not be addressed at the meeting but they should have been potentially said before Fair Work Australia, some of the minutes. Then you re-enter – "Brian re-entered and it was an unfortunate incident and there now needs to be some rules, moving forward for both sides." What actually occurred to Mr Fawkes?

PN858

THE DEPUTY PRESIDENT: Mr Ferguson, I just need to put on record that when you depart from the evidence that's already been tendered in cross-examination there's a difficulty for the opposing parties to deal with that in their examination – cross-examination or your witnesses and their examination of their witnesses. So I've given you – despite Mr Kent's objection I have given you a vast amount of leeway in relation to introducing materials which weren't put in contest in either your materials or put in contest in that evidence-in-chief of the witness so I just need to be conscious that there's some limitations on what you can ask and some significant limitations on what I can take into account, if the parties haven't been put on notice that these matters are in contest.

PN859

MR FERGUSON: Well, they have been put on notice because the matter is raised in the submissions. The submissions that have lodged. I think it's the submissions, it's in the points in the submissions that have already been lodged. So it has been raised. I just want to know - - -

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN860

MR KENT: Deputy President, with respect - - -

PN861

THE DEPUTY PRESIDENT: Mr Ferguson, if you'd like to sit while Mr Kent speaks.

PN862

MR KENT: Mr Ferguson has advised the Commission that he's an experienced practitioner in this jurisdiction, that he's practiced in it or appeared in it since 1990. On my calculations and I'm a great mathematician, that's 27 years. Evidence in - submissions do not amount to evidence, evidence is what is given by witnesses from the witness box or tendered in statements or other things. The fact that something's referred to in a submission is not of itself evidence and I restate my objection that I raised previously. Given Mr Ferguson's significant leniency and leeway in relation to his cross-examination, that we are now dealing with and have had extended questioning regarding a matter that was not raised in evidence in-chief by Mr Fawkes, upon which Mr Fawkes has not provided a version and upon which I was not afforded the opportunity of cross-examining him. So this is new evidence, not the subject of anything put previously and I believe it is improper - an improper line of questioning.

PN863

MR FERGUSON: Madam, we would see it that it's documented in their submissions at page 189. They've tendered it into their submissions, so I can't see where it's improper. It's part of your submissions, sir.

PN864

THE DEPUTY PRESIDENT: Sorry, at - sorry, just a moment, Mr Ferguson.

PN865

MR FERGUSON: Yes, madam.

PN866

THE DEPUTY PRESIDENT: Where did you tell me - take me to?

PN867

MR FERGUSON: 189, paginated page number and the minute starts on paginated page 185.

PN868

THE DEPUTY PRESIDENT: No, in the submissions you suggested to me. Where in their submissions are they?

PN869

MR FERGUSON: No, these are the submissions of - - -

PN870

MR KENT: It's the annexures to the statutory declaration of Mr Thompson that are being referred to.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN871

THE DEPUTY PRESIDENT: That's evidence not submissions.

PN872

MR FERGUSON: That's the point my friend was trying to make. They've introduced it into evidence and I am asking questions related to evidence they've produced and it's paginated at 189, so they've brought the document in. Mr Thompson - - -

PN873

THE DEPUTY PRESIDENT: I'll just attach appropriate weight to it, Mr Kent.

PN874

MR KENT: Thank you, Deputy President.

PN875

MR FERGUSON: Mr Thompson, did you walk Mr Fawkes off the premises that day?‑‑‑I can't recall whether I walked him off or someone else, I couldn't say.

PN876

Was he walked off the premises by someone in management?‑‑‑He was asked to leave the depot, yes.

PN877

Did someone accompany him out and walk him out the depot?‑‑‑I can't honestly tell you.

PN878

I put it to you, sir, that person was you that walked him out. Walked him out the gate, because he had a contrary view that he's expression - expressing to employees, you became outraged that employees might start to hear another side of the story and he was marched off the job. Now you can't recall it was you but you do recall that he was told to get out - off the premises, at a meeting that had been designed by management allow drivers to discuss freely with employees their views.

PN879

THE DEPUTY PRESIDENT: Mr Ferguson, I just ask you not to raise your voice when you're asking questions to the witness. Just in a calm - in a calm voice.

PN880

MR FERGUSON: Madam, I have a deaf problem. I have headphones on. It is very hard to judge the weight of my voice. I am well known as a loud mouth speaker around town and that comes about because of my hearing difficulty. I tend to speak louder because I don't hear other people, and I tend to speak that way and it's something the Deputy President will have to get used to with me, as we go forward overtime.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN881

THE DEPUTY PRESIDENT: Mr Ferguson, what I'm doing is telling you that you're speaking too loudly, so if you would adjust the pitch of your voice accordingly that would be helpful.

PN882

MR FERGUSON: I will try and calm - I'm just trying to give Deputy President some understanding of the hearing difficulties that I do have - - -

PN883

THE DEPUTY PRESIDENT: That's fine but I'm giving you notice that you are speaking loudly so you can adjust the pitch of your voice appropriately.

PN884

MR FERGUSON: I'm trying to madam.

PN885

THE DEPUTY PRESIDENT: Excellent, thank you.

PN886

MR FERGUSON: It's a constant complaint in my own family I will tell you. So is that - - -

PN887

THE DEPUTY PRESIDENT: Yes, and could you pose the question again.

PN888

MR FERGUSON: Is that right?

PN889

THE DEPUTY PRESIDENT: Yes.

PN890

MR FERGUSON: Mr Thompson, did you give any instruction to anyone to walk Mr Fawkes off the premises that day?‑‑‑I don't recall how Mr Fawkes left the premises.

PN891

But you know he was told to leave?‑‑‑I made the instruction I believe for Mr Fawkes to leave because I was unable to continue my discussions with or my explanation of the agreement to the drivers, which is a requirement as part of the ballot - or the ballot process.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN892

Well, the minute says John stated when management (indistinct) they asked John - they advised John - so someone in management advised John that he wasn't presenting the argument properly, and then from that point a spirited debate occurred. We put it to you that was between you and Fawkes at that stage. Do you remember having a spirited debate with Mr Fawkes after you'd come down to advise him that he wasn't presenting the agreement in the perspective that the company wanted it advised to employees?‑‑‑There was a discussion between myself and John. What you've got there is the way our minutes were structured are that they reflect what people said. So what you're looking at there is hopefully a fairly close approximation or the word for word of what John actually said. So was that my opinion? Not necessarily. Was it John's opinion? Yes.

PN893

But the bottom line of it, which you agree that Mr Fawkes was escorted or taken off the property because he was giving a contrary view to that of the management's?‑‑‑Mr Fawkes would not let me provide the information to the drivers.

PN894

That is why you removed Mr Fawkes?‑‑‑My recollection is Mr Fawkes had an annual leave day on that day. I'm not 100 per cent sure but my recollection was he had no requirement to be there. I can't 100 per cent recall though. However, we did disagree, you're exactly right, and as it says there it was an unfortunate incident and we put in place rules to make sure that we never had that sort of situation again. I think that's probably a good thing, we learn from our mistakes, on both sides.

PN895

Just give me a moment please, Deputy President?‑‑‑Maybe if I could just outline as well, on that day the recollection that one of the main reasons John and I ended up in a debate was over he was providing notices - he had a folder which was not for management eyes, was I think the wording on it, and contained within that folder was a notice outlining different pay rates around the company. No information around about the Swan Transit agreement. Totally information irrelevant to our negotiations.

PN896

Could I have a short adjournment, Deputy President? Some paperwork's been lost on this table.

PN897

THE DEPUTY PRESIDENT: I'll adjourn the matter until 25 to. Please just remind you all, if you leave you won't be able to get back in. So please just stay on this floor, don't leave this floor. There's some water fountains outside if you're suffering in the heat. Just a moment gentlemen, just before you race to the door, just wait. The magic words haven't happened yet. If you require any extra water, if there's not water out there, please let my Associate know and she will arrange for more water to be made available.

SHORT ADJOURNMENT [9.25 PM]

RESUMED [9.52 PM]

PN898

THE DEPUTY PRESIDENT: Mr Ferguson, you were in the middle of cross-examining Mr Thompson.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN899

MR FERGUSON: Yes, I'm going to pass up the minutes of the meeting on 25 October 2016, starting on paginated page 277, 279, 281 and if Madam Associate could pass those to Mr Thompson. I want you to go to page 2, Mr Thompson at point 9. It starts off with:

PN900

Agenda point 2(c) was explained for clarification to the committee by Gary as requested. Who then questioned how can opposing points be presented to drivers if they're taken down from the noticeboard. Brian advised the committee that there was nothing in place in the current agreement forbidding drivers putting up notices, however he's happy to work with the committee to publish some mutual factual notice. Brian summarised this point by informing the committee that any notice not approved or containing misinformation will be removed.

PN901

Those notices that have been removed, they were notices relating to the bargain and opposing views that employees may have had, including the TWU?‑‑‑Which notices are you referring to?

PN902

The notices that Mr Sturgess is referring to that have been pulled down from noticeboards?‑‑‑I'm not sure what notices were taken down. This is in terms of what the procedure will be moving forward.

PN903

But then you went on to say that there's nothing in the current agreement that allows drivers to put up notices. So you don't believe that workers have got a right to put up notices?‑‑‑There's nothing in the current agreement. Is that what - is that what the question is?

PN904

No, I'm asking you a simple question. Do you believe that employees have a right to put up notices related to the enterprise bargaining in the workplace for display?‑‑‑I have no issue in drivers putting up factual notices.

PN905

What if you disagree and say well I don't think that's quite factual. What's your position then?‑‑‑As long as they're factual. Obviously there's - well no, it shouldn't be a different opinion, they should be a factual notice. Like these minutes should be factual.

PN906

But do you take it that in human life that we have opposing views as humans, like for example we have the Australian Labour Party, we have the Liberal Party. Both could take views that they don't factually believe that one is stating the true position of any one point, but doesn't democracy allow for the free exchange of information and ideas in this country?

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN907

THE DEPUTY PRESIDENT: I'm not sure that he can give an opinion on democracy in this country.

PN908

MR FERGUSON: It's a relevant question.

PN909

THE DEPUTY PRESIDENT: Mr Kent.

PN910

MR KENT: Deputy President - - -

PN911

THE DEPUTY PRESIDENT: I'm sorry.

PN912

MR KENT: I know Mr Ferguson might consider it a valid question. I would like him to understand how in the context of the evidence in-chief led by Mr Thompson it's relevant to his evidence in-chief.

PN913

MR FERGUSON: Madam, the Fair Work Act is based on industrial democracy, and the right to freedom of association and the objects of the Act and they give power to that democracy, industrial democracy. It says you can belong or you don't have to belong. You have a right to distribute information.

PN914

THE DEPUTY PRESIDENT: So what you might do is put a question to the witness which says does provision - point to particular provisions of the Act but asking him to give an opinion on democracy in this country is irrelevant to the matters before me. All I'm concern about is whether there's been a basis on which I can make an order under the Act that you're seeking. In order to do so you're looking at whether there's been breaches of the good faith bargaining provisions and therefore the evidence you should be extracting from this witness is not about democracy in this country, or views about democracy per se, it's about whether there's been compliance with the good faith bargaining provisions of this Act.

PN915

Now this particular witness is not a lawyer and not purporting to be a lawyer, so he may not be able to give an opinion about the provisions of the Act, but what he can do is give evidence about why he's done things or hasn't done things. His view on democracy in this country, with the greatest respect to Mr Thompson is completely irrelevant and at this stage of the evening, I'm not particularly interested in anything other than what goes to the particular issues in dispute, which is the legislation which I'm operating under and the provisions of the Act on which you brought this particular application.

*** BRIAN JAMES THOMPSON XXN MR FERGUSON

PN916

MR FERGUSON: Did the company pull down notices that Mr Sturgess refers to on page - at point 9 on page 2?‑‑‑Yes, I guess so, yes.

PN917

Are you allowing notices to circulate in your workplace freely at the moment?‑‑‑As it outlines what we've put in place there, we put in a procedure and in terms of the request from Mr Fawkes, I'm yet to receive a request from Mr Fawkes.

PN918

I've no further questions.

PN919

THE DEPUTY PRESIDENT: Thank you. Mr Kent, re-examination?

RE-EXAMINATION BY MR KENT [9.59 PM]

PN920

MR KENT: I'll try and be brief, Deputy President.

PN921

THE DEPUTY PRESIDENT: I think that's wise because I haven't eaten for a long time and it starts to get ugly if I haven't eaten for a while.

PN922

MR KENT: Mr Thompson, Mr Fawkes asked you questions about the incident - sorry, Mr Ferguson asked you questions about the incident involving Mr Fawkes prior to the first vote. The circumstances referred to in the minutes, can you advise me or just confirm to me that you were at the Beckenham Depot that day?‑‑‑That's correct.

PN923

You were there to present the company's view on the proposed enterprise agreement to drivers?‑‑‑That's correct.

PN924

Is it true that you had afforded the TWU time in the depot to speak to drivers about the enterprise agreement?‑‑‑That is correct.

PN925

Is it true that you had afforded bargaining representatives in the enterprise bargaining paid time off work to allow them to consult with their other drivers regarding the enterprise agreement?‑‑‑That is correct.

PN926

Were you or management present when the TWU was speaking to the employees?‑‑‑I wasn't present, no.

*** BRIAN JAMES THOMPSON RXN MR KENT

PN927

Was any management present at the time when you allowed the TWU to meet with the employees?‑‑‑I don't believe so.

PN928

As far as you're aware, was any management present when the drivers' reps met with the drivers?‑‑‑I don't believe so.

PN929

Did you or any member of the company bargaining team interject or interrupt the TWU when they were discussing the enterprise agreement with the employees?‑‑‑Not that I'm aware of.

PN930

Did you or any other member of management interrupt the other bargaining representatives during their paid time off work to speak to drivers regarding the agreement?‑‑‑Not that I'm aware of, no.

PN931

Did Mr Fawkes interject and interrupt you when you were seeking to speak to drivers to put the company's version or view of the enterprise agreement to them?‑‑‑Repeatedly.

PN932

Was it the case that you were unable to put the company's version of events to drivers because of Mr Fawkes' repeated interruption?‑‑‑Yes, correct.

PN933

Was it for this reason that you requested Mr Fawkes to leave the depot?‑‑‑That is correct.

PN934

Do you recall Mr Ferguson asking you questions about the company policy regarding the posting of materials or the handing out of materials in company depots?‑‑‑Yes.

PN935

Do you recall Mr Ferguson asking you what written policy you were relying on?‑‑‑That's correct, yes.

PN936

I think your answer was that there wasn't a written policy, that it was a directive?‑‑‑That's correct.

PN937

It was a directive that arose as a result of activities during the course of enterprise bargaining?‑‑‑That is correct. I did mention the social media policy.

PN938

MR FERGUSON: Objection. He was leading the witness.

*** BRIAN JAMES THOMPSON RXN MR KENT

PN939

THE DEPUTY PRESIDENT: Sorry, just a moment. Mr Ferguson, just one at a time. One stands up, one sits down. All right, what is your objection?

PN940

MR FERGUSON: My friend was leading to the conclusion - to the answer he wanted to receive. It was a leading question. He led him to the conclusion.

PN941

THE DEPUTY PRESIDENT: There's been a few of those today. Mr Kent, could you please reframe the question.

PN942

MR KENT: If I can remember it, Deputy President.

PN943

Your evidence has been that the directive was issued as a result of actions by persons known or unknown during the course of the enterprise negotiations and discussions; is that correct?‑‑‑That is correct.

PN944

As a result of these past actions by persons known or unknown, you then spoke about the new practice or procedure in the minutes?‑‑‑That is correct. I think the minutes are quite clear in the outcome of what was said.

PN945

THE DEPUTY PRESIDENT: Sorry, Mr Ferguson?

PN946

MR FERGUSON: Again my friend was leading him to the answer.

PN947

THE DEPUTY PRESIDENT: All right, I have tolerated a vast amount of - - -

PN948

MR FERGUSON: He said, "Then you said." He led him straight there.

PN949

THE DEPUTY PRESIDENT: I have tolerated a vast amount of leeway in relation to the rules of evidence because, as you pointed out, you're not counsel. I have tolerated the questions that you have asked. I will ask Mr Kent to try and reframe the question slightly differently so that the witness - - -

PN950

MR KENT: Thank you, Deputy President.

*** BRIAN JAMES THOMPSON RXN MR KENT

PN951

Why did you find it necessary to raise the issue or address the issue of notices in the enterprise bargaining meeting?‑‑‑It was a result of over a period of time notices being posted. They were quite personal, there was misinformation, I believe there was even deliberate lies.

PN952

What was your purpose for suggesting the adoption of a new procedure regarding the erection of notices?‑‑‑To try and create a - I guess we go down to the interest based bargaining, what we've spoken about today, to try and get notices across the line which are accurate.

PN953

The evidence is that you gave a written direction to Mr Fawkes; is that correct?‑‑‑That is correct.

PN954

Your evidence is that you sent him an email on 18 December 2016?‑‑‑That is correct.

PN955

Directing him to seek permission - - -?‑‑‑That is correct. That was, I think - - -

PN956

- - - before erecting notices or distributing material?‑‑‑That is correct. I think it was to remind him of what we basically verbally had advised in the past.

PN957

As general manager, are the only decisions you make decisions that are the result of written policies distributed by the company?‑‑‑Not every element of our day to day can be covered by a policy.

PN958

As a manager, do you often make decisions that may not be the subject of a written company policy?‑‑‑Daily.

PN959

I have no further re-examination.

PN960

THE DEPUTY PRESIDENT: Thank you.

PN961

MR KENT: That is the evidence of the respondent.

PN962

THE DEPUTY PRESIDENT: Mr Thompson, you can leave the witness box and sit in the courtroom.

<THE WITNESS WITHDREW [10.10 PM]

*** BRIAN JAMES THOMPSON RXN MR KENT

PN963

THE DEPUTY PRESIDENT: Under the Act, I have the power to inform myself about the matters that are before me and that includes the power to invite parties to give or invite a person to give evidence before me in relation to matters before me. In the conference earlier today, there were a number of employee bargaining representatives who indicated they had a view about the conduct of the proceedings and a view about whether a ballot should be conducted and whether they felt that the negotiations, the bargaining, had been conducted in a fair and appropriate manner. That evidence at the moment is not formally before me because it was given in private conference. If any of those individuals would like to give evidence under oath so that I can take into account their opinions in my decision, you are welcome to do so now.

PN964

Would you like to come to the witness box. I need to get you to give your evidence under oath like all the witnesses. I will get you to give your name and how many employees you represent and what depot you are based at. If you come into the witness box.

PN965

THE ASSOCIATE: Please state your full name and address.

PN966

MR GRIFFIN: Darren Shane Griffin, (address supplied).

<DARREN SHANE GRIFFIN, SWORN [10.12 PM]

EXAMINATION-IN-CHIEF BY THE DEPUTY PRESIDENT [10.12 PM]

PN967

THE DEPUTY PRESIDENT: Just for the purpose of the transcript, can you repeat your name again?‑‑‑Darren Shane Griffin.

PN968

Griffin?‑‑‑Griffin.

PN969

Mr Griffin, earlier today in informal conciliation proceedings, I asked each of the bargaining representatives what their view was about the ballot proceeding, what their experience was in the bargaining negotiations to date. Are you able to - now that you are sworn under oath - explain to me on transcript the information that you provided earlier in the day to the Commission or your views on those particular matters?‑‑‑I've been driving Transperth buses for 27 years; I've been employed with Swan Transit coming up to 15 years. I've been in negotiations previously with previous employers and previously with Swan Transit. During the negotiations, I've had robust discussions with both management, the TWU and now Transport Edge or the single bargaining unit. I felt that my opinions and voice was heard, I had no problem with expressing myself.

*** DARREN SHANE GRIFFIN XN THE DEPUTY PRESIDENT

PN970

I also found that in the matter of notices, there was a discussion during the meetings regarding notices. I had advised the other delegates that previously I'd sought permission from management, gave them the respect that I think they deserve and asked permission to post two notices. One notice actually had content that wasn't exactly the company line and I was still given permission to post that, and I felt that towards the end of the 21st/22nd meeting, most of the parties were coming closer together to an agreement that we could put forward to drivers and, in my opinion, the drivers that I represent at North Fremantle want to take a ballot and voice their opinions this week. That's all I have to say.

PN971

THE DEPUTY PRESIDENT: All right. As a matter of equity, I need to allow Mr Ferguson and Mr Dzieciol, if he wishes to do so - you'd be unlucky because he hasn't cross-examined anyone yet - and Mr Kent the opportunity to ask you some questions about your evidence. Mr Ferguson, do you have anything to ask?

PN972

MR FERGUSON: Yes.

CROSS-EXAMINATION BY MR FERGUSON [10.15 PM]

PN973

MR FERGUSON: Darren, when did you first notify that you were a bargaining agent?‑‑‑Please repeat the question.

PN974

When did you first notify that you had become a bargaining agent?‑‑‑I'm not sure.

PN975

Who did you provide that information to?‑‑‑My manager.

PN976

Did you understand it was an obligation to advise all other bargaining agents of your new authority?‑‑‑No, I was not aware of that.

PN977

Was your authority taken out after Mr Thompson had concluded the last meeting and put it out to vote?‑‑‑No, I think it was prior to that.

PN978

Are you sure? Can you be sure because I remember on the day of the last meeting it was put to you that as far as the single bargaining unit was concerned, we hadn't received notices under section 176 and we brought it to people's attention at the meeting that, in fact, they weren't bargaining agents, they were part of basically a consultative committee that had been put together by the employer following votes of representation in the workplace?‑‑‑Yes, I now actually recall that conversation and, yes, that occurred at the last meeting.

*** DARREN SHANE GRIFFIN XXN MR FERGUSON

PN979

So following the meeting, that's when you completed the forms?‑‑‑Yes, that is correct.

PN980

Thank you, Darren.

PN981

THE DEPUTY PRESIDENT: Mr Dzieciol?

CROSS-EXAMINATION BY MR DZIECIOL [10.17 PM]

PN982

MR DZIECIOL: Mr Griffin - - -

PN983

THE DEPUTY PRESIDENT: You're unlucky. He's gone all day and not asked anyone a question.

PN984

MR DZIECIOL: - - - how did you become involved in the enterprise discussions for this particular agreement?‑‑‑Basically the depots were asked to elect a representative, nominations were put forward and, based on the nominations, I was given the privilege to represent my depot based on the vote.

PN985

So you were not formally appointed as a bargaining agent as such?‑‑‑Not at that point.

PN986

Did you find that - did you have any problems in having your views heard or representing your depot just because you weren't formally appointed as a bargaining agent?‑‑‑No, I had no limitation placed upon me.

PN987

Did you find that somehow things changed when you did formally become a bargaining agent?‑‑‑No, things haven't changed.

PN988

I have no further questions, Deputy President.

PN989

THE DEPUTY PRESIDENT: Mr Kent?

PN990

MR KENT: We have no cross-examination.

PN991

THE DEPUTY PRESIDENT: Thank you. You are released, thank you very much.

*** DARREN SHANE GRIFFIN XXN MR DZIECIOL

<THE WITNESS WITHDREW [10.17 PM]

PN992

THE DEPUTY PRESIDENT: Is there anyone else that would like to give some evidence?

PN993

THE ASSOCIATE: Please state your full name and address.

PN994

MR DENNING: My name's Kelvin Walter Robert Denning of (address supplied).

<KELVIN WALTER ROBERT DENNING, AFFIRMED [10.18 PM]

EXAMINATION-IN-CHIEF BY THE DEPUTY PRESIDENT [10.18 PM]

PN995

THE DEPUTY PRESIDENT: Would you like to - - -?‑‑‑I, like Darren, was nominated and elected by the majority of my drivers at the Banjup Depot for Swan Transit. I've been with Swan Transit for nearly six years. The whole journey through this bargaining agreement, as I stated previously to the Deputy President, was tumultuous at the start, but in the last probably five/six meetings prior to Christmas, we were starting to make some very strong progress, there was concessions made on behalf of the drivers and the company and we looked like we were going to go to a formal vote some time just after Christmas or early February and then there was an introduction of this bargaining agent situation which sort of caused a little bit of turmoil and was really - changed the whole complex of the bargaining, but up until that point, I believe every bargaining representative that was present at the meetings up until Christmas had a fair hearing and had the opportunity to put their point of view forward. That's all I've got to say.

PN996

Thank you. Mr Ferguson?

CROSS-EXAMINATION BY MR FERGUSON [10.20 PM]

PN997

MR FERGUSON: Just one question. At what time did you become a bargaining agent in this process?‑‑‑On the Friday morning prior to the last meeting.

PN998

On the Friday morning prior to? Who did you provide those notices to?‑‑‑My depot manager, Warren Palmer.

*** KELVIN WALTER ROBERT DENNING XN THE DEPUTY PRESIDENT

*** KELVIN WALTER ROBERT DENNING XXN MR FERGUSON

PN999

You didn't advise any other bargaining agents like the TWU or Mr Sturgess?‑‑‑Not at the time; I wasn't aware I had to.

PN1000

No further questions.

PN1001

THE DEPUTY PRESIDENT: Mr Dzieciol?

PN1002

MR DZIECIOL: Thank you.

PN1003

THE DEPUTY PRESIDENT: He's on a roll now.

PN1004

MR DZIECIOL: It's a record, Deputy President.

CROSS-EXAMINATION BY MR DZIECIOL [10.21 PM]

PN1005

MR DZIECIOL: You mentioned in your evidence that you had no problems in being heard, in having your say - I'm paraphrasing here - until Christmas. What happened after Christmas? Did you have problems expressing your views or getting your message across?‑‑‑Yes, some very strong voices came into the room after Christmas and tried to take control of the meetings. They talked down to the other representatives at the table, they spoke over a lot of comments that we were discussing and they were totally uninformed as to really what had transpired in the bargaining process up until Christmas.

PN1006

Thank you. No further questions, Deputy President.

PN1007

THE DEPUTY PRESIDENT: Can I just ask you who they were?‑‑‑Pardon?

PN1008

Who those people were?‑‑‑It was the bargaining agents, whatever they call them, single bargaining unit.

PN1009

Those that were employees or ---?‑‑‑Not necessarily the employees, no.

PN1010

Thank you.

CROSS-EXAMINATION BY MR KENT [10.22 PM]

PN1011

MR KENT: Is it your evidence you felt as though you had been given an equal opportunity to put your views in meetings?‑‑‑Yes, we had.

*** KELVIN WALTER ROBERT DENNING XXN MR DZIECIOL

*** KELVIN WALTER ROBERT DENNING XXN MR KENT

PN1012

And you are comfortable the meetings have been even-handed in the way they've been chaired and managed?‑‑‑Yes, I do.

PN1013

Is it your view that the drivers you represent would like this matter to go to a ballot?‑‑‑Most definitely. We're probably one of the strongest "yes" votes in the Swan Group in Western Australia.

PN1014

A "yes" vote in relation to wanting it to go out to a ballot?‑‑‑Wanting to go out to a ballot and supporting it.

PN1015

No further questions, Deputy President.

PN1016

THE DEPUTY PRESIDENT: Thank you. You are released from the witness box.

<THE WITNESS WITHDREW [10.23 PM]

PN1017

THE DEPUTY PRESIDENT: Would anyone else like to - Mr Sturgess?

PN1018

THE ASSOCIATE: Please state your full name and address?‑‑‑My name's Gary James Sturgess and I reside at (address supplied).

<GARY JAMES STURGESS, AFFIRMED [10.23 PM]

EXAMINATION-IN-CHIEF BY THE DEPUTY PRESIDENT [10.23 PM]

PN1019

THE DEPUTY PRESIDENT: Thank you?‑‑‑I'd just like to put a slightly different point of view over. I've possibly had more experience at committee meetings and such like than probably the majority of people. My opinion and the reason that I'm saying this is that my opinion as to the way that the meetings have been chaired, in particular, my personal opinion is that they're appalling. I entered into the agreement negotiation process with a reasonably open mind about how the process would unfold but I found along the lines of what Transport Edge are suggesting that the chairperson was domineering and did actually inhibit the ability of people to have a fair and open discussion. Now, that's my opinion and it's based on my experience in committee meetings and notices before.

*** GARY JAMES STURGESS XN THE DEPUTY PRESIDENT

PN1020

I voiced that concern to the chair at meeting 6, I believe it was, and we touched on it earlier when I suggested to the chair that it was shambolic. The response I got from the chair was - he thought that was a motion - he actually - am I allowed to actually say - use the term? He suggested that I called a "pile of shit". Now I found that to be extraordinarily unprofessional because I was just addressing a point of concern at that meeting.

PN1021

Further, I acknowledge that, you know, I'm not familiar with how negotiations work in this environment, so I didn't really participate in it too much, but I had some concerns with how the minutes were being taken. My point of view about the minutes were that they were important documents. As far as I understand, in Western Australia they can be used as prima facie evidence, which suggests to me that they are significantly important, but it was suggested by the chairperson that they were simply notes and of no particular significance.

PN1022

We asked if we could take recordings of the meetings for our records. That was - it was suggested by the general manager, the chair, that they wouldn't agree with it. There was a consensus, I think, that there was an audio recording taken by the person doing the minutes at a later stage and that would be available to anyone who requested it, you know, should the situation arise.

PN1023

I have some concerns about the minutes, the accuracy of the minutes and in meeting 12 - I didn't actually bring a copy of those meeting 12 along - I asked if I could listen to the audio recording of the previous meeting. We went into some - - -

PN1024

MR FERGUSON: Deputy President, there is a copy of minutes 12 that I'm happy to hand up.

PN1025

THE DEPUTY PRESIDENT: Do you need them?‑‑‑Just briefly, I might just touch on them if that's okay. Do I have to sign for them or anything? I was led to, you know, understand that that would be - that I was just simply following an instruction, an agreement that we'd had that I could have access to those without any significant trouble, but I believe the actual - there were 14 comments in the minutes at that meeting which just - where the general manager questioned why I would want to do it, could the matters of concern to me be addressed at the meeting, that it would be in everyone's interests. That was the implication, that it would be in everyone's interests for us to address them at the meeting and I said - my response was, and I repeated it several times in the minutes, that I would know the level of those concerns once I listened to the audio. Eventually I did have access to the minute-taker and her notes and the audio recording and I spent several hours going through those. What I found was that there had been several quite significant alterations to the minutes and the - from what I found, it all led to the general manager making those alterations and there were no notifications to any of the representatives that those changes had been made.

*** GARY JAMES STURGESS XN THE DEPUTY PRESIDENT

PN1026

I have a copy of the notes, the handwritten notes from the minute-taker, a copy of the original minutes that the minute-taker, I believe, sent to the general manager, I have a first draft of the minutes with some changes and it was significant that the paragraphs needed to be altered and there was a second draft of those minutes because the numbers of those paragraphs didn't match any longer.

PN1027

So what I did was I went through and made a list of all the changes that were made. That's just at that meeting - okay. This is quite significant and I was particularly concerned some were completely removed. That, in my experience, is of serious concern, and I appreciate it's not everyone's point of view, that the level of concern that I had wasn't necessarily everyone else's.

PN1028

But what it did for me is it meant that I couldn't - there was no credibility in any of the minutes that followed, or even preceded that. They actually to me, personally, lost credibility, and the reason that it's significant is that a lot of the - this morning when we were talking, a lot of people laid - were suggesting that it was the minutes that they forwarded to other drivers at their depots as a record of events, and I suggest that it's not an accurate record of events. I'd just like to put that concern to the chair.

PN1029

THE DEPUTY PRESIDENT: All right. Mr Ferguson, have you got any questions?

PN1030

MR FERGUSON: No questions.

PN1031

THE DEPUTY PRESIDENT: Mr Dzieciol?

PN1032

MR DZIECIOL: No.

PN1033

THE DEPUTY PRESIDENT: Mr Kent?

CROSS-EXAMINATION BY MR KENT [10.33 PM]

PN1034

MR KENT: Mr Sturgess, the other bargaining reps have been asked whether or not they were given the opportunity of being heard at the meetings. Your name figures fairly prominently throughout the minutes. Do you agree you were given the opportunity to put a view?‑‑‑That's a loaded question. I'm sorry, that's my opinion.

PN1035

THE DEPUTY PRESIDENT: That's what counsel do. You just need to answer.

*** GARY JAMES STURGESS XXN MR KENT

PN1036

MR KENT: It's a very simple question. Do you think you were able to put your views to meetings?‑‑‑No, not in the formal sense that I'm used to, no.

PN1037

What is your experience with attending meetings? You said you have more experience than most others who were attending meetings?‑‑‑I'm suggesting that. It's my opinion, I'm not actually certain of it. Over - for some about six years or seven years while I was in New Zealand, I attended council, I was engaged with council. I started off - - -

PN1038

In what capacity?‑‑‑I was involved with not for profit societies and community projects and through that engaged in council meetings, plus because we were incorporated societies, we needed a constitution and we needed to have formal meetings.

PN1039

So how many meetings would you have attended?‑‑‑Forty or 50, I suppose.

PN1040

Did you compile minutes of these meetings?‑‑‑No. Sorry, do you mean was I the minute-taker at those meetings?

PN1041

Yes?‑‑‑No, I wasn't, no.

PN1042

You have questioned the integrity of all the minutes taken?‑‑‑That's my opinion.

PN1043

Okay?‑‑‑I mean, I didn't actually use the word "integrity", but I take your point that that's what it amounts to. I take your point.

PN1044

In relation to the minutes of meeting 1, what's inaccurate in that?‑‑‑Excuse me, are you asking me to recount?

PN1045

You have made the point that the minutes after meeting 12 that you looked at, and you've pulled out draft 1 and draft 2, something else.

PN1046

MR FERGUSON: Just a point of order. The witness's evidence was following meeting 12. There's no evidence from Mr Sturgess about anything before meeting 12.

PN1047

THE DEPUTY PRESIDENT: I actually thought Mr Sturgess had said he had concerns about the accuracy of the minutes from the start to the finish.

*** GARY JAMES STURGESS XXN MR KENT

PN1048

MR FERGUSON: Yes, it was from that meeting point and that's where he made his comment. He made no comment about meeting 1 or 2, as far as I can understand.

PN1049

THE DEPUTY PRESIDENT: I must have misunderstood his evidence because I thought he did have concerns.

PN1050

MR KENT: Deputy President, my recollection of the evidence was that after he'd looked at minutes of meeting 12 and he felt that things had been altered and taken out, he then lacked confidence in the meeting minutes after that and, for that matter, the meeting minutes before that.

PN1051

THE DEPUTY PRESIDENT: Yes, I thought that was his evidence.

PN1052

Is that correct, Mr Sturgess?‑‑‑That's about right, yes, correct.

PN1053

MR KENT: I will repeat my question. In relation to your lack of confidence for the minutes in meeting 1, what in those minutes is inaccurate, in your view?‑‑‑Okay. Well, I'm not prone to giving, you know, recollection just based on recall, you know, of it. What I'm talking about here, and this particular occasion is documented - okay. I didn't document any variation in minutes 1, so I don't think - I don't believe I can answer your question.

PN1054

You have no indication or no knowledge and you're unable to say whether your concerns in relation to minutes of meeting 12 are reflected in any other minutes that have been taken?‑‑‑Correct. What I suggested was that the fact that there were changes, so significant changes, that, in my opinion, then the credibility of all of the minutes would be brought into question.

PN1055

Can you give me details of what the significant changes were?‑‑‑For minute 12?

PN1056

Yes?‑‑‑Absolutely. I've got them here if you'd like to have a look at them.

PN1057

Absolutely?‑‑‑Would you like a copy?

PN1058

THE DEPUTY PRESIDENT: Do the parties have any objection to it being tendered?

*** GARY JAMES STURGESS XXN MR KENT

PN1059

MR KENT: I haven't had a chance to have a look at it, so I don't know.

PN1060

THE DEPUTY PRESIDENT: Do you want to give Mr Kent a copy?‑‑‑I have other copies in my bag if I can bring it over here.

PN1061

Would you mind grabbing them and giving them to my Associate?‑‑‑Can I walk over there?

PN1062

Yes, you can walk across there. She will distribute them to the other representatives at the Bar table. That's the one he's looking at. We want a copy of that one. If not, I'll just get my Associate to copy it. Mr Sturgess, what we'll do is we'll just get a copy of that document that Mr Kent has got. You hop back in the witness box and my Associate will go and grab some copies in a moment, once Mr Kent has had an opportunity to read it. You can hop back in the witness box. What we might do is Emma will go and get some copies of it and the parties can have a read of it and we will see if there is any more evidence from other people and, if not, we'll come back to it and you can give me your submissions in relation to its admissibility?‑‑‑I do have some other stuff.

PN1063

Let's just deal with this one first. Is there anything?

PN1064

MR KENT: I am a little bit concerned because it does state in here, apart from just this, Mr Sturgess' view - - -

PN1065

THE DEPUTY PRESIDENT: Of the inaccuracies?

PN1066

MR KENT: On what he believes are the reasons why there have been changes made.

PN1067

THE WITNESS: That's right. That's why I've got a copy without my reasons, with just the changes, so people don't have - - -

PN1068

THE DEPUTY PRESIDENT: All right.

PN1069

MR KENT: In relation to the fact that this has reasons stated by Mr Sturgess, that they may be his views but they have not been the subject of any testing or anything else.

*** GARY JAMES STURGESS XXN MR KENT

PN1070

THE DEPUTY PRESIDENT: Yes. My concern would also be whether the other - even without his views, whether the evidence is tested by calling the minute-taker or the audio.

PN1071

MR KENT: I don't wish to pursue that because I'm not sure that it's - in the overall context of the applications before the Commission, I'm not sure this is relevant.

PN1072

THE DEPUTY PRESIDENT: All right.

PN1073

MR KENT: Or will take the subject of the applications any further.

PN1074

THE DEPUTY PRESIDENT: All right.

PN1075

THE WITNESS: Can I say something?

PN1076

THE DEPUTY PRESIDENT: I have just got to let Mr Kent finish his cross-examination.

PN1077

MR KENT: I have no further questions.

PN1078

THE DEPUTY PRESIDENT: So everyone's had an opportunity to cross-examine? Mr Dzieciol? Sorry, did I get out of order? You didn't want to cross-examine, Mr Ferguson?

PN1079

MR FERGUSON: I would like to have a look at the document to start with.

PN1080

THE DEPUTY PRESIDENT: I am not proposing to admit the document. Is there anything in cross-examination that you want to add?

CROSS-EXAMINATION BY MR FERGUSON [10.43 PM]

PN1081

MR FERGUSON: Mr Sturgess, throughout the bargaining process, would you say that employees had plenty of opportunity to distribute information freely amongst themselves to discuss the bargaining?‑‑‑I don't believe so, no.

PN1082

You don't believe so?‑‑‑No, I don't.

*** GARY JAMES STURGESS XXN MR FERGUSON

PN1083

Do you believe presently, in the lead-up to the ballot presently, drivers are in a position to freely distribute information and discuss it the way that they'd like to?‑‑‑No, I don't believe so, no.

PN1084

Throughout the bargaining process, Mr Sturgess, do you hold a view that the chairman continually shut down debate on issues that bargaining agents wanted to discuss in greater depth?

PN1085

THE DEPUTY PRESIDENT: Mr Ferguson, could you frame your questions so they're not leading, please.

PN1086

MR FERGUSON: I'll try to.

PN1087

At any stage through the bargaining process, do you hold the view that the chairman prematurely stopped debate on any or all issues?

PN1088

THE DEPUTY PRESIDENT: I am afraid, Mr Ferguson, that again is leading. Could you frame a question which is not leading. This is a witness which has not got the protection of counsel to object on their behalf. You need to frame the question so it doesn't have the answer in it. That's the trick to non-leading questions.

PN1089

MR FERGUSON: Were you given a full opportunity to complete your presentations and concerns on issues within the bargaining?‑‑‑No. I don't believe so.

PN1090

Do you believe - do you hold a view that there are other persons that also - - -

PN1091

THE DEPUTY PRESIDENT: It's a leading question again. You can't ask a question with - - -

PN1092

MR FERGUSON: Did other bargaining agents experience similar difficulties to you?‑‑‑I can't answer that.

PN1093

MR KENT: Well, with respect, Deputy President, he can't - - - -

PN1094

THE DEPUTY PRESIDENT: The witness has just said he can't answer that?‑‑‑Yes. I can't answer on their behalf.

*** GARY JAMES STURGESS XXN MR FERGUSON

PN1095

Is that it? Okay.

PN1096

MR FERGUSON: Can I just add a bit more?

PN1097

THE DEPUTY PRESIDENT: Very, very = actually, no. I've already allowed counsel to re-examine. Unless it's really, really pressing we would have to go back through that process again.

PN1098

MR FERGUSON: I would just like to address a concern that Mr Kent made about its relevance. That's all.

PN1099

THE DEPUTY PRESIDENT: Okay.

PN1100

MR FERGUSON: The reason that I stood and adhered to - - -

PN1101

THE DEPUTY PRESIDENT: Yes. Look, I've given the opportunity to be heard and I've given counsel the opportunity to examine.

PN1102

MR FERGUSON: I appreciate that.

PN1103

THE DEPUTY PRESIDENT: Otherwise we are just going to spend all night going backwards and forwards. Okay.

PN1104

MR FERGUSON: Thank you.

PN1105

THE DEPUTY PRESIDENT: Thank you. You can leave the witness box.

<THE WITNESS WITHDREW [10.46 PM]

PN1106

THE DEPUTY PRESIDENT: Is there anybody else that wanted to give any evidence? It's like a marriage. You have to further hold your peace if you don't speak up now. No one else? Okay. So what I'm going to do is invite Mr Ferguson to give his closing and Mr Dzieciol to give his closing, and Mr Kent to give his closing. At the end of that, once all of the evidence and submissions is on transcript, then you will have the opportunity to go home to your families and have your dinner.

*** GARY JAMES STURGESS XXN MR FERGUSON

PN1107

I just want to preface the closing by saying that a closing is a summary of the submissions that are based on the evidence that's currently before us. It's not the opportunity to introduce any new evidence and if anyone at the Bar table seeks to introduce any new evidence in closing I will stomp down on any of them that do it. So closing is not about new evidence. It's about summarising legal principles which apply to your case, based on the evidence which has been given today on transcript. Okay. Mr Ferguson.

PN1108

MR FERGUSON: I'm going to address "has engaged in capricious conduct and unfair conduct and has undermined the freedom of association in collective bargaining."

PN1109

THE DEPUTY PRESIDENT: Sorry, I'm just going to interrupt for one second. What am I going to do is mark your submissions so I've got them on the record. I'm going to mark the submissions that were filed by Mr Ferguson which definitely have a number of pages. I'm going to mark that exhibit A3.

EXHIBIT #A3 SUBMISSIONS OF MR FERGUSON

PN1110

MR FERGUSON: This deals with the matters that were raised in B2017/150 application where it was alleged - it has been alleged that the employer has engaged in capricious conduct and unfair conduct that undermined the of association and collective bargaining. The meeting of minutes of June 2016 and 29 November which have been subject to evidence and cross-examination here today and the witness statements of Mr Fawkes and Mr Parker provide ample proof that employees have been denied freedom of association and a right to distribute information relating to the bargaining proposed replacement agreement.

PN1111

The employer has failed to meet the requirements of good faith bargaining under section 228(1)(e) in that the employer has undermined the principles of freedom of association which allows employees to belong or not to belong to an industrial association and be involved in distributing materials and to appoint bargaining agents to represent their interests at negotiating tables.

PN1112

I would refer the Deputy President to the case of the Australian Municipal Administrative Clerical and Services Union v Queensland Tertiary Administration Centre, a decision of Richards DP in Brisbane in July 2009 and at 13 of that judgment it goes to the explanatory memorandum at item 951 and reads as follows:

PN1113

The good faith bargaining requirements are generally self-explanatory. The last requirement, refraining from capricious and unfair conduct, is intended to cover a broad range of conduct. For example, conduct may be capricious and unfair if an employer (1) fails to recognise a bargaining representative, does not permit an employee who is a bargaining representative to attend meetings or discuss matters relating to the terms of the proposed agreement with fellow employees

PN1114

and that has the emphasis of Richards DP at the time,

PN1115

Dismisses or engages in detrimental conduct towards an employee because the employee is a bargaining representative or participating in bargaining or prevents an employee from appointing his or her own bargaining representative.

PN1116

The evidence of Mr Parker and Mr Fawkes is quite clear and Mr Fawkes' position, he was a bargaining representative and he was attending meetings, but when he was discussing those matters with fellow employees or attempting to do so, there is evidence that Mr Fawkes was either walked off or escorted or told to leave the premises. He was no longer welcome because he was expressing a contrary view. There has been evidence that the Deputy President has heard today of notices being ripped down and torn out, because there was a contrary view. The Deputy President has heard evidence despite the company having no policy that employees could have any understanding on, other than an understanding that they have that the Fair Work Act allows for lawful industrial activity and that lawful industrial activity at all times is to belong or not to belong to an association or an organisation of their choosing, to be able to promote and distribute materials that support the association that they belong to is their industrial right. It's industrial law that says that is legal industrial activity.

PN1117

It is an object of the Fair Work Act. It is one of the main corridors of where government has seen that democracy needs to be in place. It gives force to the international conventions of labour. It supports the finding of the United Nations in 1948 in determining human rights. It's such a fundamental human right to be able to express freely all views in a society without fear or reprimand.

PN1118

We have evidence from Mr Sturgess, the last witness today who believes presently that workers are not able to have an informed ballot and we say an informed ballot. It is most important that they are able to freely exchange these views and their ideas to openly discuss that. Not to do so is to crush - to remove their rights, their lawful industrial rights to discuss.

PN1119

This application sought to delay a ballot for a number of reasons, but nothing can be more purposeful or give adequate reason why this ballot should be delayed and that the orders that we seek for suspension be put in place, because firstly it will allow the employees time and space to be able to communicate amongst themselves and freely distribute information.

PN1120

If bargaining orders are not given today to give effect to that, then they are not in a position to freely communicate and advance their ideas amongst each other. So that is one very solid reason and the Commission only has to find that one of the bargaining agents has breached one or more of the good faith requirements to be satisfied that item 2 of the requirements of the Act have been met.

PN1121

I will move on from that one and I will coach - I will take the Commission to the next decision, which is the Australian Meat Industry Employees Union v T and R Murray Bridge Pty Ltd, a decision of Hampton C made in Adelaide on 26 February 2010 and we can pick it up at 55. It says:

PN1122

The timing of the negotiations impact of capital works program (indistinct) may have meant that it needed some time to consider and properly respond to many issues raised within the log of claims. However, any move to finalise its position without having responded and held genuine discussions with the AMIEU as the bargaining representative in that context, is not consistent with the good faith obligations of the act. The intended process of informing the union of response at the JCC committee so late in the process also, in my view, fails to recognise the rights and obligations of bargaining representatives. This act is indicative of failure to generally recognise the AMIEU as a bargaining agent.

PN1123

Now, if we replaced "raised within the log of claims" and we have "the questions on notice that come out of the log of claims", then it would read:

PN1124

However, any move to finalise a position without having responded and held genuine discussions with the single bargaining group as bargaining representatives in that context is not consistent with good faith obligations."

PN1125

And then we go down to 57 and I will paraphrase it, and I won't use the words of the AMIEU, I will use the joint bargaining committee's role as the bargaining representative required the employer to respond to the claims in a timely manner and attend and participate in bargaining meetings as it was reasonable.

PN1126

This issue is whether in all the circumstances T and R has complied with the requirements of 228. That decision reinforces that there was an obligation placed upon the respondent in this matter where he had clear notice of the questions. He had clear notice in the negotiations that we were also formulating other positions to come back in relationship to casual employees and some other issues that he discussed.

PN1127

We tried - we raised at the - before the meeting concluded that there should be at least an adjournment of two weeks, so that those questions on notice could be responded to, would allow the single bargaining unit an opportunity to look at the responses received from the employer and then get its position for bargaining developed. Because what's been missing in all these negotiations is that there has been no timetable on any issue where bargaining agents could dedicate one or two meetings to the main sections of the agreement, be it the wage structure that would be normally - in any meeting process, that would be probably about a four or five meeting process for everyone to get familiar with the documentation, the figures and develop counter proposals.

PN1128

To go to a final meeting where you have questions on notice and then to find out there is flashing up before you new classification levels that you've never seen with wage rates that have the effect of actually dropping people's wages by up to 50 or 60 cents an hour, depending on where they fit in the classification structure, and then to move at the end of the meeting and say, "It's going out to vote", it put a single bargaining unit at a great disadvantage.

PN1129

It is the case that I've only appeared at four meetings, but the members of the joint bargaining committee, apart from Mr Quinn, are the employees that were formerly the depot representatives. Those representatives were frustrated in the way that Mr Sturgess has tried to give his evidence, that they weren't getting adequate responses, they were being shut down on every occasion within the bargaining to the point now that Mr Sturgess has shown the minutes were substantially altered and changed and we've had evidence as well that many of these representatives used those so-called minutes as some bona fide example of what had actually occurred within the bargaining. That didn't occur.

PN1130

My friend, in his submissions - - -

PN1131

THE DEPUTY PRESIDENT: Mr Ferguson, I will just point out that I can only take into account in my decision evidence that was put on transcript, not evidence or not information that was provided in the confidential private conciliation sessions prior to the hearing.

PN1132

MR FERGUSON: You will put what weight you need to on what I say, madam.

PN1133

The next point I need to raise with you is a point that my friend here has made in relation to section 255:

PN1134

Section 255 clearly prevents the Tribunal from requiring an employee to vote against a proposed enterprise agreement. An order that would have the same effect is also not available. I do not believe that the limitation is necessarily confined to orders which relate to the outcome of bargaining. In some cases orders may infringe the section if they deal merely with process issues.

PN1135

These are the comments of Watson VP in NUW v SHEP Australia:

PN1136

Whether a particular order is contrary to section 255 depends on the nature of the order, and the effect of the order in the circumstances of the case.

PN1137

In my view, the better interpretation of the provisions is that an order that delays a vote, provided it be only for a short time and does not in substance deny employees the opportunity to vote for an agreement, is not precluded by section 255. In a given case the facts will need to be considered to determine whether intervention of this nature by deferring a vote has the effect precluded by section 255.

PN1138

An informed vote, and this is one of the points that we have pushed all day, is that employees need to go to an informed ballot, and with major questions still not answered, that could have a significant impact upon the negotiations. It would be wrong to reach the conclusion that the negotiations had come to an impasse. There is much room to manoeuvre within these negotiations provided people are prepared to sit down and listen to each other and be constructive in how they want to reach an outcome, rather than just saying, "No, I've heard what you say, I don't have to listen to you, I'm moving on to the next subject."

PN1139

It has been surface bargaining that has hardly scratched the surface and surface bargaining is something that this Commission has spoken on on many occasions.

PN1140

Part of what we've been seeking, too, and I will just raise this, is to do with the ballot coming up - I know it's in our concerns in our last application - that employees have been concerned that the private company who's been conducting the ballot, at the end of the ballot may not be able to identify which employee voted this way but has been able to provide the employer a breakdown on a depot by depot analysis of who voted for this and who voted for that. That has undermined their confidence. They believe because of the ability of this private company to provide that information - - -

PN1141

MR KENT: Deputy President, I know you made the point at the outset that we can only take submissions in relation to matters that were put into evidence, but, madam, there has been no evidence led by any witness today regarding electronic voting and if it's good or bad. I believe that Mr Ferguson hasn't taken on board the instruction and directive that the Deputy President gave before starting submissions about restricting them to the actual evidence that has been led in the matter.

PN1142

MR FERGUSON: Deputy President, as I raised with you earlier today and I placed on transcript, we believe the process today placed us procedurally unfair. I had tried to indicate earlier on today that I wished to supplement my submissions, written submissions, from the bench. Now I have been in this jurisdiction since 1991 and you are the first deputy president or, for that matter, commissioner that has disallowed an advocate to make supplementary submissions from the Bar table. In such an important matter and in such a tight timeframe that we had to work in, to be denied the opportunity for submissions to come from the Bar table stopped us being able to bring those matters into evidence.

PN1143

I was not even able to give an opening address in these matters where I wanted to direct the Deputy President to the matters that we wished to raise before the Deputy President in a logical way. That hasn't occurred, but there was comment, and Deputy President would have heard this in the conciliation conference this morning, that there were concerns about that voting process.

PN1144

THE DEPUTY PRESIDENT: All right, Mr Ferguson, I just need to stop you there.

PN1145

MR FERGUSON: Okay.

PN1146

THE DEPUTY PRESIDENT: At no point did I prevent the parties making opening submissions. The parties conducted their case in the manner in which they chose to do so. All three counsel proceeded straight to giving their witness evidence. Mr Dzieciol declined the opportunity to call any witnesses. I have not - - -

PN1147

MR FERGUSON: Deputy - - -

PN1148

THE DEPUTY PRESIDENT: Mr Ferguson, please wait. I have not at any point denied you the opportunity to give supplementary submissions. What I am putting to you, which is a very, very basic principle, which I would presume someone who has been an advocate in this jurisdiction for any period of time is aware, that you cannot give evidence from the Bar table and you cannot make closing submissions about matters which are not before me as a matter of evidence.

PN1149

MR FERGUSON: If I had been given the opportunity to give those supplementary submissions, I would have tabled all the documents that I have in my bag that indicate the breakdown of the vote depot by depot. To say that I chose to run my case the way I did, you demanded that I go straight in and Mr Fawkes had to go into the witness box. You stopped me when I was starting to address you on these points.

PN1150

THE DEPUTY PRESIDENT: Mr Ferguson, I stopped you when you were giving evidence and I said you are welcome to give submissions but you are not able to give evidence from the Bar table and what I suggested was if you wanted to give evidence, you should do that from the witness box.

PN1151

MR FERGUSON: And I tried to explain to you at that point I was trying to lay out to you the evidence as an overview of where this matter was going to go so I could - you would have some understanding where I wanted to direct it.

PN1152

THE DEPUTY PRESIDENT: Absolutely delighted - - -

PN1153

MR FERGUSON: You stopped me dead in my tracks.

PN1154

THE DEPUTY PRESIDENT: Mr Ferguson, all the way along, I am absolutely delighted for you to make submissions. However, you cannot give evidence from the Bar table, you have to give evidence under oath.

PN1155

MR FERGUSON: And I am saying I could have tendered that evidence at the Bar table if I'd been given the opportunity.

PN1156

THE DEPUTY PRESIDENT: But you can't tender the evidence from the Bar table, you have to tender it via a witness. You had the opportunity to call witnesses and any of the witnesses that you called ought to have been able to give evidence about their views about the appropriateness of the ballot system.

PN1157

MR FERGUSON: Well - - -

PN1158

THE DEPUTY PRESIDENT: And you chose not to ask any of your witnesses any questions about that or ask any of the employer's witnesses any questions about that.

PN1159

MR FERGUSON: If one looks at the Australian Municipal, Administrative, Clerical Services v Queensland Tertiary Registration Centre and we read how the Senior Deputy President handled urgent applications for bargaining orders, there is a lesson to be learned from how the Senior Deputy President approached that question, and I make no more submission on that.

PN1160

I have nothing further to add, other than the orders that we seek should be for a suspension of bargaining for at least a period of four weeks so that there can be a continuation of bargaining and that the employer has time to respond to the questions on notice and we have a chance to respond.

PN1161

We would also say that the Deputy President should consider some orders about setting up an independent chair, that there should be orders for bargaining representatives to come to an agreed agenda and timetable for items to be discussed and finalised, and we would think that if the Deputy President is inclined to make those orders, an order should be placed upon the employer to place notices in its workplaces that makes it absolutely clear that they have a right to distribute their materials related to their bargaining from their perspective and how they see benefits or the traps of going into such an agreement.

PN1162

That process, if you were to put that into orders, will allow people to go to an informed bargaining, it will allow bargaining agents sufficient time to conclude their bargaining and it will not offend section 255 of the Act if you were to grant the orders that we seek.

PN1163

The Act requires you to firstly find that the application was validly made. The next requirement of the Act is that you have to be satisfied that one of the bargaining agents has breached either one or more of the good faith bargaining principles. We would say to you they have breached two. The third part is a discretion that's in your hands, Deputy President, that in all of the circumstances, it is appropriate that orders be made, and we would say to you that in all the circumstances, it is more than appropriate that orders issue, particularly on the issue of freedom of association and the right to be informed before a ballot, and I would request that you give your strongest considerations to the points that we make in relationship to that.

PN1164

I have nothing more to add.

PN1165

THE DEPUTY PRESIDENT: Okay. Just so we're clear, Mr Ferguson, are there any other submissions that you would like to make?

PN1166

MR FERGUSON: Not at this stage of the evening. No.

PN1167

THE DEPUTY PRESIDENT: So there's nothing else that you want to put on the record?

PN1168

MR FERGUSON: Not that I'm aware of I should be making at this stage.

PN1169

THE DEPUTY PRESIDENT: So you're comfortable that every submission you want to make you've now had the opportunity to make?

PN1170

MR FERGUSON: No. I've never been comfortable with that all day but it's now 15 minutes past 11.00. I have an email system full of hundreds of documents I've never had a chance to examine. I only have got a late copy of the TWU's submission and I would imagine that Mr Dzieciol did send it to another email address where I was not at this morning as I was waiting for the respondent in this matter to come to me.

PN1171

The process of this whole day in application, from conciliation up to the hearing, in my view, has been wanting, has not been procedurally fair and has put us at a disadvantage from day dot. Now, they are my views. Deputy President may have other views on that and we'll see where this all ends up at the end of the day. But our intention is only to be to bring matters of concerns from workers into this Commission and to rely on the good faith bargaining objects. We hope we have succeeded - if very clumsily - and it may if we stood on a few toes, we apologise for that, but we will not apologise for standing up for workers and their rights and to assure that they, at least, have a hearing about being able to achieve an informed ballot. Nothing more, thank you.

PN1172

THE DEPUTY PRESIDENT: Mr Ferguson, what I'd like to be put on transcript is the materials were filed by the TWU and there's one transit in accordance with my directions. They were filed and served in accordance with the normal practise in this Commission which is by email, which is how you served your material. The matter was brought on at your insistence at short notice so that a determination could be made before the ballot was scheduled to occur. I had matters listed all day on Friday and matters listed all day tomorrow. So today is the only day I have available to hear and determine your application. So as a consequence of your request that the matter be determined before Thursday is the only opportunity I have had to hear this matter.

PN1173

I have given you every opportunity today to express and put and advocate your case and I am happy to continue to sit here until dawn if necessary to give you that opportunity. I don't propose to adjourn until you're happy that you have made all your submissions. I would note that the adjournment for two hours this afternoon for the parties - I had the opportunity to review the materials. There as an adjournment for an hour and 15 minutes at lunch time. There was also the opportunity for the parties to review materials while I was in private session with other parties. So it's not as if the parties haven't had the opportunity to review the materials during the day, in addition to their opportunity to make sure they had the materials ready for hearing.

PN1174

The presumption of this Commission is if a party brings an application on for urgent hearing that that party is ready to proceed and if you're preparing to proceed for hearing the Commission anticipates that you have your witness statements and your submissions ready. So the parties who bring matters on with urgent requests are presumed to have all of those materials ready, and it's in fact at the disadvantage of the responding parties that they have a very short timeframe in which to prepare their cases.

PN1175

What I want to do is be clear with you that if you have any further submissions that you want to make you should make them now and they should be submissions - not new evidence. So you need to be comfortable that you have made all the submissions that you propose to make and I am happy to sit here until dawn if that's necessary for you to make those submissions but I am not going to adjourn this matter until you are satisfied that you've made the submissions you wish to make.

PN1176

MR FERGUSON: Deputy President, I've operated in this Commission since 1991. I am a 61 year old man. In all my dealings with Chambers on such important matters the protocols that I'm used to if a Deputy President or a Commissioner had a time scale and they knew you were looking for a time slot they would normally give their Associates instructions to get Mr Ferguson on the phone and let him know that Deputy President or Commissioner has got some time available and would you be in a position to get submissions done by this time. And that would be just a conversation out there. And that would give you an opportunity to say, "Oh, the Commissioner is going to bring this on quicker. Or she's going to hold it back a little bit." The speed that this was - the applications have been out into the Fair Work system. We were concerned and we had to ring your Associate out of concerns because the Fair Work - though they had given us a registration number - when we lodged the first application we had no "B" number. I didn't know who it was allocated to. It was only by my pushing that I could get hold of someone here.

PN1177

Now, if the processes in the Fair Work have been up to a standard where they used to be - no I mean that - very clearly. We would have had the "B" number issued basically the same day that the application was in. We would have known who it was allocated, normally in about 24 hours. We would have been able to have that discussion. We would have been able to position ourselves in a timely way to make sure that everything was put into place and was prepared.

PN1178

When that arrived and it didn't happen I then attempted to speak to madam Associate just to let you know, notwithstanding that you'd issued some directions, they had not been received by us till many many hours later and that only gave us just less than five hours to put full submissions, get witness statements, get everything together. It was an impossible task. And normally I would say to you that the process would have been that we would have been allowed to give further submissions from the Bar table and present evidence from that Bar table.

PN1179

THE DEPUTY PRESIDENT: Mr Ferguson, I have given you every opportunity to make submissions from the Bar table. I don't know how many times I need to ask you - - -

PN1180

MR FERGUSON: You say that but you've denied me the opportunity to access the information that I needed to put that case together. You gave directions that things had to be in my tray by 9.00 o'clock. Well, they weren't in my tray by 9.00 o'clock and I'd started downloading at 20 to 9.00 to only get a fraction of the documents. So the directions weren't complied with from the other side that put us at a disadvantage. And we were put at a disadvantage at the beginning because there was no protocols being discussed between parties about dates and times and - - -

PN1181

MR KENT: Excuse me, deputy President. I can't put up with this rant any longer. If Mr Ferguson would like to make some submissions and honour the deputy President's request that would be great but we don't have to sit here listening to him complain about the workings of the Commission that have nothing to do with the matters in dispute and in issue in this matter. So I would ask Mr Ferguson - if he has submissions - to please make them but he is not entitled to lead evidence. And if he wanted to lead evidence the deputy President invited him to go into the witness box to tender the evidence himself. He chose not to. He can't whinge about his own decision now.

PN1182

THE DEPUTY PRESIDENT: Mr Ferguson, is there anything further and relevant to this case - - -

PN1183

MR FERGUSON: No.

PN1184

THE DEPUTY PRESIDENT: - - - submissions that you'd like to make?

PN1185

MR FERGUSON: I have made all my comments that I wish to make in relationship and I think I addressed your comments to me to the best manner I could and I have tried to explain the difficulties and we'll just leave it at that.

PN1186

THE DEPUTY PRESIDENT: Okay. Thank you, Mr Ferguson. Mr Dzieciol?

PN1187

MR DZIECIOL: Thank you.

PN1188

THE DEPUTY PRESIDENT: I'm sure these will be brief and concise.

PN1189

MR DZIECIOL: I'll endeavour to be. Look, I'll just add very briefly to the written submissions that we have filed. The TWU accepts that this phone in process mainly has not gone entirely smoothly at times. We accept that the process could have been better. But ultimately - the position of the TWU - as I have stated in our written submissions is that the process has gone on for over 12 months and it has reached a point where it is appropriate to gauge the views of the employees. And that is what the Commission heard today from the - from at least two of the witnesses that were voting representatives that volunteered to come up at the conclusion of the evidence of the respondent and the view amongst employees is that they just wanted to have their vote. And if for some reason - if the employees reject the agreement - then, obviously, there is an application by the TWU for - in relation to the enterprise bargaining under section 240 of the Act - and that process could be - the application could be used to progress the discussions with the assistance of the Commission should that be required.

PN1190

In terms of - and also it was the evidence that of - most of the witnesses that gave evidence today that there was robust discussion at the voting meetings and that they were able to put their view across like any number of matters - obviously what one person considers to be robust discussion and an ability to get their views across may be different from other persons point of view. But ultimately employees' representatives did get an opportunity to put their views across.

PN1191

As the Commission heard from Mr Thompson, voting representatives weren't given paid time off to talk to their constituency about these - about the bargaining. The TWU was given access to the employees as well. So the company - the employer has afforded a reasonable opportunity to the bargaining representatives to put their views to the employees.

PN1192

The TWU would like to have unfettered access to its members and to be able to distribute whatever material we considered about matters pertaining to bargaining or to any matters arranged with the employment relationship at any time and in whatever manner we thought suited the situation at hand. But, unfortunately, there are rules around these matters that there are obviously limits to what can be stated and a right to be heard is not - now - it would be nice if it was an unrestricted right, but ultimately we have to accept that there are some limitations on that right, unfortunately, and we have to operate within the parameters of the Act as they are - not as we would necessarily wish them to be.

PN1193

And, ultimately, we would submit that even if the Commission was satisfied that somehow good faith bargaining was not - was breached in this manner and I would submit that the evidence - certainly that I have heard - that's been submitted by the applicant, does not support that - the good faith bargaining provisions of the Act have been breached. But even if there is some technical breach, or some minor breach of the good faith bargaining provisions, then one of the major requirements and a very important requirement of the Act is that the Commission has to be satisfied that it is reasonable to make the orders in all of the circumstances.

PN1194

We would submit that it is not reasonable for the Commission to make these orders as the employees on Thursday and Friday will have an opportunity to have their say on the agreement. If the employees are not satisfied with the provisions of that agreement, they have the opportunity to vote that agreement down and then the process continues.

PN1195

But, there has to be some finality to this process. It cannot go on indefinitely and we would submit that there is no reasonable basis on which to delay the ballot. So, that's all I would say at this point in time, Deputy President.

PN1196

THE DEPUTY PRESIDENT: Thank you Mr Dzieciol. Mr Kent. I can see the home paddock fence.

PN1197

MR KENT: Deputy President, the respondent has already submitted a long outline of submissions in the matter which I don't intend to go through. The outline could have been significantly shorter, had I known what evidence was going to be led today. But as it is, the only issue upon which there is evidence before the court is in relation to the capricious and unfair conduct allegation.

PN1198

In relation to application B2012/2017 179 170, whichever one that is, the application on 28 February, there has been no evidence led in relation to any of the matters contained in that application. It is the submission of the respondent that it is for a matter that the applicant has not provided any evidence; has not proven its case in the matter, and should be dismissed.

PN1199

In relation to the application B2017/150, in relation to all the other submissions made in that application, apart from the capricious conduct and unfair conduct, there is no evidence before the Commission upon which it can make any decisions in relation to the respondent not satisfying the requirements under section 228(1)(a) through (d) and 228(1)(f).

PN1200

In relation to the substantive point, on 228(1)(e), the capricious conduct and unfair conduct, before the Commission can make orders, section 230(1)(c) is the underlying component or basis on which the Commission must be satisfied. In that provision, the Commission must be satisfied that it's reasonable in all the circumstances to make the order.

PN1201

The evidence before you from the respondent, is quite clear that in relation to the action taken against Mr Fawkes and Mr Parker, that this action resulted from their failure to adhere to a direction from management. It was not related to the fact that they were engaging in industrial activity.

PN1202

Perhaps, in these sorts of applications, it's very easy for the court to be conflicted or have a difficult decision because of the conflicting and entrenched views that an applicant and a respondent may have. It's not often that a Commission has the advantage of listening to what might be termed as unbiased, independent, third parties who have placed evidence before the Commission.

PN1203

But fortunately today, you were able to hear from bargaining representatives who don't – who probably sit on the fence, to use a widely accepted term. Who don't sit in, what might be termed the applicant's camp and don't sit in the company's camp. It was particularly significant the evidence given by Mr Griffin in his evidence, about how he had wanted to place notices in his depot and he indicated that those notices weren't necessarily all that complimentary to the company's view. That in line with the requested procedure for the erecting of notices in depots, he sought permission from management to erect a notice and that permission was granted and the notice was erected.

PN1204

It's easy to make a distinction between those circumstances and the circumstances of both Mr Parker and Mr Fawkes where they believed they did not have to get any permission before they could do anything in relation to distributing of material within the respondent's premises, and they were entitled to ignore directives from management in relation to cease distributing material, until they had sought permission to do so.

PN1205

What is really clear in here, is the specific evidence of both Mr Fawkes and Mr Parker that they did not seek to obtain permission before going about doing what they did. It was quite clear from their demeanour and from their evidence, that they were never going to seek permission because they believed they had an unfettered right to do whatever they wanted in relation to industrial activity on property of the respondent.

PN1206

Clearly, unfortunately, both Mr Parker and Mr Fawkes have been misinformed as to the extent of participation in industrial activity and the protections and the rights afforded to them, of participating in them. What is clear, if we look at the independent, if we want to term – or the non-applicant's camp, non-respondent's camp, of the evidence that has been provided, is that the people who gave evidence, Mr Griffin, Mr Denning.

PN1207

To some extent Mr Sturgess, Mr Griffin and Mr Denning were quite clear in their views that they believed bargaining had been robust over the course of the meetings and that both of them made the comment that significant progress had been made, leading up to Christmas last year and that they were comfortable, or confident of reaching agreement with the company early in 2017.

PN1208

Both of them expressed the view that their situation changed in 2017, specifically Mr Denning was quite specific that the injection of the applicant into the bargaining process, became detrimental to the process and that people who had participated in all meetings up until that time, felt as though their input, their views and their representation was put down, belittled and questioned – on Mr Denning's evidence, Mr Ferguson and Mr Quinn.

PN1209

If we put aside the applicant, we put aside the respondent's position and look at the evidence of Mr Sturgess and Mr Denning and Mr Griffin, the majority of that evidence is supportive of the view that the bargaining has been conducted in a manner that allowed people to express their views, to disseminate their views. In those circumstances, it's the submission of the respondent that the applicant hasn't satisfied the threshold test, set out in section 230(1)(c) that the Commission should be satisfied that it's reasonable in all the circumstances to make the orders that have been sought.

PN1210

It would be the submission by the respondent that having failed to satisfy the Commission, that the application should be dismissed and no bargaining order should be made and that whether or not the enterprise agreement is accepted or not, be allowed to be determined by the employees in the ballot scheduled for this Thursday and Friday.

PN1211

Those are the respondent's submissions. Unless the Deputy President would like to hear more of my dulcet tones.

PN1212

THE DEPUTY PRESIDENT: No Mr Kent, I've heard enough of everyone's dulcet tones today, with respect.

PN1213

MR KENT: May I be excused?

PN1214

THE DEPUTY PRESIDENT: What I'm going to do is to adjourn briefly and decide whether I give an ex tempore decision, or whether I reserve my decision. I will reconvene at midnight.

SHORT ADJOURNMENT [11.44 PM]

RESUMED [11.58 PM]

PN1215

THE DEPUTY PRESIDENT: In light of the quantity of evidence which I have before me and to give me an opportunity to consider submissions made by the parties orally, what I'm going to do is reserve my decision and I'll issue my decision tomorrow. That will occur during the day. I've got matters listed back to back, so it will occur at some point during the day tomorrow.

PN1216

If I'm inclined to make the orders which are requested which have been applied for, then I will make one or more of those orders. If I'm not convinced that the orders are appropriate, then I will advise the parties accordingly and issue my reasons for doing so in due course.

PN1217

I'd like to thank you all for your patience today; it's been a very long day. I'm particularly appreciative of the individual bargaining representatives and their attendance today. It's been a long day. Legal proceedings are sometimes complex; sometimes they don't make a lot of sense, but it's very important, I think, for our Commission to have the benefit of the views of people who have to live and breathe these agreements.

PN1218

I'm very grateful that you attended today and that you participated and I was delighted that you were all willing and able to articulate your views. While a number of you made your views apparent in the conference environment, unfortunately I can only take in account in my decision, the evidence which was put onto transcript under oath and that's because the evidence which is given under oath is given greater standing in the Commission than evidence which is given informally.

PN1219

I do appreciate the information you've provided to me, but in my decision, I'll have to rely on the documentary and oral evidence that were given under oath. Based on that I'll reach a conclusion and that will be – the parties will be advised of that conclusion during the course of tomorrow.

PN1220

Thank you very much for your patience during today.

PN1221

MR THOMPSON: Can I just ask one question, it's relating to the vote?

PN1222

THE DEPUTY PRESIDENT: Yes.

PN1223

MR THOMPSON: It is an electronic vote and the SMS and the pin notification is scheduled to go out at 10 o'clock tomorrow morning. Would that still be appropriate? The vote can still be called off after that.

PN1224

THE DEPUTY PRESIDENT: The vote proceeds unless I order otherwise.

ADJOURNED INDEFINITELY [12.01 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN FAWKES, AFFIRMED.............................................................................. PN51

EXAMINATION-IN-CHIEF BY MR FERGUSON........................................... PN51

EXHIBIT #A1 UNSIGNED AND UNDATED STATEMENT OF JOHN FAWKES PN58

CROSS-EXAMINATION BY MR KENT........................................................... PN69

RE-EXAMINATION BY MR FERGUSON...................................................... PN313

EXHIBIT #R1 EMAIL DATED 6 JANUARY.................................................. PN375

THE WITNESS WITHDREW............................................................................ PN399

WALTER CLIFFORD PARKER, AFFIRMED.............................................. PN428

EXAMINATION-IN-CHIEF BY MR FERGUSON......................................... PN428

EXHIBIT #A2 WITNESS STATEMENT OF WALTER CLIFFORD PARKER. PN441

CROSS-EXAMINATION BY MR KENT......................................................... PN463

RE-EXAMINATION BY MR FERGUSON...................................................... PN494

FURTHER CROSS-EXAMINATION BY MR KENT.................................... PN527

THE WITNESS WITHDREW............................................................................ PN536

GLENN MURRAY, AFFIRMED....................................................................... PN550

EXAMINATION-IN-CHIEF BY MR KENT.................................................... PN550

EXHIBIT #R2 STATUTORY DECLARATION OF GLENN MURRAY DATED 07/03/2017................................................................................................................................. PN559

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN566

RE-EXAMINATION BY MR KENT................................................................. PN618

THE WITNESS WITHDREW............................................................................ PN635

JAMES BARLOW, AFFIRMED........................................................................ PN636

EXAMINATION-IN-CHIEF BY MR KENT.................................................... PN636

EXHIBIT #R3 STATUTORY DECLARATION OF JAMES BARLOW DATED 07/03/2014................................................................................................................................. PN643

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN651

THE WITNESS WITHDREW............................................................................ PN667

STEVEN HENDERSON, AFFIRMED.............................................................. PN668

EXAMINATION-IN-CHIEF BY MR KENT.................................................... PN668

EXHIBIT #R4 STATUTORY DECLARATION OF STEVEN HENDERSON DATED 07/03/2017............................................................................................................... PN676

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN678

RE-EXAMINATION BY MR KENT................................................................. PN701

THE WITNESS WITHDREW............................................................................ PN708

BRIAN JAMES THOMPSON, AFFIRMED..................................................... PN709

EXAMINATION-IN-CHIEF BY MR KENT.................................................... PN709

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN717

RE-EXAMINATION BY MR KENT................................................................. PN919

THE WITNESS WITHDREW............................................................................ PN962

DARREN SHANE GRIFFIN, SWORN............................................................. PN966

EXAMINATION-IN-CHIEF BY THE DEPUTY PRESIDENT..................... PN966

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN972

CROSS-EXAMINATION BY MR DZIECIOL................................................. PN981

THE WITNESS WITHDREW............................................................................ PN991

KELVIN WALTER ROBERT DENNING, AFFIRMED............................... PN994

EXAMINATION-IN-CHIEF BY THE DEPUTY PRESIDENT..................... PN994

CROSS-EXAMINATION BY MR FERGUSON.............................................. PN996

CROSS-EXAMINATION BY MR DZIECIOL............................................... PN1004

CROSS-EXAMINATION BY MR KENT....................................................... PN1010

THE WITNESS WITHDREW.......................................................................... PN1016

GARY JAMES STURGESS, AFFIRMED...................................................... PN1018

EXAMINATION-IN-CHIEF BY THE DEPUTY PRESIDENT................... PN1018

CROSS-EXAMINATION BY MR KENT....................................................... PN1033

CROSS-EXAMINATION BY MR FERGUSON............................................ PN1080

THE WITNESS WITHDREW.......................................................................... PN1105

EXHIBIT #A3 SUBMISSIONS OF MR FERGUSON.................................... PN1109

Fair Work Commission Transcripts

B2016/1278, Transcript of Proceedings [2017] FWCTrans 104 (28 March 2017)