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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
COMMISSIONER CRIBB
s.185 - Application for approval of a single-enterprise agreement
Application by MSS Security Pty Ltd
(AG2016/4493)
Melbourne
10.23 AM, TUESDAY, 14 MARCH 2017
Continued from 19/12/2016
PN535
MR LEVIN: First my apologies. I'm almost never late I can't say never, but unfortunately, we couldn't get to the payroll yesterday because the Melbourne office wasn't opened or operating, so to get some of the data I needed, sorry, we were still working up to the last minute.
PN536
Hopefully you saw a copy of the statement. I've explained to Mr Findley that it has nothing in it whatsoever to do with pre-approval steps. Thank you, Commissioner.
PN537
THE COMMISSIONER: That is correct, Mr Findley.
PN538
MR FINDLEY: I don't need a copy of that, Commissioner, thank you.
PN539
THE COMMISSIONER: All right. Thank you. Mr Levin.
PN540
MR LEVIN: Commissioner, this is a continuation of an application to approve this enterprise agreement and as a couple of preliminary points from the Commissioner's feedback, we'd like to make to proffer two undertakings on a couple of clauses in the agreement. I regret that I haven't typed them up, but they're very short. One goes to the issue of unpaid stand-down investigations paid and I'm instructed to undertake that we would change the word 'unpaid' to 'paid'.
PN541
THE COMMISSIONER: Mr Levin, that's ringing a bell. Is that the stand-down clause?
PN542
MR LEVIN: Yes.
PN543
THE COMMISSIONER: Yes, okay, so that's 7.4?
PN544
MR LEVIN: It is. We'll put that in writing and send it to the Commission for finality. But a small change from unpaid to paid in terms of wording.
PN545
THE COMMISSIONER: Right, yes.
PN546
MR LEVIN: The other is also in the dispute resolution clause, in relation to rights of appearance and we will add the following words which again, I will send to the Commission. 'Subject always to the Fair Work Commission's powers to determine rights of appearance and representation'.
PN547
THE COMMISSIONER: Okay. It feels like Monday morning.
PN548
MR LEVIN: Yes.
PN549
THE COMMISSIONER: I think you said that was the settlement of dispute's clause, is that correct?
PN550
MR LEVIN: It is.
PN551
THE COMMISSIONER: That's clause 15 is that point 3.4? Okay, cool.
PN552
MR LEVIN: Thank you.
PN553
THE COMMISSIONER: Sorry, I just need to get my head tuned in.
PN554
MR LEVIN: Thank you Commissioner, appreciate that. So, they are the only two undertakings that are being proposed.
PN555
THE COMMISSIONER: Right, okay.
PN556
MR LEVIN: What we'd like to do is take you through I'll call in a moment, Mr Luddington, our only witness and propose, subject to you agreeing after he's in the box, to tendering his statement of 17 February.
PN557
THE COMMISSIONER: Yes.
PN558
MR LEVIN: But then also, I've sent to you and to Mr Kenchington-Evans a further statement of 14 March. I'm told there's two small errors that need to be corrected in the box from that, but just so I can give you the broader picture.
PN559
What we're looking to do is to remove any doubt whatsoever about BOOT being satisfied just on cash, and obviously, we're all well aware of the fact that you flagged that you wanted attention be given to the question of the shift the per shift first aid allowance being lower in the EA than under the enterprise agreement and acknowledging that that $2.12, the differential minus is offset only by 60 cents by the per shift amount for the laundry. It's $1.52 per shift negative for those two.
PN560
I wanted to provide you with further specific evidence following the research from Mr Luddington of the benefit to employees of the overtime amounts that they receive. They are matters which I will take you to in Mr Luddington's evidence, if I may. If it's permissible, I'd like to call Mr Luddington.
PN561
THE COMMISSIONER: Just before you do Mr Levin, if I may, I'm assuming that the further statement of Mr Luddington's this morning, it has an update on Mr Lewer's.
PN562
MR LEVIN: Yes, it does.
PN563
THE COMMISSIONER: Mr Lewer is attachment 15 to Mr Luddington's first statement, ML15?
PN564
MR LEVIN: Yes, it's updated and you'll see in paragraph 6(a) of the proposed statement of Mr Luddington.
PN565
THE COMMISSIONER: Yes, then you've added in Mr Mansell.
PN566
MR LEVIN: Yes, and also provided you with a typical roster for a level 4 for Brookfield site.
PN567
THE COMMISSIONER: Yes, that's right.
PN568
MR LEVIN: But as will be explained, whether it's level 4, or 3 or 2, the differentials are the same.
PN569
THE COMMISSIONER: Just my other question just ahead of Mr Luddington.
PN570
MR LEVIN: Yes.
PN571
THE COMMISSIONER: The calculations in the further statement, are they for all employees, irrespective of whether they're new or existing?
PN572
MR LEVIN: Solely new.
PN573
THE COMMISSIONER: They're solely new, are they?
PN574
MR LEVIN: It will be our submission that there should be no question in the mind of the Commission as to the if I can call them the existing employees as opposed to new, because their rates are so substantially higher than the award. That what I'm trying to do here is address any concern in respect of those employees whose hourly rates are half of one per cent above the award. Because of that offset that we acknowledge of $1.52 per shift for the 48 weeks where they would work.
PN575
Now some people work four shifts a week; some work five or eight per fortnight I should say. Some work 10 per fortnight, Monday to Friday workers. But we wanted to take you solely to the issue of new employees, so the research done is only in respect of those.
PN576
THE COMMISSIONER: Okay, right, thank you. Now before you call Mr Luddington, may I mark as an exhibit the outline of submissions of MSS Security.
PN577
MR LEVIN: Thank you, Commissioner.
THE COMMISSIONER: That's dated 17 February. I'm assuming there is no objection to that? No? Okay, I shall mark the outline of submissions of MSS Security dated 17 February 2017 as exhibit A2.
EXHIBIT #A2 OUTLINE OF SUBMISSIONS OF MSS SECURITY DATED 17/02/2017
PN579
MR LEVIN: Yes, Commissioner. Could I just indicate, just so that you know where I'm coming from?
PN580
THE COMMISSIONER: Yes.
PN581
MR LEVIN: Today, we don't we're confident in our evidence and submissions on the question of pre-approvals, so don't propose to make any further draw further evidence in that regard.
PN582
THE COMMISSIONER: Okay, yes.
PN583
MR LEVIN: That will be a matter for the Commission, of course. It was more on the question of BOOT for new employees that we wanted to address. I'm proposing not to take Mr Luddington through anything and so, if it would assist the Commission after he adopts the statement, or before, to adjourn for 15 minutes so that a read of that statement, so that the Commission could ask any questions arising, if that's fine. But I'm not proposing to duplicate what's said in there, by asking him questions.
PN584
THE COMMISSIONER: There's always a silver lining in being uncharacteristically late, Mr Levin. I had a chance to read the statement and so I do have a pile of questions, but I'm also conscious of the fact that Mr Findley has the ability to ask Mr Luddington questions about the pre-approval steps. As far as I'm concerned, Mr Findley can do that first while Mr Luddington is there, and then I brought my calculator down now that's a worry.
PN585
MR LEVIN: That's why I had my phone on, because that was my yes, we were still doing numbers. But perhaps if we could call Mr Luddington.
THE COMMISSIONER: That would be great, thank you.
<MATTHEW LUDDINGTON, AFFIRMED [10.34 AM]
EXAMINATION-IN-CHIEF BY MR LEVIN [10.34 AM]
PN587
THE COMMISSIONER: Please have a seat Mr Luddington.
PN588
MR LEVIN: Mr Luddington, can I ask you to restate for the record your name, position and business address?‑‑‑Matthew Luddington, HR/IR Manager for MSS Security and the address of the business is Level 3/650 Lorimer Street in Port Melbourne.
PN589
Can you confirm to Commissioner Cribb if you've made a statement in this matter filed with the Commission dated 17 February 2017 with a number of exhibits?‑‑‑I have.
PN590
Do you have a copy of that with you?‑‑‑I do.
PN591
Do you propose to adopt that as part of your evidence in this matter?‑‑‑I do.
PN592
I ask that be tendered.
PN593
THE COMMISSIONER: Yes, is there any objection to marking that first statement as an exhibit?
*** MATTHEW LUDDINGTON XN MR LEVIN
PN594
MR FINDLEY: No, Commissioner.
THE COMMISSIONER: Right, I shall mark the statement of Matthew Luddington dated 17 February 2017 with I think 17 attachments, as exhibit A3.
EXHIBIT #A3 WITNESS STATEMENT OF MATTHEW LUDDINGTON DATED 17/02/2017
PN596
MR LEVIN: If the Commission pleases. Mr Luddington, have you also prepared a further statement dated 14 March 2017?‑‑‑Yes, I have.
PN597
Do you have a copy in front of you?‑‑‑I do.
PN598
Before you adopt that, do you have some changes you want to make to that?‑‑‑Yes, Commissioner, there were two minor changes that I wanted to make for clarity. The first was in the first paragraph on page 1, we've stated 'extended span of night shift'.
PN599
THE COMMISSIONER: Yes?‑‑‑To clarify, it's not an extended span; it is a different span. The difference being that the night shift under the agreement starts from or 0630 is the cut-off and under the award it's 0600.
PN600
Right?‑‑‑The second correction - - -
PN601
MR LEVIN: Are you proposing to delete the word 'extended' and replace it with the word 'different'?‑‑‑Yes.
PN602
Thank you. What was the other one?‑‑‑The second correction I wish to make was under point 3. There I have stated, 'most employees under the agreement are level 4'. That is not correct. A significant number are level 4, but the table below is indicative and the differential between the award and the agreement is the same for a level 1 employee, a level 2 employee, a level 3, a level 4 employee.
PN603
Would you therefore like to simply strike out the words 'most employees under the agreement are level 4'?‑‑‑Yes.
PN604
Thank you. With those changes, do you adopt this statement as your further evidence in this matter?‑‑‑I do.
*** MATTHEW LUDDINGTON XN MR LEVIN
PN605
Thank you. If the Commission pleases, there aren't official exhibits, there are three spreadsheets attached, but ask that that be tendered, please Commissioner.
PN606
THE COMMISSIONER: Mr Kenchington-Evans, any objection to that being marked as an exhibit?
PN607
MR KENCHINGTON-EVANS: No, Commissioner.
THE COMMISSIONER: I shall mark the further statement of Matthew Luddington dated 14 March 2017 together with the change in the first paragraph under number one, and in the heading above the table in paragraph 3, and acknowledge that there are three rosters attached. All of that is exhibit A4.
EXHIBIT #A4 FURTHER STATEMENT OF MATTHEW LUDDINGTON DATED 14/03/2017
PN609
MR LEVIN: I have no further questions, thank you, Commissioner.
PN610
THE COMMISSIONER: Thank you Mr Levin. Mr Findley, would you like, I think it's probably to flow better if you'd like to ask your questions of Mr Luddington now. Is that okay, yes?
MR FINDLEY: That sounds good, thank you, Commissioner.
CROSS-EXAMINATION BY MR FINDLAY [10.38 AM]
PN612
MR FINDLAY: Just to jump into the ballot notice, at paragraph 2.5 of your F15 stat dec, you refer to your response in paragraph 2.4 and state four different independent methods of distribution, correct?‑‑‑I don't have that in front of me, but I believe that to be correct.
PN613
Can you read the second sentence - - -
PN614
MR LEVIN: He just mentioned he hasn't got it in front of him.
PN615
THE COMMISSIONER: Can hang on, I was trying to multi-task. It's the F17, or the F18? F17, because I've got a copy.
PN616
MR LEVIN: I can assist. I've got some.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN617
THE COMMISSIONER: Thank you.
PN618
MR LEVIN: I better just show Mr Findley what I'm handing up. This is the explanatory document. These are all things that you have a copy of and filed with the Commission. If I give him the bundle that way, if you've got any questions.
PN619
THE COMMISSIONER: Is that okay?
PN620
MR FINDLEY: Thank you. Mr Luddington, could you turn to your witness statement please?
PN621
THE COMMISSIONER: Which one the - - -
PN622
WITNESS: Sorry, am I referring to the F17?
PN623
MR FINDLEY: Yes.
PN624
THE COMMISSIONER: Hang on a second. Did you want the F17 or the witness statement?
PN625
MR FINDLEY: The F17, I just wanted him to acknowledge there was four methods of distribution.
PN626
THE COMMISSIONER: So, do one thing at a time Mr Findley. Just stick with the F17. Give Mr Luddington an opportunity to find it and then when you can see that he's found it, then go for it.
PN627
MR FINDLEY: Thank you?‑‑‑Sorry, could you repeat the section that you were referring to with the F17?
PN628
Yes, it's paragraph 2.5?‑‑‑Yes.
PN629
You refer back to paragraph 2.4 and state that there was four different independent methods of distribution?‑‑‑That's correct.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN630
Turning to your witness statement, I've tried to make it in order so there's not much jumping.
PN631
THE COMMISSIONER: Thank you.
PN632
WITNESS: Sorry, Mr Findley, the witness statement which witness statement?
PN633
THE COMMISSIONER: The first one.
PN634
MR FINDLEY: The first one?‑‑‑Okay.
PN635
THE COMMISSIONER: Because, I just forgot, Mr Luddington, Mr Findley doesn't have the most recent one from this morning?‑‑‑Certainly.
PN636
MR FINDLEY: Can you read the second sentence from paragraph 15?‑‑‑"Since my email to the site managers, I have made enquiries with a number of the site managers who received my email of 24 June 2016. I confirmed that the posting and distribution of the ballot notice and material did not occur at all sites by the start of the access period".
PN637
Would you say that your distribution via site managers was a reasonable step with reference to section 180(3) of the Act?‑‑‑I considered it to be 'a' reasonable step, yes.
PN638
But, just alone, just that method, would you say that that is a reasonable forgetting about the other three, would that alone be a reasonable step?‑‑‑It would be 'a' reasonable step, Commissioner.
PN639
But just alone, I'm not talking about the others 'a' reasonable step. Do you think that that's a reasonable step, just by itself?‑‑‑I consider it to be 'a' reasonable step, yes.
PN640
You posted it on the Friday, correct? It's much easier if I, instead of talking about the dates, we can look at the days of the week, because it's easier to understand. You posted it on the Friday, correct?‑‑‑Correct.
PN641
When do you think you'd reasonably expect that somebody would receive that letter in the mail?‑‑‑Sorry, are we talking about the mail distribution method?
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN642
Yes, when do you think an employee would receive that if it was posted on Friday?‑‑‑I would expect that to be received on either the Monday or the Tuesday of the following week.
PN643
Sure, so that sort of day two or three in the access period, correct?‑‑‑Correct.
PN644
You would concede that employees wouldn't receive that notice via post before the start of the access period?‑‑‑That's correct.
PN645
Can you read paragraph 16 of your witness statement?‑‑‑"I accept that the posting of the ballot notice and material on 24 June 2016 would not have reached employees by the start of the access period i.e. 25 June 2016".
PN646
Thank you. The distribution via site managers, would you say that that was a reasonable step?‑‑‑I consider it to be 'a' reasonable step, yes Commissioner.
PN647
The Deakin University Site Manager, he didn't inform his staff before the access period, correct?‑‑‑That is subsequently my understanding, yes.
PN648
How many people are employed at Deakin University, just roughly?‑‑‑I would say 50.
PN649
Are there any other sites that you're aware of that didn't receive the ballot notice via their site managers?‑‑‑There was one other site which who I subsequently found out had not had the notice distributed by the site manager.
PN650
What site was that?‑‑‑I believe that that was Monash, Caulfield.
PN651
How many employees would work there?‑‑‑Again, I would have to guess at maybe 16.
PN652
16? Can you confirm that all of the other sites received the ballot notice through their site managers by the start of the access period?‑‑‑Yes, that's the information that I have received, having subsequently asked the question.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN653
You've received it from somebody else? You can't confirm it yourself, but you've heard from somebody else that - - -?‑‑‑I have spoken to all of the site managers that are still employed and questioned them as to whether they posted the ballot notice and other information on the day that it was distributed to them, as I had directed them to do.
PN654
You stated at paragraph 18(b) of your witness statement that you emailed bargaining representatives ballot information, correct?‑‑‑Correct.
PN655
How many bargaining representatives were eligible to vote?‑‑‑I'm sorry?
PN656
The bargaining representatives were United Voice and myself?‑‑‑Correct.
PN657
There were no other bargaining representatives, correct?‑‑‑Correct.
PN658
How many people were eligible to vote that you sent that email to?‑‑‑Yourself.
PN659
Just me?‑‑‑Correct.
PN660
Out of the 697 eligible employees, you told just one person about the ballot in the required time by this method?‑‑‑By which by emailing the bargaining reps?
PN661
By emailing?‑‑‑Correct.
PN662
Was there an expectation for this employee to notify the remaining 696 employees of the ballot?‑‑‑No.
PN663
You talk about the document being uploaded to the employee portal. We'll talk about that. Can you please read out loud, paragraph 31 of your witness statement?‑‑‑"For example, Mr Findley signed an acknowledgement and acceptance of the standing instructions when he joined MSS. See attachment ML11".
PN664
Of the paragraphs surround that in the witness statement, if I can paraphrase you, you were saying that all employees signed the standing instructions which incorporates information about the employee portal, correct?‑‑‑Correct.
PN665
Your statement is telling the Commission that employees signed a document that mentions the employee portal, correct?‑‑‑Correct.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN666
So, all employees signed this document and in the document had the employee portal information?‑‑‑Correct.
PN667
Can you please turn to attachment 10 of your witness statement?‑‑‑No sorry, I don't have the attachments to my witness statement.
PN668
THE COMMISSIONER: Mr Levin, I can lend my folder.
PN669
MR LEVIN: Yes, I would be grateful, thank you Commissioner, otherwise I won't have a copy.
PN670
MR FINDLEY: You've got attachment 10?‑‑‑I do.
PN671
Is that the document that I signed?‑‑‑I believe that it is, yes.
PN672
So, I signed that document?‑‑‑Yes, I believe that to be true.
PN673
Was page 103 titled System Access in that document?‑‑‑Yes.
PN674
You're giving this statement of your own free will? You're happy to give this statement? You're not pressured to give this statement at all? Sounds like a weird question, but you're voluntarily giving this statement; you're not pressured by upper management to give this statement at all?‑‑‑I'm providing this statement of my own free will.
PN675
Can you confirm that page 103 is talking about system access and has no mention of an employee declaration or signature on that page?‑‑‑That is correct.
PN676
Can you turn to page 101 of that document?‑‑‑Yes.
PN677
What are the headings on that document, just the bold ones?‑‑‑Roles and Responsibilities; Employees; Transfer Locations and Classification.
PN678
Does it mention anything about employee declarations, that page?‑‑‑I do not believe that it does.
PN679
Can you please turn to attachment 11 of that?‑‑‑Yes.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN680
What is that page?‑‑‑That is the employee declaration page.
PN681
It is. What's the page number of that?‑‑‑101.
PN682
101. So, if the page is 101, and page 101 of the document you said I signed, in the attachment before that as something different, how do you explain that?‑‑‑The employee standing instructions are updated from time to time. The version that you signed is 2015. The version that is attached is 2016.
PN683
You said before that that was the instructions that I signed to. That's the testimony you gave just earlier?‑‑‑My understanding Mr Findley, is that you signed the employee standing instructions. We have attached the most up to date copy of the employee standing instructions.
PN684
But you said that the most up to date employee standing instructions, that was the document I signed. That's what you said earlier?‑‑‑That is correct.
PN685
So, again, looking at the page numbers it might be easier if you go to the table of contents.
PN686
THE COMMISSIONER: Mr Findley, can I translate I think. Mr Luddington, what I think Mr and if I'm not asking the right question, let me know. But as I understand it, this is what you're getting at. You said earlier that that attachment was the document that Mr Findley signed?‑‑‑Correct.
PN687
What I've heard you say is that that document is actually the 2016 version of the 2015 one which Mr Findley did sign?‑‑‑That is correct.
PN688
That is not the one that is in there, and the one that you said he signed, so - - -?‑‑‑That is correct. I accept that, Commissioner.
PN689
I think that's what you're after, wasn't it?
PN690
MR FINDLEY: Yes, thank you, Commissioner.
PN691
Could I get you to turn to page 11 of the standing instructions?‑‑‑Yes.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN692
Can you see 7.6 Roles and responsibilities?‑‑‑Yes I can.
PN693
Could you read on from there, including the page numbers, just down to the bottom?‑‑‑"7.6 Roles and Responsibilities. 7.6.1 Employees, 7.6.2 Transfer Location and Classification. Sorry, did you want the page numbers as well, Mr Findley?
PN694
Yes?‑‑‑All of those were page 101. Systems Access 103, Employee Declaration 104.
PN695
Mr Luddington, if I signed page 101 in that document you exhibited, System Access wasn't in the document that I actually signed, was it?‑‑‑I believe that it was.
PN696
Can you say to a certainty that it was?‑‑‑Without having the 2015 standing instructions in front of me, I cannot.
PN697
MR LEVIN: I have to object to the question. The proper way to put it is actually show the person. I don't think it's appropriate that and if he has it, it should have been shown originally. It's not a test of memory; that's not how things are done.
PN698
MR FINDLEY: Commissioner, I've been told that I can't produce any more documents any more to the Commission.
PN699
THE COMMISSIONER: That's to the Commission. But you're asking the witness a question, and you can show the witness.
PN700
MR FINDLEY: Thank you. I have the document here.
PN701
THE COMMISSIONER: Excellent, thank you. Mr Findlay, what you're saying is that that's actually a copy of the document that you signed at the time?
PN702
MR FINDLEY: Correct, yes, Commissioner. If that's doubted by the court, Commissioner, I'm happy to open up my email in front of you so you can see that no pages were taken out of that?‑‑‑Commissioner, I do not accept this. The copy that Mr Findley has provided me is 2012. Somebody else's signature appears to have been whited out. The employee declaration is page number 96 and Mr Findley has attached his own signature with the 2015 date as page 101. I do not accept that that is the document that Mr Findley signed.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN703
Commissioner, what he's saying is the page numbers are out of sync. What happened is, the HR, Lauren Stonehouse sent me the employee instructions, which is there, and then a separate page was attached within the documents, tax file number, and I had to sign that I received the instructions. Those are the instructions that I received. I can open up my email to prove that those are the ones that I received.
PN704
THE COMMISSIONER: Can I ask a question Mr Findley? The purpose of this line of questioning is what? What's submissions are you going to be making a bit later about it.
PN705
MR FINDLEY: Yes, thank you. The employee portal is, I believe, their best chance at satisfying section 180(3) of the Act. What MSS are arguing is that everybody sign something stating that they understood that the employee portal was there. But what I'm saying is that the document that I signed and everybody else before me, didn't nothing was about the employee portal. That was added probably in the last year, because I signed that contract in January and it wasn't in there. I think that many other employees would have signed it.
PN706
THE COMMISSIONER: All right. Thank you.
PN707
MR FINDLEY: Thank you. You refute that that's the document MSS sent me?‑‑‑It does not appear to be the document. As I said Mr Findley, it appears that somebody else's date, name and signature have been whited out.
PN708
That's something you don't think MSS would send to me?‑‑‑That I would think not.
PN709
I'll have to work that out another way.
PN710
THE COMMISSIONER: I'm assuming Mr Luddington, that it's not part of your responsibility to actually send those documents out to people?‑‑‑No, it's not, Commissioner.
PN711
MR FINDLEY: It came from another member. So, in that document that I produced to you, it doesn't member anything about the employee portal, does it?‑‑‑That's correct.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN712
The page is completely missing. Could you check from the table of contents please? In the table of contents does it mention system access, as it does with the agreement that you put in?‑‑‑No, it does not.
PN713
It's not a page that's missing, it wasn't in fact in that document at all?‑‑‑That is correct.
PN714
It wasn't in that version of 2012, which I was given in 2016. When was the agreement updated to slide in that system access clause?‑‑‑I don't know that, Commissioner.
PN715
You've said some employees have been working for your company for 25 years?‑‑‑I accept that.
PN716
And many people beyond 2012 worst case scenario, 2012. How many employees do you think were working with MSS that are currently working with MSS before 2012? Just a stab?‑‑‑I can guess. I would say half, half of the employees covered by the agreement, so that would be approximately 350.
PN717
Thank you. So, you would concede that half didn't sign the standing instructions which had the employee portal clause in it?
PN718
MR LEVIN: Sorry, I might have to object to that. The witness has said he doesn't know. So, asking it again and again, I mean there would have been a proper method to have dealt with this so that the proper documentation could have been here for the questions to be asked. It's also objectionable because notwithstanding the lack of ability to submit further evidence, we could have been informed of the question. There's nothing to stop him asking me or informing me to say I need your client to be familiar with, or I need your client to have access to if the Commission pleases.
PN719
MR FINDLEY: Commissioner, less than a week ago, I received Matts 250-page affidavit, their witness statement sorry I mean their submissions came a day later. To be honest, I saw that clause about 2 am this morning, doing everything at the last minute, as usual. What can I say. Mr Levin is saying that I effectively put it on at the last minute.
PN720
THE COMMISSIONER: Mr Findley, I think it is what it is, at this point in time, right. It's clear to me that Mr Luddington is hypothesising that's with great respect, sorry, because he's not responsible for this bit of the company's operations and he's doing his best to guess, but does that make sense.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN721
MR FINDLEY: Okay.
PN722
THE COMMISSIONER: Yes, I'm not going to bet my life on his answers.
PN723
MR FINDLEY: I understand that that could go either way 20 per cent. I understand there could be a yes, thank you.
PN724
Let us assume that all employees did sign the document of attachment 10. Where does it tell employees that they must regularly check the portal?‑‑‑I do not believe that it does.
PN725
It simply says I'll let you turn to it?‑‑‑Yes.
PN726
It simply says you can access the portal; this is how you do it. But it doesn't actually create an obligation for employees to check it regularly?‑‑‑No, it does not create an obligation.
PN727
The notice was put on the staff portal on 24 June, correct?‑‑‑That is correct.
PN728
The access periods start on 25 June, correct?‑‑‑That is also correct.
PN729
Within 24 hours, you would expect an employee to access that portal?‑‑‑They had access to that portal within that period.
PN730
Could you reasonably expect that employee would check it in that small 24-hour time frame?‑‑‑I believe that they could.
PN731
But would they; would they likely do it?‑‑‑I can't speak to what 700 employees would or may do.
PN732
Well, we'll move on, sorry. Without any obligation to regularly check the portal, and evidence in my affidavit that staff do not regularly access it, why would they look there?‑‑‑They may check the employee portal for a number of reasons.
PN733
What reasons are they?‑‑‑That's for access to payroll, for access to the training system, access for staff notifications. It serves as a notice board and information is regularly posted there.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN734
We'll touch on all of those points. So, training. You've seen my affidavit?‑‑‑I have seen your affidavit.
PN735
Isn't it true that many site managers are encouraging employees to do their training online, and they're still not doing it, some 20 days after they've been told to my managers?‑‑‑It is correct that not all employees are 100 per cent up to date with their online training.
PN736
Training, because of that, or maybe not because of that, but subsequently, training has been given to sites in hard copy so they don't have to go on the portal. Is that correct?‑‑‑I haven't been responsible for that.
PN737
You've seen my affidavit and the proof that I have in it. Would you agree with what I've submitted?‑‑‑I believe that it may be true, that some training is provided to some sites in hard copy.
PN738
The notices. The notices are sent to site emails regularly, are they not?‑‑‑Correct.
PN739
Important notices. So, they wouldn't access the employee portal to find a notice that they wouldn't have by other means?‑‑‑I think the point Mr Findley is that the company adopts a multi-pronged approach at communicating important information, as we did with the notice for the enterprise agreement.
PN740
They wouldn't be required to look online in fear that they'll miss out on something because there's a multi-pronged approach. There's other avenues, correct?‑‑‑I would hope that they wouldn't be looking at anything in fear.
PN741
Could you please read paragraph 19 of your witness statement?‑‑‑
PN742
THE COMMISSIONER: Just before you do that, could I ask a question because I think that Mr Findley is just changing theme. How are people notified of their shifts? Is that through the portal, or is it - - -?‑‑‑No, it's not. Their shifts are notified to them again, it would vary from site to site, Commissioner, sometimes it would be posted at the site. That would occur on bigger sites. On smaller sites or where there is an irregular roster, a roster delivery asserted to every coordinator, may contact them directly to inform them of their shifts for the coming week.
PN743
Thank you.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN744
MR FINDLEY: Thank you, Commissioner. I guess being an important point to go back on the methods or the reasons why people would access the portal. We've just spoken about training and notices, what were the other reasons?‑‑‑To access the payroll system.
PN745
THE COMMISSIONER: I think you've got a different view about that.
PN746
MR FINDLEY: Yes, so we'll cover that. So, the payroll system, it can be accessed by a third-party site, correct?‑‑‑Yes, that's correct.
PN747
Is there any other reason that an employee would go onto the employee portal, apart from those three reasons?‑‑‑Sorry, so what have we covered off? The payroll, the training, notices. I believe that those would be the main reasons. There would be other things in terms of employment opportunities, general company information, employee benefits, those kinds of things that I would accept that an employee is unlikely to be checking the portal on a daily basis for that kind of information.
PN748
You said that you wouldn't expect the employees to check on a daily basis, but to meet the requirements of section 180(3).
PN749
MR LEVIN: Sorry, he didn't say that. He said for those purposes.
PN750
MR FINDLEY: Sorry?
PN751
MR LEVIN: The ones he just said.
PN752
MR FINDLEY: To satisfy section 180(3), they didn't access it for those purposes, the important purposes that you mentioned, that 24-hour period, but because of the late timing of you putting it on the portal, that's what you'd have the employees do. They would need to access the portal within 24 hours, or there would have to be a reasonable expectation that they would access the portal within that 24 hours to see the ballot notice before the start of the access period.
PN753
MR LEVIN: I'm sorry, I have to object. There is a big mix of - - -
PN754
THE COMMISSIONER: We're in submission territory. Submission territory. You've just given me some of your submissions.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN755
MR FINDLEY: Okay, sorry, I'll move on.
PN756
THE COMMISSIONER: That's all right. Questions.
PN757
MR FINDLEY: Could you please read paragraph 19 of your witness statement?‑‑‑"Further, I sent four text messages on 4, 6, 8 and 9 July 2016 to remind employees to cast their votes on the 2016 agreement. See attachment ML8".
PN758
Those text messages were sent after the vote began, correct?‑‑‑That is correct.
PN759
You can easily send text messages to employees, correct?‑‑‑That is correct.
PN760
You send birthday messages telling people not to come to work and congratulating them on work anniversaries, correct?‑‑‑That is correct.
PN761
Why couldn't you sent a text message to employees telling them to look on the portal?‑‑‑Quite simply, Commissioner, this was an oversight. It wasn't something that had occurred to me until my general manager said to me, why don't you send text messages to encourage them to vote. With retrospect, it's a very easy thing to look back with retrospect and say, well of course, we should have sent text messages as soon as we posted something on the portal. I have to concede that we did not do that.
PN762
With reference to paragraph 33 of your witness statement, you state that employees used the portal on a regular basis?‑‑‑Correct.
PN763
But what you said just before, they don't actually look at it on a regular basis, or definitely not within that 24-hour period for the main reasons that they would look at it, correct?‑‑‑Well, I would an employee access the employee portal every 24 hours? I would have to say it's possible that they would not. Do I consider that they would access the employee portal on a regular basis, yes, absolutely.
PN764
How often is regular?‑‑‑I would expect at least once a week.
PN765
How do you explain that training sometimes lapsed more than three weeks and people don't complete that, being that that's on the employee portal?‑‑‑Because sometimes employees don't do as we would like them to do.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN766
You would like them to do, but there's nothing instructing them to do it, is there?‑‑‑No.
PN767
No, so there's nothing in the standing instructions to tell them. Yes, we've covered that. You've read my affidavit showing that training is now being distributed by hard copy as employees are not completing training online, even when management tells them to. There is also evidence in my affidavit that important notices are emailed to sites. I've given evidence that employees access pay slips via third party sites. Do you have any proof that employees regularly access that site?‑‑‑Which site? The employee portal?
PN768
The portal, in general?‑‑‑Only hearsay evidence, Commissioner, of what employees have told me. I do not have, and it is not possible to access information that specifically says which employees have accessed the site the employee portal site.
PN769
Mr Luddington, to be realistic, if you, being the State HR Manager, asked an employee, do you go on the portal regularly, don't you think they would say yes, to the State HR Manager?‑‑‑I can't answer for what other people would think or do.
PN770
You say that employees regularly access the site but yet you don't have any proof of that. It's rather unsubstantiated, wouldn't you say?‑‑‑Well, employees certainly access the site.
PN771
But you can't prove that they regularly access the site, can you?‑‑‑I cannot prove the frequency with which every employee accesses the employee portal.
PN772
Thank you. If my manager put the ballot notice in a bottom draw at work and didn't tell me it was there, do you think that would be a reasonable step to inform me?
PN773
MR LEVIN: I'm not sure that's going to assist you in forming a view after that question.
PN774
MR FINDLEY: I think that it will, Commissioner.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN775
MR LEVIN: Hypotheticals about putting things in a bottom draw, I think is going a little far. I'm not sure how an answer to that can assist you. A number of hypotheticals about other things that weren't done and aren't in issue here, is not going to assist, in my submissions, and therefore that question shouldn't be allowed.
PN776
MR FINDLEY: Your Honour, I think Mr Levin can see where that's going. I would say that it is relevant. I'll quickly if you don't think it is relevant, you can just ignore it, but I'd still like to ask the question, because it leads into the second one.
PN777
THE COMMISSIONER: Well, hold on a second. Hypotheticals don't help, because what the Commission, in terms of doing its job, as I said to you before, it's what is. It's not the retrospect with 20:20 hindsight that Mr Luddington talked about or the suppose this situation, you know, what do you think sort of questions, that you've been putting Mr Findley. It's really a question I've got to make up my own mind, about whether reasonable steps were taken, okay? That's my job.
PN778
MR FINDLEY: Yes, Commissioner. I understand I'll skip that question and jump to part 2. I put it to you that you did the electronic equivalent of putting it in the bottom draw and not telling anyone it was there?‑‑‑I disagree.
PN779
You disagree. If you upload something to cyberspace and not tell people it was there, why would they go on let me rephrase. Why would they go on the employee portal, if they didn't have a reason to go on?‑‑‑For the reasons we have discussed.
PN780
But yes, we're going around in the same circle.
PN781
Paraphrasing you at paragraph 22 of your witness statement, you said you notified employees in a multitude of ways. Are you saying that four or subjectively, ineffective methods of notification is an appropriate - - -
PN782
THE COMMISSIONER: Hang on, hang on, hang on.
PN783
MR LEVIN: I think the question supposes an answer. I think it could be rephrased, please.
PN784
THE COMMISSIONER: Yes.
PN785
MR LEVIN: If it didn't talk about pre-supposing that it was four ineffective ways.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN786
MR FINDLEY: Sorry, I'll rephrase this one. Let's say that the Commissioner reached the conclusion that the four ways were ineffective, would you say that the four ineffective ways would combine to reach reasonable steps to concluding that section 183(3) was complied with?‑‑‑My understanding of the Act, is that it talks about reasonable steps and I believe that the steps that we took, were reasonable.
PN787
You're saying that if it is ruled that four ineffective ways that the four ways were ineffective, you're saying that the four ways combined then makes it reasonable steps?
PN788
THE COMMISSIONER: I don't think Mr Luddington accepts your assertion that there were four ineffective ways. Because his evidence is that there were a multitude of ways and in addition to that, the voting period was nine days. That's what I understand his evidence to be in paragraph 22, which is the one that you're asking him about.
PN789
Mr Luddington's been consistent and has been clear that he believes that the company has complied with the Act.
PN790
MR FINDLEY: Okay, thank you, Commissioner.
PN791
I put it to you that more people would have voted on the agreement, if the information was given on time?‑‑‑I do not accept that. It's my position it's the company's position that we wanted as many people as possible to vote in this agreement. Hence, the four text messages that were sent on 4, 6, 8 and 9th, all encouraging employees to cast their vote. All informing them of the information, where to get it, looking to highlight if there were any issues, for them to be addressed. As I said previously, Commissioner - - -
PN792
You've answered the question.
PN793
You state about 80 per cent of people voted yes?‑‑‑That's correct.
PN794
But that's 80 per cent of the 46 per cent that actually voted?‑‑‑That's correct.
PN795
About only 37 per cent actual said yes to the agreement?‑‑‑That's correct.
PN796
Do you think that the delay in the ballot notice or the distribution method would have affected that vote?‑‑‑No, I don't. And the reason that I think that - - -
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN797
Just a short answer, yes. Mr Levin can - - -
PN798
MR LEVIN: If he wants to answer a question, Commissioner, he's allowed. Not cut off.
PN799
MR FINDLEY: Well, it will go on forever if we let him expand on everything.
PN800
THE COMMISSIONER: Mr Findley, pot calling kettle black.
PN801
MR FINDLEY: Yes, I understand.
PN802
MR LEVIN: If the witness could be allowed to complete his answer.
PN803
WITNESS: Thank you. The reason that I think that is that I looked at the number of employees that voted on the previous agreement and the numbers were very similar, albeit with the previous agreement the actual amount the number of employees that voted yes was smaller.
PN804
THE COMMISSIONER: As in, as opposed to a percentage?‑‑‑Correct. But overall, a similar number of employees voted on both this agreement and on the previous agreement.
PN805
A similar percentage of the employees to be covered by the agreement?‑‑‑Correct. The difference being on this occasion - - -
PN806
You've got more employees now, than previously?‑‑‑Correct. Thank you.
PN807
MR FINDLEY: We'll move on to the explanation of the terms. At paragraph 2.6 of your F17?‑‑‑Yes, paragraph 2.7 of my F17.
PN808
THE COMMISSIONER: 2.6?
PN809
MR FINDLEY: 2.6, Commissioner?‑‑‑2.6, apologies.
PN810
THE COMMISSIONER: Bottom of the page.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN811
MR FINDLEY: You don't need to flick to it, but I'll say end paragraph 35 of your witness statement, you said you explained the terms and effects of the agreement via two documents. The terms and effects document and the changes document, correct?‑‑‑Correct.
PN812
Can you please turn to attachment 13 of your witness statement? That explanatory document?‑‑‑Yes, I have that.
PN813
THE COMMISSIONER: Yes, that one.
PN814
MR FINDLEY: Did you explain the effects of the VOT term at clause 25.1, specifically, that employees will receive a flat rate of 19 per cent in lieu of 50 percent for the first two hours and 100 per cent thereafter?
PN815
MR LEVIN: If we're going to want to cut this time down, I think we have to, at some point, respectfully Commissioner, indicate to Mr Findley that asking questions that are answered by looking at the document, is an objectionable question. So, does it say anything about this? Well, it's obvious from reading the document, it's doesn't and that's a matter for submissions. Pointing out all the things it doesn't say, is what I'm fearful we're about to now hear. The document speaks for itself.
PN816
So, in answer by Mr Luddington each time, we will know it doesn't say that. So, it's not a relevant question, because it doesn't advance the question before you, Commissioner.
PN817
THE COMMISSIONER: Okay, but I think that pre-supposes that there's agreement about the facts. I mean, to me, it's either is or it isn't, but I think Mr Findley is pre-supposing that there isn't that agreement about the facts. Am I right?
PN818
MR FINDLEY: Yes, Commissioner.
PN819
THE COMMISSIONER: And that's why he's going to take Mr Luddington through it, I suspect.
PN820
MR LEVIN: I'll hold off on my objection until we see a few more questions. Thank you, Commissioner.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN821
THE COMMISSIONER: No, you're both right. It's maybe a simpler question do you have Mr Findley, a list of the things that you believe that you're about to ask Mr Luddington about? About things that you say are missing.
PN822
MR FINDLEY: I've only got a very few. I'm only going to point out the big ones. I've not going through the 30 odd.
PN823
THE COMMISSIONER: Yes, but so you've got what they are? Why don't you say them, just list them and then Mr Levin can either say it's contested or it's not. Because if it's not contested and it's factual then that peg's in the ground. You don't have to torture Mr Luddington or me. Yes, is that okay? It will get you to the same place, it's just quicker.
PN824
MR FINDLEY: That sounds good, thank you.
PN825
THE COMMISSIONER: All right, so, list them out.
PN826
MR FINDLEY: The VOT clause, so we're just talking about the explanatory document. The VOT clause, the night time penalties and casual loading. Would you like me to point out the things, well it's quick anyway? The changes document. I'll be asking Mr Luddington again about the omission of the VOT change and the sign-on bonus.
PN827
MR LEVIN: I've no objections to questions about what's there or about why something isn't there. If it's simply asking a question of can you read it out and that confirms that it doesn't say this. That's what I'm objecting to.
PN828
MR FINDLEY: As you said, Commissioner, I'd like to maybe it does say in a convoluted way, or a way that I didn't see, that it does highlight the VOT so it actually does explain it. The law is open to interpretation and so is the documents, and how I see it is, I think it's important that Matt says if it's in there or not so we could actually get the fact into court, whether it's there or not. Because the term it mightn't say it explicitly, but Matt might believe that it's implied in another way. So, I think that it's important for the court to hear. It's only five points across those two documents and I'll be making submissions on those points. I think that it's relevant.
PN829
THE COMMISSIONER: Okay.
PN830
MR FINDLEY: Thank you, Commissioner.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN831
I'll just ask that again. Did you explain the effects of the VOT term at clause 25.1, specifically that employees will receive a flat rate of 19 per cent, in lieu of 50 per cent for the first two hours and 100 per cent thereafter?‑‑‑Not in those terms, no.
PN832
In any terms at all?‑‑‑Well, yes, we have explained it in terms that we've explained the VOT is an option. We've explained that - - -
PN833
Not in that document though.
PN834
THE COMMISSIONER: Hang on, which one are we talking about? The explanatory?
PN835
MR FINDLEY: The explanatory document, Commissioner. In this explanatory document, did you tell employees that in lieu of 50 per cent, 100 per cent loading, that they're only getting 19 per cent?‑‑‑No.
PN836
Thank you. With reference to your hearsay statement at paragraph 54 of your witness statement, you state than an employee works on average a 129 hours per year - - -
PN837
MR LEVIN: Sorry, I wonder if you could just let us get to it.
PN838
THE COMMISSIONER: Hang on, hang on.
PN839
MR FINDLEY: Sorry.
PN840
THE COMMISSIONER: Have you got paragraph 54?‑‑‑I do.
PN841
Thank you, Mr Findley.
PN842
MR FINDLEY: At paragraph 54 of your witness statement, you state that an employee works an average of 129 hours per year?‑‑‑Correct.
PN843
Somebody else told you that?‑‑‑The Business Support Manager who has the access to those figures provided me with that information and I consider that to be accurate and far more accurate than I would be able to decipher for myself.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN844
Your Honour, I'd just like to point out that that statement is hearsay.
PN845
THE COMMISSIONER: Mr Findley, that's very kind of you to point it out, but if there was no hearsay allowed in the Fair Work Commission, it would be a very quiet place and it's the weight that it's given. Okay, we're not a court.
PN846
MR FINDLEY: I'll move on, thank you.
PN847
You state than an employee works 129 hours on average per year, correct?‑‑‑Of VOT?
PN848
Yes?‑‑‑Correct.
PN849
Some work no VOT; others much more. Is that a fair statement?‑‑‑That's possible.
PN850
Would you agree that if the average person would be subject to a flat rate of 19 per cent in lieu of 50 per cent and 100 per cent loading, that would be an important factor in their decision? Just yes or no?‑‑‑Mr Findley, I think you're failing to make note of the fact that VOT is only applicable to existing employees.
PN851
Applicable to existing employees. Would you say that it's an important factor that you're cutting their VOT rates from 50 and 100 per cent to 19 per cent?‑‑‑Sorry, an important factor in what?
PN852
Important factor in their decision whether or not to agree to approve the agreement or vote yes for the agreement?
PN853
THE COMMISSIONER: Okay, but hold on. Hang on a second. This document explains the terms and the effect of the terms, right?
PN854
MR FINDLEY: Yes, Commissioner.
PN855
THE COMMISSIONER: So, to me what that means is that I, as an employee, are given a document which explains to me what the new agreement means and the effect of those terms, if there's been a change, right?
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN856
MR FINDLEY: Yes, Commissioner.
PN857
THE COMMISSIONER: I don't think the VOT has changed in this agreement, versus the last one, unless I've got the wrong end of the pineapple?‑‑‑That's correct, Commissioner.
PN858
MR FINDLEY: It has, it has absolutely. The VOT rate, they've dropped it 19 per cent in this agreement. In the old agreement, they paid people the 50 per cent and 100 per cent?‑‑‑Commissioner, that simply is not correct.
PN859
THE COMMISSIONER: Are you trying to say, Mr Findley, that in the 2011 agreement, that the VOT clause in that is substantially different?
PN860
MR FINDLEY: Yes, I'll to review that. Matt seems pretty certain on that one. That's my take on it, that the agreement that we're on now, the 2011 agreement allows the VOT rate for 50 per cent and 100 per cent loading, but it was only changed to 19 per cent - - -
PN861
MR LEVIN: It might be appropriate, seeing as Mr Findley is not experienced, that perhaps we should let the witness see the two documents.
PN862
THE COMMISSIONER: Yes, I'm trying to find I did have the 2011 one, but I'm not sure if I've got it still.
PN863
WITNESS: I am quite certain the VOT rates have not changed.
PN864
THE COMMISSIONER: I understand that. I don't have the 2011 on me, do you Mr does anybody?
PN865
MR FINDLEY: I have Commissioner.
PN866
THE COMMISSIONER: Good. Could you tell me what the VOT clause says please. Do you want to read it to me, please?
PN867
MR FINDLEY: Yes, Commissioner.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN868
Voluntary Overtime this clause 25.1 shall only apply to existing employees of the company at the counting of the vote to approve the enterprise agreement and who are being paid the rates contained in schedule B and E of this agreement.
PN869
Voluntary overtime shall be paid at the rates of pay specified in the table schedule B to E VOT rates plus any shift, weekend, public holiday, penalty as contained in the tables which are applicable.
PN870
So, it talks about schedules B to E.
PN871
THE COMMISSIONER: Yes. What rate is it set out? What rate does schedule B set it out as?
PN872
MR FINDLEY: Actually I think I made a mistake. He was right.
PN873
SPEAKER: Yes.
PN874
MR FINDLEY: That is - I made a mistake. My apologies. To explain that effects - this, Commissioner, will seem - I'll have to say the pretence of why I'm asking this question is I'll be later making submissions that MSS have to explain terms as compared to the award. I'll be citing two Full Bench decisions which support that, so this question is important for those submissions.
PN875
THE COMMISSIONER: I can't see why, but anyway, I can't read your mind.
PN876
MR FINDLEY: Yes, Commissioner. Putting that loss in monetary terms, 19 per cent to the 50 per cent and 100 per cent that's allowed in the award, employees tend to lose between $822 and $2150 per year. Would you agree that this is significant?
PN877
MR LEVIN: I'm sorry - again - someone needs to put that question so that the answer is an informal one, rather than: I don't know because I don't understand the figures, is that the foundation for the question, i.e. the figures have to be shown first, and then the question answered.
PN878
MR FINDLEY: Thank you. I'm still learning.
PN879
THE COMMISSIONER: You need - it's called - you just put an assertion that all the witness can do is go, where do those figures come from; I don't know.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN880
MR FINDLEY: Yes, Commissioner.
PN881
THE COMMISSIONER: To be fair, you have to explain it.
PN882
MR FINDLEY: Sure. If I just say an amount of $800, would you say that that is a significant amount to a security guard?
PN883
THE COMMISSIONER: Hang on, hang on. Mr Findley, you're going to have to explain how you got the $800.
PN884
MR FINDLEY: Yes, Commissioner.
PN885
THE COMMISSIONER: And then, with great respect to Mr Luddington, whether he thinks it's a lot or not doesn't assist me.
PN886
MR FINDLEY: Okay, sorry. I'll explain. So that figure, $822, how I worked that out is, you said that an average employee works 129 hours per year?‑‑‑Of the 80?
PN887
Of the 80, yes. So the difference between the 19 per cent and the 50 per cent loading is $822, but let's say that's the best case scenario - - -
PN888
THE COMMISSIONER: Hang on a sec.
PN889
MR LEVIN: I'm sorry, I'm already lost, and I'm writing it down at the time. So the 19 per cent from where, and the 50 per cent from where, would - - -?
PN890
MR FINDLEY: Is the 19 per cent the VOT rate? That's the loading given to somebody that is a casual under the new agreement?‑‑‑The VOT rates are stipulated in the agreement, and I understand that they equate to approximately 19 per cent of the - an additional 19 per cent of the base rate, that is correct.
PN891
And the award equivalent, they would get 50 per cent for the first two hours and then 100 per cent thereafter, correct?
PN892
THE COMMISSIONER: We're talking overtime?‑‑‑Yes.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN893
MR FINDLEY: Of VOT, yes?‑‑‑On a week day and on a Saturday, that's correct.
PN894
How I work that out is, based on a level 1 security guard, 129 hours with a loading of 19 per cent, then I took that away from 129 hours with a loading of 50 per cent, so that is the best case scenario for employees that they only lose $822, but if we're to go off 100 per cent, which is the worst case scenario, based on 129 hours is $2150?
PN895
MR LEVIN: Perhaps I can help this. We will concede that if one looks in isolation alone at the VOT clause that there are scenarios that one could come up with where the amount under the award would be, if worked as overtime is different than if that is worked as voluntary overtime under this enterprise agreement. So it's conceded.
PN896
THE COMMISSIONER: Thank you.
PN897
MR FINDLEY: In other words, any hour - one hour of overtime - - -
PN898
MR LEVIN: I'm sorry, Mr Findley is now making submissions.
PN899
THE COMMISSIONER: Yes, you are.
PN900
MR FINDLEY: Okay.
PN901
THE COMMISSIONER: I did understand what you were trying to get at, and I understood what Mr Levin was saying. It's a question for Mr Luddington that we're doing now.
PN902
MR FINDLEY: Thank you. So with all the marked considered, would you agree that $800 is a lot of money to a security guard?
PN903
THE COMMISSIONER: Actually, Mr Findley, that doesn't help me fulfil my statutory obligation. With great respect to the witness, what he thinks I may or may not - I may agree, I may disagree, but how does it help me in the job I've got to do?
PN904
MR FINDLEY: Okay, I think I've got it now.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN905
THE COMMISSIONER: Good.
PN906
MR FINDLEY: Thank you. You mentioned in the exposure document that ordinary overtime, that is, ordinary overtime that is forced on an employee, provides higher than award rates, however, omit the significant loss in VOT?
PN907
MR LEVIN: Excuse me, I wonder if we're talking about paragraph 56. It would assist if each time you say, I want to talk about paragraph number, and then everyone can get to it, and then you might ask your question.
PN908
THE COMMISSIONER: Yes.
PN909
MR LEVIN: And I think it's 56 you might be talking about.
PN910
MR FINDLEY: Thanks.
PN911
THE COMMISSIONER: Okay. I was still on the explanatory document.
PN912
MR LEVIN: Is it 56 of the statement of Matthew Luddington that you are trying to address?
PN913
MR FINDLEY: Yes, it is. It's sort of 55 onwards, sort of the next three paragraphs.
PN914
THE COMMISSIONER: Thank you.
PN915
MR LEVIN: I wonder if the witness could be given a chance to read 55, 56 and 57 perhaps?
PN916
THE COMMISSIONER: Good? Okay. Mr Findley?
PN917
MR FINDLEY: With reference to that part, and if you could turn to the explanatory document exhibited to your affidavit?‑‑‑Yes.
PN918
Clause 25?‑‑‑Yes.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN919
You explain voluntary overtime?‑‑‑Yes.
PN920
And then at clause 25.2 you explain ordinary overtime?‑‑‑Correct.
PN921
In the ordinary overtime, you stated that the Friday will be paid at half of the first two hours and double time thereafter. Saturday overtime is double time, which is 50 per cent more than the award, correct?‑‑‑Correct.
PN922
And Sunday, which is again 50 per cent more than the award?‑‑‑Correct.
PN923
So in the voluntary overtime, why wouldn't you tell employees in the reverse? Why wouldn't you tell employees that instead of getting 50 per cent and 100 per cent loading that they'll only be getting 19 per cent?‑‑‑Voluntary overtime by its very nature is voluntary. Employees that do not volunteer to work overtime and are compelled to work overtime are paid at the overtime rates, which is the 50 per cent, the double time and those kinds of things. In terms of the explanatory document, VOT was established in the previous agreement. I understood it to be understood by employees to whom it applied, and we have provided an explanation of ordinary overtime as well. In terms of explaining VOT and OT, I consider what is in the explanatory document to be sufficient.
PN924
But in that explanatory clause, you didn't explain at all that you reduce the - - -
PN925
MR LEVIN: I'm sorry, again, I object because it's not a relevant question, because it won't assist you, Commissioner, in determining - this is almost like a debate. I'm trying to get to Mr Findley's thinking so it can help future questions, because I'd submit - and I'm addressing myself a little bit to my friend here - that where Mr Findley wants to identify for you what he thinks it should have said, and says to you, well that means that it's not an explanation of the terms and their effect, that's a matter for you. Even if Mr Luddington agreed, you could disagree. It's not going to help you for Mr Findley to ask a series of questions which are a debate that aren't on fact; they're just on submission. I would submit that it doesn't include this and it should; for example, you put it in in one part and you didn't put it in in another. He can ask, you didn't put this in, why, and the answer, which we just heard was because I think that that's explaining the terms and their effect. After that it's Mr Findley who then submits to you later why he thinks that's not meeting the requirement. And we've understood that he's going to be saying that an explanation of the terms and their effect, he's going to say, should include the difference with the award. We understand that. So that's the basis for my objection to that question on relevance and hopefully assist Mr Findley to illicit facts, not opinions, as to reasonable, which is the decision for the Commissioner.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN926
MR FINDLEY: Yes. I'm sorry to ask the questions a lot as the questions that I asked is my fault, but if I ask the questions, can I say to Matt yes or no? Because as soon he goes on and expands, then that's opinion, and I really just want to ask him simple questions, yes or no.
PN927
THE COMMISSIONER: But the question that you asked him was an opinion question.
PN928
MR FINDLEY: I'll limit it to yes or no.
PN929
THE COMMISSIONER: Well, no, that's what the courts do. For cross, technically as I understand it - I'm not a lawyer - but as I understand it, in the courts there is the ability to have answers to questions that are yes or no on cross. It doesn't apply here.
PN930
MR FINDLEY: Okay. Thank you, Commissioner. I'd like to ask two questions, and hopefully they're short and it will prove one point that I'll make later in my submissions.
PN931
THE COMMISSIONER: That's actually the point of what Mr Levin was asking, was trying to explain to you. If what you're asking is Mr Luddington, his view about a fact, and you have a contrary view - I mean, we're all clear what it is - - -
PN932
MR FINDLEY: I won't ask that question.
PN933
THE COMMISSIONER: It's not going to take us anywhere. It'll just make Mr Levin tired, because he'll have to keep jumping up and down.
PN934
MR FINDLEY: Yes, I understand. I'll ask a direct fact, no opinion.
PN935
THE COMMISSIONER: Done.
PN936
MR FINDLEY: Does clause 25.2 state that employees will get Saturday overtime at double time, and time‑and‑a‑half for Sunday?‑‑‑Mr Findley, it says a number of things and that is one of them, but I think - - -
PN937
Sorry, the essence of this paragraph is you're saying employees get 50 per cent more on weekends - - -?‑‑‑Should I just read the paragraph?
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN938
This paragraph says employees get 50 per cent more on weekends, effectively, does it?‑‑‑I can read what it says or you can interpret what it says, but it's very difficult when you paraphrase to either agree or disagree. It says some of what you're saying and it says some other things as well. It's there, Commissioner - 25.2. I think it's clear what is written in that paragraph.
PN939
What I'm trying to ask, Commissioner - maybe you could help me word it - I'm trying to highlight that he is telling employees that they get 50 per cent more if they have forced overtime, but he admits the fact that they only get 19 per cent in lieu of 50 or 100 per cent for voluntary overtime. So he highlights one thing over the other. He highlights the benefits but he doesn't highlight the detriments.
PN940
MR LEVIN: That is a submission that can be made later.
PN941
THE COMMISSIONER: That's a submission.
PN942
MR FINDLEY: Okay. I'll move on. Did you tell employees that they will lose 1.7 per cent in night‑time penalties?‑‑‑Can you refer me to the - well yes, at clause 23, shift work allowances, we say a 21.7 per cent loading will be paid to new employees, and we go on to say a 20 per cent loading will be paid to existing employees for each hour worked, but each hour worked of an afternoon, night or early morning shift.
PN943
But you didn't explain the effects of the terms as compared to the award, that they'll lose 1.7 per cent?‑‑‑What I explained is set out in clause 23.
PN944
Thank you. Can you please turn to attachment 12 of your witness statement, the Changes document?‑‑‑Yes, I have that.
PN945
What is the purpose of this document?‑‑‑This is to highlight the major changes, so in addition to explaining the terms, we've tabulated the major changes, or what I consider to be the major changes, between the existing agreement and the new agreement.
PN946
Is it fair to say that many employees would have read this document to make an informed choice of the agreement?‑‑‑I don't know what employees would have read or thought or anything else.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN947
In the last agreement there was a $500 sign‑on bonus for full‑time employees, and a $250 sign‑on bonus for everyone else, correct?‑‑‑That is correct.
PN948
The new agreement doesn't offer the sign‑on bonus, correct?‑‑‑That is correct.
PN949
Where in the Changes document does it state that the sign‑on bonus has been removed?‑‑‑It does not state that, and the reason - - -
PN950
Thank you?‑‑‑And the reason is that the sign‑on bonus was specific to the old agreement. It was not discussed, it was not put as anything to do with the proposed 2016 agreement.
PN951
So there was a change in the fact that you're not offering the bonus anymore, and you admitted it from this document?‑‑‑I don't accept that there was a change.
PN952
Well, they got the sign‑on bonus last agreement, yes, and they didn't this agreement?
PN953
THE COMMISSIONER: Hang on. Sign‑on bonuses are not regular terms and conditions that are contained in an enterprise agreement. They tend to be negotiated and agreed as a product of a particular negotiation, and they are not a given, like night shift penalty and overtime and all of that stuff. They're just not a given.
PN954
MR FINDLEY: I understand, Commissioner, but if - again, this is submissions, but I can't bring this up later because I need to ask him the question now.
PN955
MR LEVIN: I'm sorry. It's conceded that there was in the previous agreement, not in this one, and it's not mentioned in this document.
PN956
THE COMMISSIONER: Okay.
PN957
MR FINDLEY: Okay, thank you. During the process of the current agreement, so that's the 2011 agreement, the third version was rejected by employees, correct?‑‑‑I wasn't employed by the company at the time.
PN958
But you'd understand the history of the company?
PN959
THE COMMISSIONER: We get to your hearsay, so I'd watch it, Mr Findley.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN960
MR FINDLEY: Yes, Commissioner. Why would you leave out that clause in the Changes document, being that it probably would be significant to employees?
PN961
THE COMMISSIONER: Which clause?
PN962
MR FINDLEY: I'm referring to the Changes document.
PN963
THE COMMISSIONER: Yes, but which clause are you asking Mr Luddington about?
PN964
MR FINDLEY: I'm asking him, in the Changes document there was a clause in the old agreement that says that they will be paid the sign‑on bonus, $500 or $250.
PN965
THE COMMISSIONER: I thought we talked about that.
PN966
MR LEVIN: I think he's now asking why is it not there.
PN967
THE COMMISSIONER: Right.
PN968
MR FINDLEY: Yes, Commissioner.
PN969
THE COMMISSIONER: Why?‑‑‑I didn't consider it relevant for the purposes of the 2016 agreement.
PN970
Right.
PN971
MR FINDLEY: You've got a copy of my affidavit there?‑‑‑I probably do.
PN972
THE COMMISSIONER: Is that in the folder?
PN973
MR FINDLEY: It's just one page, Commissioner. I've got a loose leaf from that and I can refer you to the page in my affidavit?‑‑‑Yes, I have it.
PN974
THE COMMISSIONER: Thank you, Mr Findley.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN975
MR FINDLEY: I'd like you to turn to attachment 17, page 70 of that affidavit?‑‑‑Yes.
PN976
What is that document?‑‑‑That appears to be a United Voice poster, for want of a better expression.
PN977
Down near the bottom of the table, it says, "Fair wage increases." Could you read what we won?‑‑‑Sorry?
PN978
THE COMMISSIONER: Hang on. This is not a company document, so what Mr Luddington thinks about it is not relevant.
PN979
MR FINDLEY: I don't want to know what he thinks about it, Commissioner. I want him to state the facts that there are factual things in this document that are wrong, and Matt would be aware of the facts in this document.
PN980
THE COMMISSIONER: Okay.
PN981
MR FINDLEY: For example, the guaranteed increases of 8 per cent over four years. I'd like to ask Matt, does the agreement offer everyone the 8 per cent over four years?‑‑‑No. That is specific just to the existing employees. New employees are just tied to the Fair Work wage increase.
PN982
So if the Fair Work wage increase was zero next year they wouldn't get a pay rise, correct?‑‑‑That's correct.
PN983
The next claim says the new guards are off the award. An additional 0.5 per cent increase this year for new guards to permanently move them off the award minimum?‑‑‑That is (indistinct).
PN984
Did they move off the award minimum, taking into account the first aid allowance?‑‑‑I think that's a question for the Commissioner.
PN985
In your opinion?‑‑‑In my opinion, the base rates for new employees - - -
PN986
MR LEVIN: I'm sorry, the opinion is not going to assist you.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN987
THE COMMISSIONER: Yes, and what this says is a 0.5 per cent, I'm assuming, wage increase?‑‑‑Correct.
PN988
To permanently move them off the award minimum wage rate?
PN989
MR FINDLEY: Yes.
PN990
THE COMMISSIONER: It's just about wage rates?
PN991
MR FINDLEY: The way that I've read it, Commissioner, is to permanently move them off the award minimum.
PN992
THE COMMISSIONER: Minimum wage rate?
PN993
MR FINDLEY: I guess that's open to interpretation. The - - -
PN994
THE COMMISSIONER: No, it's not. That's what it means.
PN995
MR LEVIN: My friend could put that as a submission. It's not a proper question.
PN996
MR FINDLEY: Okay. It says safeguard conditions like shift penalties were protected. What is the shift penalty for night loading for an existing employee?‑‑‑20 per cent.
PN997
And what is it in the award?‑‑‑21.7.
PN998
So it wasn't protected, was it?‑‑‑Well, Mr Findley - Commissioner, I think what Mr Findley is failing to point out to you is that the 20 per cent loading was pre‑existing. That was in the current agreement and in previous agreements, so in terms of it being protected, I would say that yes, it was, and that it wasn't diminished in any way. Additionally, for existing employees who have the 20 per cent night shift loading, that night shift loading is paid on all hours worked as long as one of those hours falls into the night or afternoon shift span. So I do consider that those loadings were protected.
PN999
Okay, and for people that permanently work at nights and they don't have any daytime hours?‑‑‑It's 30 per cent under both.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1000
For people that work either 100 per cent in the day or 100 per cent at night that don't have that gap spanning between day and night, they would be on 20 per cent? That extra hour or two at each side wouldn't apply, correct?‑‑‑I don't understand the question.
PN1001
So an eight‑hour shift, if it spans across day time and night time, they would be entitled to a night time - - -
PN1002
MR LEVIN: Perhaps I might ask my friend to re‑phrase the question with some hours as an example, so that it can be answered, by reference to 6 am or 6.30 am, or pm?
PN1003
MR FINDLEY: I think it's moving - here it says now I'm answering back with the BOOT; I think I'll move from there because I don't want to go into BOOT issues. The point that I was making there is that the penalty rates weren't protected, because there's 21.7 per cent and the difference is 20 per cent. Yes, there are some that benefits from the overlap, but those are submissions later.
PN1004
THE COMMISSIONER: Yes, they are.
PN1005
MR LEVIN: Can I ask a general question? I don't know how many more of these about this document there's going to be. I'm not again how it's relevant as to what is or isn't said or meant by the union's communication document; how that relates to whether the explanatory document explained the terms and effect under the Act. I've been wanting to just see if it's going somewhere, but I don't know.
PN1006
MR FINDLEY: Yes. Commissioner, I - - -
PN1007
THE COMMISSIONER: That was the question I asked 10 minutes ago.
PN1008
MR LEVIN: Yes.
PN1009
MR FINDLEY: Sorry, Commissioner. I see this as another explanatory document.
PN1010
THE COMMISSIONER: It's not. It's the union's. It's not the company. The company is the applicant.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1011
MR FINDLEY: Yes, your Honour.
PN1012
THE COMMISSIONER: Okay?
PN1013
MR FINDLEY: Okay. You have covered this in your witness statement, but in your F17 stat dec you said that there were no terms less beneficial than the award, correct?‑‑‑I ticked a box that said that - - -
PN1014
And you corrected that later?‑‑‑ - - - and I have subsequently corrected that. Commissioner, that was done in error and I attached a table outlining some of the clauses that were beneficial, others that were not, others that were equal. So my apologies for ticking the wrong box.
PN1015
Did you state to me personally at a disciplinary meeting that omissions are as bad as lying?
PN1016
MR LEVIN: I'm sorry, I've got an objection here again - relevance. I think we're treading very close to BOOT questions.
PN1017
THE COMMISSIONER: What's that one?
PN1018
MR LEVIN: If I'm guessing where it's going, but I'm not sure how that question is going to advance the statutory questions for you to determine. This is an objective document. It speaks on its face for what was explained and in terms of the terms and their effect. The documents are there. So I don't know how a discussion in a disciplinary meeting is going to assist us about omissions.
PN1019
MR FINDLEY: Commissioner, it goes towards the credibility of the witness that the statements that he's made - he's made a few of them - the evidence that he gives and the weight that you give to his evidence; that's why I asked the question.
PN1020
THE COMMISSIONER: Mr Findley, I get that. At the end of the day, this is actually an application for an approval of an agreement, and it's got two bits to the process. There's the pre‑approval, and then it's the BOOT. The Commission has a statutory duty to actually work out for itself. If it was a perfect world nobody would tick the wrong box. It ain't a perfect world. But I've actually got an active job to do, and that is work out for myself.
PN1021
MR FINDLEY: Okay, I'll move on.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1022
THE COMMISSIONER: Okay?
PN1023
MR FINDLEY: Thank you. Can you please read out paragraph 10 of your stat dec, the F17 - sorry, I mean witness statement.
PN1024
THE COMMISSIONER: Yes, I was about to say I don't think it goes to 10.
PN1025
MR FINDLEY: Sorry?‑‑‑So:
PN1026
Shortly after filing my form F17 statutory declaration, I received a copy of United Voice's form F18 statutory declaration of employee organisation in relation to an application for approval of an enterprise -
PN1027
I assume that should be "agreement" -
PN1028
agreement in support of the approval of the 2016 agreement. See attachment ML2.
PN1029
Thank you. You said you received United Voice's F18 shortly after filing your stat dec?‑‑‑Yes.
PN1030
Is that correct?‑‑‑That is correct.
PN1031
I was copied to an email from you at 12.56 on 15 July filing your F17 and the union's F18 together. You didn't receive the union's F18 after you filed, did you? You filed the union's document together with your document?‑‑‑I don't recall.
PN1032
I'll just get you to look at an email, if that's all right with the Commissioner?‑‑‑I am prepared to accept that I've said shortly after filing my form F17 I received a copy of United Voice's form F18. I may have meant shortly after completing my form F17. Specifically, I don't recall.
PN1033
I'd like to give you this so you could read some things from it. This is an email - I don't have another copy, Commissioner, but I pass it to Ross.
PN1034
MR LEVIN: Commissioner, it appears to be a document from Matt Luddington to the Commission, copied to Mr Findley and Erin Keogh of United Voice:
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1035
Dear Fair Work Commission
PN1036
Please find attached copies of the signed agreement, separate signature page, F16, F17 and F18. The bargaining reps have been copied by way of service. Feel free to contact me should you require any further information.
PN1037
Thank you.
PN1038
MR FINDLEY: Mr Luddington, that is you filing your paperwork with the Commission, that email, yes?‑‑‑That is correct.
PN1039
And attached is the union's stat dec, correct?‑‑‑That's also correct.
PN1040
So you didn't file your information then receive the union's stat dec afterwards, as you've stated in your witness statement?‑‑‑I accept that that was an incorrect statement.
PN1041
Okay, thank you.
COMMENT REDACTED FROM TRANSCRIPT BY REQUEST OF COMMISSIONER [12.01 PM]
PN1042
MR FINDLEY: This is a question I've reworded a thousand times, but it's not going to get better than this one.
PN1043
THE COMMISSIONER: Okay. It's a lovely warning.
PN1044
MR FINDLEY: This is going to annoy everyone.
PN1045
THE COMMISSIONER: Yes, I was about to say I'm on red alert now.
PN1046
MR FINDLEY: Yes, I've left this to last so I'm closest to the door. Did MSS give money to United Voice to support this agreement?‑‑‑No. Unequivocally no.
PN1047
Did MSS give the union any money in the last two years, not including employee benefits?‑‑‑No.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1048
Was there a promise to give the union money?‑‑‑No, absolutely not, and personally, if I can, Commissioner, I am offended by the question.
PN1049
I think that concludes what I have to ask Mr Luddington, Commissioner.
PN1050
THE COMMISSIONER: Okay. Thank you.
PN1051
MR LEVIN: I have no questions in reply to that aspect of the cross‑examination.
PN1052
THE COMMISSIONER: Okay. It's my turn. Mr Luddington, your statement from this morning?‑‑‑Yes.
PN1053
May I ask you some questions about that, please?‑‑‑Certainly.
PN1054
Can I just explain where I'm coming from? You've actually got the folder with your attachments, but I think it's ML15, you gave some rosters, yes?‑‑‑Yes.
PN1055
I'm going to be straight about this. In terms of the the BOOT, I don't have any concerns in terms of existing employees because they're far enough up, away from the award. When you balance everything up, I'm fine. The questions I want to ask are about the new employees, and if I remember, there were two rosters for existing employees put in there?‑‑‑That's, sorry, new employees, Commissioner?
PN1056
Yes?‑‑‑Sorry, you said - - -
PN1057
Sorry, what did I say?‑‑‑You said "existing."
PN1058
Sorry, I meant new. And one was Mr Findley's roster; that was the second one?‑‑‑Correct.
PN1059
And the first one was - - -?‑‑‑Andrew Lewer.
PN1060
Yes, Mr Lewer, thank you. When I looked at the roster, what was clear to me was that for both of those gentlemen, Mr Lewer and Mr Findley, that when they worked night shifts the BOOT was met?‑‑‑Yes.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1061
When they didn't work night shifts, which I think for Mr Lewer were the first two weeks in the roster?‑‑‑Correct.
PN1062
And I suspect the same for Mr Findley, I can't quite remember?‑‑‑Yes.
PN1063
But when they worked non‑night shifts, so two weeks out of the four weeks, compared to the award they were behind?‑‑‑Correct.
PN1064
And so that's where my concern about meeting the requirements of the BOOT started?‑‑‑Certainly.
PN1065
And on the roster you've got and the table, the big chunky bit is the difference between the agreement first aid allowance and the award first aid allowance?‑‑‑Yes.
PN1066
I mean, the first obvious bit?‑‑‑Yes.
PN1067
I'm not good at maths but that was obvious. What I think you've done in terms of your witness statement for this morning is to basically say that the new employees have worked - where was it, was it in your statement - worked x number of hours of - - -
PN1068
MR LEVIN: Paragraph 6(a), Commissioner.
PN1069
THE COMMISSIONER: Thank you. What I think this document is trying to explain to the Commission is that because of the amount of overtime that's worked, and this is not VOT, right?‑‑‑Correct.
PN1070
This is straight overtime, and because the penalties are higher under the agreement for the overtime than the award, that then is the balancing thing that the Commission has to take account of in offsetting the - if they don't work night shift they're behind the award, and so that's what the Commission needs to factor in in terms of money in their bank account every fortnight or week, right?‑‑‑That's one of the things, yes, Commissioner.
PN1071
Can we just sit with the one for the minute, and then if you want to talk to me about the others that's great?‑‑‑Certainly.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1072
I just want to understand that - both Mr Mansell and Mr Lewer worked 12‑hour shifts?‑‑‑Yes.
PN1073
No, hang on, Mr Lewer does?‑‑‑Yes.
PN1074
Does Mr Mansell?‑‑‑No. He works - - -
PN1075
No, he works nine?‑‑‑Yes, that's correct. No, sorry, Commissioner, Mr Mansell works 10‑hour shifts.
PN1076
I can't do maths. He works six for a 10 - yes, my apologies. So Mr Lewer works a 12‑day(?) shift?‑‑‑Correct.
PN1077
And you've said he's got four hours of overtime built in?‑‑‑That's correct.
PN1078
Mr Lewer's roster, he is working day shift two weeks, night shift two weeks, yes?‑‑‑Correct.
PN1079
Because it's 12‑hour shifts, so you could only do day or night?‑‑‑Yes.
PN1080
Is that his standard roster?‑‑‑That's correct.
PN1081
Two days, two nights, and it just goes two days, two nights, two weeks of days, two weeks of nights?‑‑‑Yes, and rotates through.
PN1082
Yes, and it rotates through the days?‑‑‑Yes.
PN1083
That's what happens, okay. So what I think you're saying is that by the time you add in the two weeks that are under with the two weeks that are over, and this includes overtime?‑‑‑That's correct. That's in fact for both the award and the agreement.
PN1084
That he's then, over those four weeks, he's $4.68 over the award?‑‑‑That's correct.
PN1085
And his roster cycle, is it actually a fortnightly - is it a 12‑week, 14‑week - - -?‑‑‑No, it's just a four‑week cycle. What's provided to you is the full cycle.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1086
Okay?‑‑‑So after the Friday night shift he then has the Saturday and the Sunday off, and starts again with a day shift on the Monday.
PN1087
So that's what - how can I put it - that's not discretionary overtime required by the company; it's mandatory, because it's the hours that he has to do?‑‑‑Correct.
PN1088
You were saying that the cycle is four weeks?‑‑‑Yes.
PN1089
And it rotates through the days, but it's two weeks of day, two weeks of night?‑‑‑Correct.
PN1090
And then it repeats, repeats, repeats?‑‑‑Correct.
PN1091
So therefore over the roster cycle, Mr Lewer is $4.68 ahead of the award?‑‑‑Correct.
PN1092
Mr Mansell works less, and is that all he does - sorry, with great respect to Mr Mansell, I apologise - but he is doing a 10‑hour day?‑‑‑Correct.
PN1093
Does he rotate through night?‑‑‑No, so he just does - - -
PN1094
That's all he ever does?‑‑‑He does a fixed 10‑hour day shift, Monday to Friday.
PN1095
Right, and so therefore I'm assuming - I think you've got four hours built‑in overtime for him, but I think you mean two?‑‑‑I would probably mean 12.
PN1096
No, go to 6(b) - let me take you to what I've got - and you've called it, "Andrew", so I think in the haste of getting it ready - so this is 6(b)?‑‑‑Yes.
PN1097
You've got, "Mr Mansell?"---Yes.
PN1098
Then you've got, "Andrew has four hours of overtime?"---Yes.
PN1099
Built in to his roster.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1100
MR LEVIN: I'm sorry - - -
PN1101
THE COMMISSIONER: I think that's a cut and paste that hasn't worked.
PN1102
MR LEVIN: It is.
PN1103
THE COMMISSIONER: And so, am I assuming he's got two hours per week?‑‑‑Mr Mansell would have 12 hours per week - five days a week, 10‑hour shifts. That's 50 hours.
PN1104
Right?‑‑‑Full‑time would be 38, so he has 12 hours of overtime built in.
PN1105
Thank you. The overtime that he's working, the company can't suddenly - it's not discretionary, in that it's actually as a result of a contract that you have with wherever the company, with wherever he works, that's the hours that they want covered by security by your company?‑‑‑Correct.
PN1106
And so unless he decided he wanted to move jobs, there's no discretion about the additional overtime that is built into his roster?‑‑‑That's correct.
PN1107
Does that make sense?‑‑‑Anybody working that roster would have 12 hours of built‑in overtime. Is that what you were - - -?
PN1108
That's what I'm asking. And you can't decide that you don't feel like giving that gentleman that amount of overtime that week because it's in the contract and you've got to provide a service?‑‑‑Correct.
PN1109
I mean, if he's sick obviously?‑‑‑Yes.
PN1110
Okay. So then we've got the last one, sorry, is the Brookfield site?‑‑‑Yes.
PN1111
Remind me when the night shift penalties kick in?‑‑‑Under the agreement, it's from 0630 to 1830, and the award is 0600 to 1800.
PN1112
Yes. So the Brookfield site, the reason that it doesn't have any minus signs in the right‑hand column is because it's a combination of 12 hours?‑‑‑Yes.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1113
There are some 12 hours in there; there's quite a bit of night shift, but it's a mix - can I put it that way?‑‑‑Yes, absolutely.
PN1114
That roster, there's obviously overtime built in?‑‑‑Correct.
PN1115
Is that for the same reason as for the other two?‑‑‑Yes, absolutely.
PN1116
So it's not discretionary, required overtime; it's required required?‑‑‑That's a part of your roster if you were working there, yes.
PN1117
Yes, exactly, and so that's the deal?‑‑‑Yes.
PN1118
Are most of the employees who are going to be covered by the proposed agreement on rosters like that, the new ones, because the company - one of its arguments is that, in terms of the balancing for the BOOT, you're saying that the Commission needs to take into account the overtime?‑‑‑Yes.
PN1119
And this is not the VOT; it's because new employees don't get that?‑‑‑Yes.
PN1120
It's straight‑up overtime, which is better than the award?‑‑‑Yes.
PN1121
Okay. I am satisfied in terms of that style of overtime, because you can't actually modify it because you felt like it, because that would be going against the contract that you have with the people you are providing the service to. Does that cover all of the rosters for people?‑‑‑That would cover the significant majority. Most would have built‑in overtime. Not every roster that we have has built‑in overtime.
PN1122
What would those rosters look like?‑‑‑Rosters without built‑in overtime, it could be a case of three 10‑hour shifts and one eight‑hour shift across days, nights. It would depend. My honest answer, Commissioner, is that not all rosters have built‑in overtime.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1123
Because in terms of meeting the BOOT, the rosters that have the built‑in overtime as part of their normal ordinary hours passes the BOOT. I have no issue with that or with the rosters that you have provided. The issue that I've got is that if somebody is not getting overtime, not being required to work overtime, and they are not working night shift, they do not meet the BOOT?‑‑‑Yes. Commissioner, I can think of possibly one site and about seven employees that that might apply to. It's my understanding based on a number of the calculations that we have done that those employees, the employees pick up additional ad hoc overtime as people drop sick, as people take annual leave, and on the particular site in question, those employees would need to be - they would need to be site‑trained. So it wouldn't be a case of utilising other alternatives. We would need to use the pool of people to backfill job shifts.
PN1124
Yes, okay. Unfortunately that's not a guaranteed that they will pick up the additional hours. I understand that that's most likely - you know, real life people go on leave and they get sick - I understand that. But the Commission has generally taken account of things that are more guaranteed rather than discretionary, and obviously it is absolutely the employer's discretion about requirement to work overtime?‑‑‑What I would say to that, Commissioner, is that we have a contractual requirement to provide x amount of people on a particular site. Over the course of a year people are absolutely going to get sick; people are absolutely going to take annual leave. We have a contractual requirement to replace those people with people that are suitably trained, and so it's not a case of us saying well we don't want to provide overtime to those people; it would become a necessity.
PN1125
Yes, I get that, and it's not that I don't trust what you're saying - let me make that very clear. It's just that the requirement under the BOOT is that each employee, and unless I've misread the attachment ML15, which is actually reflected as well in the new ones, where somebody - and Mr Lewer has actually got built‑in overtime - - -?‑‑‑He does.
PN1126
- - - in this, and when he's not working night shift he's got a minus sign under the BOOT column?‑‑‑Yes.
PN1127
And the only reason that he passes the BOOT is that over the cycle, which is the four weeks, he's ahead?‑‑‑That's correct, Commissioner. Sorry, the site that I'm thinking of is day shifts, but it doesn't encroach on night shift either way. I believe that it starts at 0700 and finishes at 1700.
PN1128
That's eight‑hour shift?‑‑‑Yes, and so the difference in the night span, the 0600, the 0630, which is what makes up the difference with Mr Lewer, does not apply.
PN1129
Yes, which means that the elephant in the room then is the disparity between the award first aid allowance and the agreement first aid allowance, noting that the laundry allowance is available under the agreement but not under the award?‑‑‑Yes.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1130
It seems to me that if somebody is only working days, is working eight‑hour shift, doesn't have overtime built in to their ordinary hours, they don't meet the BOOT?‑‑‑None of the calculations that I have done have demonstrated that, Commissioner.
PN1131
It's the minus - I don't have it in front of me, but the first two lines for Mr Findley and Mr - unless I can't read - the amount payable under the agreement versus the award, there's a minus sign?‑‑‑Yes.
PN1132
That to me doesn't meet the BOOT.
PN1133
MR LEVIN: I'm sorry, I think if I could draw your attention to Mr - - -
PN1134
THE COMMISSIONER: Yes - I don't have it. Mr Luddington's got it. I'm doing all this by memory.
PN1135
MR LEVIN: Yes. No, I'm not sure that what you've said is so.
PN1136
THE COMMISSIONER: That's why I'm asking.
PN1137
MR LEVIN: I wonder if I can just - - -?
PN1138
THE COMMISSIONER: Please, yes.
PN1139
MR LEVIN: - - - provide it?
PN1140
THE COMMISSIONER: Yes. If I had the document in front of me - thank you.
PN1141
MR LEVIN: I think there were two positive, two negative on Mr Findley's?
PN1142
THE COMMISSIONER: Yes, but it was Mr Lewer who was clearer.
PN1143
MR LEVIN: Okay.
PN1144
THE COMMISSIONER: Have you given me Mr Lewer?
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1145
MR LEVIN: Mr Lewer is absolutely identical to what's attached today. There's no change to Mr Lewer.
PN1146
THE COMMISSIONER: Okay. So Mr Lewer in week one?‑‑‑Yes.
PN1147
When he works, he works week one and week two, are those both minus signs?‑‑‑Yes.
PN1148
Good. And what those two weeks are are day shift, yes?‑‑‑Yes.
PN1149
So the people that you're talking about - - -
PN1150
MR LEVIN: I think Saturday and Sundays worked in that first - - -
PN1151
THE WITNESS: Sorry, that's also correct.
PN1152
THE COMMISSIONER: What, sorry?‑‑‑The Saturday and Sunday he works. The other point, Commissioner, the reason that those first two weeks are minus is, because Mr Lewer works 12‑hour shifts, the 0600/0630 differential factors in. That's why you have minus figures for the first two weeks, and plus figures for the second two weeks. So if you have an employee that's working a shift that doesn't encroach either way on the 0600/0630, then that differential, the difference between the night shift loading that you would or wouldn't get under the agreement or the award, has no effect.
PN1153
Correct, and that's what I'm trying to say. If you've got - you've said at this particular site with the seven that their week one - they'd only have a week one, like Mr Mansell, because they only work days?‑‑‑Yes.
PN1154
You've said they only work days and there's no overtime built into their rate?‑‑‑Correct.
PN1155
And so they're going to be getting 38 hours' worth of - let's assume they're a level 4 - 21.26, right?‑‑‑Yes.
PN1156
Then they're going to get - I'm working off Mr Lewer's figures - then they're going to get 0.60?‑‑‑Yes.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1157
And then they're going to get 1608, assuming - is that - yes?‑‑‑Sorry, the 1608 refers to what, sorry?
PN1158
The first aid?‑‑‑Yes.
PN1159
Extrapolating from Mr Lewer's top box, you've told me these seven don't work - they're just straight, they're week days and they're day workers?‑‑‑Yes.
PN1160
And there's no inbuilt overtime?‑‑‑Yes.
PN1161
So let's assume they're a level 4, they're going to get 38 multiplied by 21.26?‑‑‑Yes.
PN1162
They're going to get the 0.60 of laundry?‑‑‑Yes.
PN1163
And then they're going to get the last figure, which is the weekly figure, 1608, in terms of - - -?‑‑‑Yes.
PN1164
The question is - I can't do math - is they're 11 cents higher than the award on their hourly rate?‑‑‑Yes.
PN1165
So that puts them plus 38 cents, is that right, $3.80?‑‑‑$3.80, yes.
PN1166
But there are $10‑something or other behind the award in terms of first aid, and the $3.80 and the 60 cents laundry don't get you to meet the difference?‑‑‑The 60 cents per shift, is that - have you factored that into your calculations? Sorry, I haven't - - -
PN1167
Yes - no, so it's five shifts, so that's $3. So I've got $3.80 plus $3, which is $6.80, yes?‑‑‑Yes.
PN1168
And I've got a difference in terms of first aid of $10.64?‑‑‑Yes.
PN1169
That's hurting my brain. There's a gap?‑‑‑I see that.
PN1170
Yes.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1171
MR LEVIN: $3.84. I thought it was helping you, if that was - - -
PN1172
THE COMMISSIONER: Thank you, Mr Levin.
PN1173
MR LEVIN: Sincerely.
PN1174
THE COMMISSIONER: Yes, okay.
PN1175
MR LEVIN: May I address you on this point, briefly?
PN1176
THE COMMISSIONER: Hold on.
PN1177
MR LEVIN: Sure.
PN1178
THE COMMISSIONER: Mr Levin, would you mind holding that thought for a moment, because I just want to be fair to Mr Luddington. So that's overtime stuff, right. But at the beginning you said that there were other things, and I said can you park that for a minute, I just want to concentrate on the overtime, because that to me seemed to be the argument encapsulated in your new witness statement?‑‑‑Yes.
PN1179
Talk to me about the other things, if I haven't confused you completely, sorry?‑‑‑Yes. The other things that I guess we wanted to ensure that you took into account, and I understand that you have taken some of those things into account: the laundry allowance; the higher overtime rates, which you have; and the provision of first aid training.
PN1180
I was hoping you weren't going to talk to me about that, because you and I are going to disagree?‑‑‑Yes.
PN1181
Yes, talk to me about it?‑‑‑From the company's perspective, we consider that to be an over‑award provision, that we pay for the first aid course, that we pay for employees to attend the course; we provide them with lunch - but I don't expect you to factor that in. But for us and the whole purpose of the history behind a lower first aid allowance than the award is that we provide those things for the employees. That's how it has come to be, and that's how it has been explained to me by others in the company.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1182
This may be an unfair question, and if you don't know there's not a problem with just telling me you don't know. The reason I've got a different view, I think, is because there's no material before me about when in a person's employment with MSS that this occurs, and I accept that, and I think it's on the attachment, ML15, which has the first aid and you've done those calculations. When is that provided for an employee routinely? Is it the minute that they start, so it's right at the beginning of their employment and so therefore you can calculate it over the three‑year period, or is there a period of employment with the company before - what generates them going off and availing themselves of this benefit?‑‑‑Certainly. The company runs the course every month, and I guess the reason that people would be asked to attend the course is that their first aid licence is going to expire within, say, a period of six months, so we would want them to maintain their first aid licence. So every month a group of employees are asked to attend the first aid course. That's marked off and records are kept of that, and then that licence is valid for three years, and then after two‑and‑a‑half years, as the licence becomes about to expire, they would be asked to reattend.
PN1183
Do I commence employment with MSS Security with a licence?‑‑‑Yes.
PN1184
And so therefore - let's do an outlandish example - if I had just renewed it, it just happened that that's the way the cards fell, and I was, let's say, six months into my new licence so I've got another two‑and‑a‑half years to run, then two years after I start the company will send me a reminder to say your licence is expiring in six months, and so I say - I'm a bit like Mr Findley, I do stuff at the last minute - and so dead on the knocker of two‑and‑a‑half years since I started I do my thing. I'm assuming what the company's argument would be would be that one then retrospectively assigns the benefit - that's clear, there's no argument about the benefits; more about the timing and when it gets factored in - because mine would be retrospective, and so what the argument would be would be that for, you know, over the period there would have been this benefit which would fill in Mr Levin's $3.84, yes?‑‑‑Yes.
PN1185
The problem I've got with that is that the person's then bereft for the next - because the employee would have six months where the benefit's been retrospectively provided, if you know what I mean. I don't have a problem recognising the benefit. The difficulty I'm having is factoring it into the BOOT, because it would be different - we wouldn't be having this discussion if the employees commenced with the company with no first aid certificate and as part of their induction you trained them. Argument, all gone. If you count it, not a problem. But because people come in with varying lengths of first aid licence left, it makes it difficult to factor it in?‑‑‑Yes.
PN1186
But I assume that Mr Levin will make submissions about that later.
*** MATTHEW LUDDINGTON XXN MR FINDLAY
PN1187
MR LEVIN: I think it may be helpful, just on a factual gap, if I ask a question?
THE COMMISSIONER: Yes, of course.
RE-EXAMINATION BY MR LEVIN [12.37 PM]
PN1189
MR LEVIN: You said that it's done every month?‑‑‑Yes.
PN1190
And I'm aware of this process, so - - -
PN1191
THE COMMISSIONER: Yes, but Mr Luddington's on oath, I accept; I'm old‑fashioned.
PN1192
MR LEVIN: So it's done every month?‑‑‑Yes.
PN1193
And it's a four‑year enterprise agreement?‑‑‑Correct.
PN1194
Is there any employee who wouldn't then be able to access that within the four years?‑‑‑Every employee would be able to access the first aid training over the life of the agreement.
PN1195
Is that - and I'll ask a leading question - is that because the licence only lasts three years and the agreement is four?‑‑‑Correct.
PN1196
And therefore everyone, every new employee, unless they choose to pay for themselves and not get the wages for going, if it's offered every employee will get it?‑‑‑That's correct.
PN1197
And some will get it twice. I think you did some sums as to how many people get it in the first 12 months?‑‑‑Yes.
PN1198
Do you remember the number?‑‑‑Over the past 12 months - and I did this specifically on new employees - in the past 12 months, 44 new employees have already been provided with first aid training, or employees classified as new employees.
PN1199
So those people in the fourth year, they would get it a second time?‑‑‑Correct.
*** MATTHEW LUDDINGTON RXN MR LEVIN
PN1200
Is the benefit paid once only to certain people, or is it paid when they attend and get the licence?‑‑‑It's paid every time that they attend, which is at least once every three years.
PN1201
THE COMMISSIONER: Does everybody renew their licence that way?‑‑‑That would be what we would encourage people to do. If people opted out, we wouldn't force them to do that.
PN1202
Do you know if people do opt out? Have you got 100 per cent coverage, I mean?‑‑‑I know that Mr Findley has made reference to employees that don't want to do this. I am not aware of those employees. To the best of my knowledge, every employee that we have is invited, asked to attend the first aid training that we provide.
PN1203
MR LEVIN: I might, on that flow, and in terms of the cost to an employee to do it themselves, do you know what it costs for them to go and do a course?‑‑‑The cost of a first aid course is $110.
PN1204
If they do it themselves, do they do it on paid time?‑‑‑That would be a controversial question, I think. There's a term in the agreement that says - - -
PN1205
I'll ask you a better question. If you offer an employee the ability to go and paid them, and paid the $110 for the licence, and they say no, I want to do it on my own, what benefit do they get? What money do they get from you if they make that decision?‑‑‑If they went and - - -
PN1206
THE COMMISSIONER: Zero, I think.
PN1207
MR LEVIN: Correct. Therefore, is there any employee of which you are aware who has declined the offer?‑‑‑No.
PN1208
THE COMMISSIONER: Thank you. Is there any other re‑examination?
PN1209
MR LEVIN: No. No, thank you.
THE COMMISSIONER: Thank you, Mr Levin. Mr Luddington, thank you for your evidence and your patience. You are released. You may step down?‑‑‑Thank you.
*** MATTHEW LUDDINGTON RXN MR LEVIN
<THE WITNESS WITHDREW [12.41 PM]
PN1211
MR LEVIN: Having said that, Commissioner, I do want to ask my client briefly something about a potential undertaking. But he doesn't need to be in the witness stand to do that.
PN1212
THE COMMISSIONER: Okay. You're going to tell me his answer?
PN1213
MR LEVIN: I will, once I ask him the question.
PN1214
THE COMMISSIONER: All right.
PN1215
MR LEVIN: But my understanding is your - where the Commission's concerned - is to site where employees are not rostered for overtime, who don't work night shift, are new employees, and - I'll add this one point - and did not for a fact pick up some overtime that they've chosen to work?
PN1216
THE COMMISSIONER: Sorry, would you mind trying - - -?
PN1217
MR LEVIN: Not at all. Take that site work for seven people.
PN1218
THE COMMISSIONER: Yes, correct.
PN1219
MR LEVIN: They're working the hypothetical - only working day shift. Then the concern would be if there's no overtime rostered, and there's no night shift - they're not picking up anything extra for that, and they're new employees so they haven't got the higher pay?
PN1220
THE COMMISSIONER: Correct.
PN1221
MR LEVIN: Your concern expressed is those people?
PN1222
THE COMMISSIONER: Correct.
PN1223
MR LEVIN: And the concern is because whilst it may be that you say I don't challenge the evidence that some have got to work the overtime, that your concern is the certainty?
*** MATTHEW LUDDINGTON RXN MR LEVIN
PN1224
THE COMMISSIONER: Correct.
PN1225
MR LEVIN: And therefore, if it were the case that - perhaps I'll just pause there and ask my client, if I may, a question. I'm able to offer you an undertaking.
PN1226
THE COMMISSIONER: Before you do, Mr Levin, may I just share something with you, because it would be unfair not to before the undertaking. Attachment ML15 is good enough to have the first aid component spelt out, and it has a total figure of 285.36 - sorry, you can borrow mine.
PN1227
MR LEVIN: I think you've borrowed mine.
PN1228
THE COMMISSIONER: Did I? No, this is mine.
PN1229
MR LEVIN: I'm sorry.
PN1230
THE COMMISSIONER: Yours was white; I'm black.
PN1231
MR LEVIN: I wonder if you'd take me to that again, please.
PN1232
THE COMMISSIONER: Yes, sorry - attachment ML15. Sorry, would you like to borrow mine?
PN1233
MR LEVIN: I've got all my MLs, but I thought that when I handed up that roster I might have given up my - - -
PN1234
THE COMMISSIONER: Yes, you did, and my associate gave it back to you.
PN1235
MR LEVIN: I'm so sorry.
PN1236
THE COMMISSIONER: That's all right.
PN1237
MR LEVIN: Thank you. I have it.
PN1238
THE COMMISSIONER: But I'm after Mr Lewer's, which you didn't give me.
PN1239
MR LEVIN: Yes, I have that here.
PN1240
THE COMMISSIONER: Okay. Going off Mr Lewer, the cost of all of those components, of the benefit, is 280.08, right?
PN1241
MR LEVIN: Yes.
PN1242
THE COMMISSIONER: I could be tempted to divide that by four, because it's a four‑year agreement, and then I could be tempted to divide that by 52, but as I understand Mr Luddington's evidence that an employee over the four years of the agreement would actually be accessing that benefit twice.
PN1243
MR LEVIN: Potentially.
PN1244
THE COMMISSIONER: Potentially.
PN1245
MR LEVIN: There would be only the group who access it in the first year would get it in the fourth. The others would get it once.
PN1246
THE COMMISSIONER: Okay.
PN1247
MR LEVIN: So to divide by three would be more appropriate than to divide by four, because you could be certain that that figure divided by three will give them - that they would each receive that.
PN1248
THE COMMISSIONER: Yes, but that gives me then a year where there's no coverage of any benefit, and it doesn't fill in the missing 384. That's what I'm trying to say. So that's why I didn't want you to give me an undertaking, because I don't think it does.
PN1249
MR LEVIN: I'd ask you if you'd be kind enough to take me through that reasoning again.
PN1250
THE COMMISSIONER: Of course, not a problem.
PN1251
MR LEVIN: Thank you. Because I see your 280.08 - the course, the wages, totalling 280.08.
PN1252
THE COMMISSIONER: Yes. What I did initially was to divide that by four, because it's a four‑year agreement, but I'm happy not to; but divide that by four gives me $70.02, and divide that by 52 gives me 1.35.
PN1253
MR LEVIN: Yes, I understand the point you're making.
PN1254
THE COMMISSIONER: Yes, and that seemed to me to be unfair and not reflective of the evidence, so that's why I'm coming back around.
PN1255
MR LEVIN: Yes. I might just ask my client (indistinct).
PN1256
THE COMMISSIONER: Sure.
PN1257
MR LEVIN: While I'm doing this, Commissioner, I wonder if you could just turn your mind to whether the benefit should be 1.3, three three repeating, because people get it on average 1.3 times over four years. Some will get it twice, others will get it once, but ultimately if you do it just point to that. Commissioner, I think my clients have a view that that won't get us there. Just in all honesty, we really appreciate you giving us that opportunity, but we think we've got an undertaking to make; we take it from a different perspective.
PN1258
I'm instructed that the area of uncertainty for those people, any employee, is going to be but what if for whatever reason you just don't give them the overtime. That's the concern - someone who's under the award, because you don't give them any extra overtime. They don't choose to work it; you don't give it to them for whatever reason; it's not in their pay packet. And my suggestion is that because we are talking about potentially such a very - out of the 700 and so employees there's only 232 are new, but that may grow over time, but regardless, if you then take out all of the employees of the new ones who are being rostered overtime, and then you also reduce it - the funnel reduces down for those that are working night shift, then you're down to a very small number, and that could be addressed by an undertaking. Because my client says to me, I can't imagine any of them would ever be under, and if we did a reconciliation every three months then we could commit to that to ensure that we look to audit any employees working at a site where rostered overtime is not part of their roster for a new employee, and that they haven't - they're not working a rostered overtime and they're new.
PN1259
THE COMMISSIONER: Correct - yes, both those.
PN1260
MR LEVIN: Because once you've got new and not working rostered overtime, you're then administratively - if I can just think aloud - down to quite a small number, and I think the Commission needs to take that into account as well: the practicality, will it be done, is it so overwhelming that you have concerns. Because then, by looking at those who haven't worked overtime - voluntary overtime, if I can call it that, or compulsory.
PN1261
THE COMMISSIONER: Yes, as opposed to VOT.
PN1262
MR LEVIN: Just non‑rostered overtime.
PN1263
THE COMMISSIONER: Yes.
PN1264
MR LEVIN: Non‑rostered, not‑voluntary overtime; I think we could provide you with an undertaking to ensure that they then receive a supplementary payment for that quarter, if they are below, that will take them to an amount that is above. Because we are, out of hundreds of people under this agreement, I'd be submitting that it's appropriate to receive an undertaking because it falls outside the categories that concern the Commission. It's a small number, it's manageable, it's defined, it's clear, it's objective. New, clear, not working, rostered for that three months, no risk of people moving from site to site. That would pick them up, and then if they have not worked two hours of overtime - or sorry, an average of - well I'll just say sufficient overtime to - - -
PN1265
THE COMMISSIONER: Yes, to get them - - -
PN1266
MR LEVIN: - - - to get them over that, a supplementary payment would be made each quarter to that effect. In other words, not even seeking to average it over a year, because my client is saying they just don't think there will be any that will fall below because of the need to work the overtime. Even Mr Findley worked some overtime in his daily roster. I'll take it as a given that most people want to work it, but for the person who says I just don't want to, and we don't direct them to work some compulsory overtime, to ensure that there isn't a single person who's under, rather than touching the first aid amount, which would then, I am instructed, sort of throw out of whack everybody else, because it's per shift for 700 people. Better that we address the pocket of concern, the employees at risk, and provide an undertaking that addresses that concern.
PN1267
THE COMMISSIONER: Mm.
PN1268
MR LEVIN: And then we don't need to be factoring in any more than is necessary, and we're down to a small pool of people. They're the ones you have expressed, if I can be candid, are concerned about.
PN1269
THE COMMISSIONER: Yes.
PN1270
MR LEVIN: And I understand why. But I wouldn't want to, on this question of BOOT, have to revise everything for the purpose - I mean, I hope if we were successful today on both matters - but on that alone, it would be helpful if we could find a way of addressing, even if it's one person, some protection for that one person, or six or twenty.
PN1271
THE COMMISSIONER: Mm.
PN1272
MR LEVIN: And if you have any concerns, Mr Luddington could go into the witness box, if required, to confirm to you the very small number of people that would be potentially in that missing out basket.
PN1273
THE COMMISSIONER: Okay. Thank you.
PN1274
MR LEVIN: Thank you.
PN1275
THE COMMISSIONER: Is there anything at this point in time - obviously I think we're in final submissions, closing submissions territory, and the union obviously has a right to be heard on that point as part of the normal process - but I just wanted to double check as to whether there's anything that the union would like to say at this point.
PN1276
MR KENCHINGTON-EVANS: No, thank you, Commissioner.
PN1277
THE COMMISSIONER: Okay. Now, rude question - I'm happy to sit through closings if that suits everybody. It will be a question of how long everybody's going to take, because at some point we might all need a break, so - - -
PN1278
MR LEVIN: If I can indicate that we have - - -
PN1279
THE COMMISSIONER: Yes, I'm not going to hold you to it.
PN1280
MR LEVIN: That we have nothing further to say beyond the matters that have been raised, and we rely on our written submissions as well as what I have already said today.
PN1281
THE COMMISSIONER: All right. Thank you. Mr Findley, how long do you think you might be in submissions?
PN1282
MR FINDLEY: Commissioner, I'd say 20 minutes if there were no questions.
PN1283
THE COMMISSIONER: Is that telling me not to ask you any questions?
PN1284
MR FINDLEY: No, please do.
PN1285
MR LEVIN: I suppose in that regard I truly - I didn't actually factor in I may need to respond to some of the things that Mr Findley may say, so whilst I ordinarily would say let's continue, I wonder whether we might obviously adjourn. I'm happy to work through entirely. I've got no problem. I'm just thinking 20 minutes doesn't tend to be 20 minutes.
PN1286
THE COMMISSIONER: Yes.
PN1287
MR LEVIN: I'm not being rude to Mr Findley, but it's hard for him to estimate how long he's going to take to do things. Thank you, Commissioner.
PN1288
THE COMMISSIONER: I think it's probably best if we have a break, but maybe it's a short break rather than the traditional whatever. Would that suit everybody?
PN1289
MR LEVIN: Certainly. Were you thinking 1.30 perhaps?
PN1290
THE COMMISSIONER: I was.
PN1291
MR LEVIN: It would suit me. That would be a prudent way for us to use the time.
PN1292
THE COMMISSIONER: Yes, I was thinking if we came back at 1.30. Is that going to suit you okay?
PN1293
MR FINDLEY: Thank you, Commissioner, yes.
PN1294
THE COMMISSIONER: Okay. And Mr Kenchington?
PN1295
MR KENCHINGTON-EVANS: Thank you, Commissioner.
PN1296
THE COMMISSIONER: We shall adjourn until 1.30. Thank you.
LUNCHEON ADJOURNMENT [12.59 PM]
RESUMED [1.31 PM]
PN1297
THE COMMISSIONER: Please be seated, everybody, thank you. Mr Levin, may I raise something with you and it's an explanation as to why I was looking - I'm not sure how I was looking, but you didn't get an immediate response to the proposition that you put on behalf of the company in terms of the undertaking for the concerned employees of concern, and the undertaking was regarding an audit. A bell rang and I needed to be sure of what the bell looked like and what its name was before I said anything. So, I would appreciate - I know that you weren't going to make any submissions except in reply to Mr Findley, but the recent Full Bench decision in relation to the MSS Security Queensland Enterprise Agreement dealt with the issue of an undertaking that provided for monthly audits and it was pretty clear about its view in light of the Federal Court decision as to what they thought about the acceptability of that arrangement.
PN1298
MR LEVIN: I did read that decision.
PN1299
THE COMMISSIONER: Yes.
PN1300
MR LEVIN: But my understanding is that that was and would be applied depending on the circumstances of each case. It isn't a decision that makes it a blanket rule that undertakings in terms of an audit and the supplementary payment cannot be made. There will be times where, as I was saying, that the gap, the circumstances, perhaps the number of people involved, the question that the Commissioner might have as to whether it would actually give effect to fixing the problem and I accept that and that is why I was addressing you on - and in that case, for example, the view was that there is a sufficient gap based on how one interprets BOOT for Sundays and whether peoples hours over 304 should be rostered to overtime or to Sunday penalty rates. Although, the decision is not explicit, it is clear that the conclusion was it doesn't meet the BOOT there's too much of a gap. Something like that where you would do an audit would be virtually for everybody.
PN1301
THE COMMISSIONER: That wasn't the issue, I didn't think, in terms of where the Full Bench finally landed because it was quite specific about the undertaking to do the audit contravening section 193A which says that the Commission can accept an undertaking if it's not likely to cause financial detriment to any employee covered by the agreement. Then they were concerned about the monthly bit contravening section 323 of the Act.
PN1302
MR LEVIN: Fortnightly pay, yes.
PN1303
THE COMMISSIONER: Correct. So, therefore, in light of the quashing of the previous Full Bench's decision by the Full Court of the Federal Court and by the look of it they have taken into account the decision fully taken into account the decision of the Full Court of the Federal Court they have indicated that they're not - they do not believe that it's acceptable for an undertaking to have the audits and all the component to it. That is how I read it.
PN1304
MR LEVIN: Yes. There is another way which I am not sure if anyone has yet adopted it, but because although it's not - I'm the partner in that matter - in that Queensland MSS decision. So, I have had my opportunity to turn my mind to what would one do differently and I think the answer is to actually provide an allowance. So, rather than it be an audit, it's actually a payment. And so if this agreement were voted again and we had our time again and we knew everything we knew today and if your view was the same as every - if your view was a generic Commission view and we had to do something, I would put in an allowance that's calculated quarterly.
PN1305
I would actually put it as a clause of the agreement that says each employee who - and I am speaking hypothetically - each employee who works - is a new employee and works without any rostered overtime over this three months will receive a certain amount of money. It's not an audit. It's a payment. It's a right. The challenge, I suppose, one might say is, depending on the interpretation, is what if someone is behind for two weeks because they don't work it in those two weeks and therefore they are behind. And so you have got to be better off overall under the agreement. So, the question then is whether a flat amount of payment that isn't just a top-up but an actual payment gets to the point where the Commission says, "Well, that's overall more beneficial." So, it's not an undertaking, it's not an audit.
PN1306
THE COMMISSIONER: Because doesn't it come down to, Mr Levin, for that period of time, whatever the period is, the particular case or type of employee that we are talking about is actually better off under the award.
PN1307
MR LEVIN: If you look at it for two weeks. That's the point. And so it would be the same as saying - and I am not sure if this would be right if the Full Bench were taken to be saying that if you paid all employees a $10,000 bonus per annum that that somehow - I would have thought, and perhaps it is from the side of the commercial tracks that I come from, that it would be better off overall to get $10,000, call it 100,000 to exaggerate the concept, than it is to be for two weeks less than the award for those two weeks. So, I don't know beyond that. Because the point I'm making, it's one thing or the other. Either there is no agreement that can be approved if for any two-week period a person could be under the award or not.
PN1308
So, the $100,000, they would have to say, "Well, unfortunately, that's a breach because they are under for two weeks", and the million dollars that they get doesn't outweigh it because it's a breach. It's either one way or not and someone would need to test that. I don't know. Because that's what it boils down to. Can you ever have an employee, one out of a thousand, who for two weeks is under but at the end of a period is a million dollars over?
PN1309
THE COMMISSIONER: Yes.
PN1310
MR LEVIN: That's the concept in question.
PN1311
THE COMMISSIONER: Yes.
PN1312
MR LEVIN: I can't answer it because I really don't know. I haven't formed enough of a view to postulate an answer to that, other than to say that I don't think that that's what - I don't think that's the intention of the legislature. I think under the award per se it is there and is there for a reason. It's to avoid the mischief of someone being underpaid for those two weeks if you were just looking at the award. But when you are looking at a better off overall test, I would have thought that the legislative intent there is: does this agreement give someone overall pluses and minuses just like the fire aid allowance? Many, many agreements just don't give you an allowance. There is no allowances in there anymore. It is all just the amount - - -
PN1313
THE COMMISSIONER: It's rolled up rates.
PN1314
MR LEVIN: Correct, and it could be that some weeks you are up, some weeks you are down. So, I think that the mischief to be remedied by BOOT, in my submission, is not about whether an award provision is breached, but whether the agreement is better than the award overall.
PN1315
THE COMMISSIONER: That is in paragraph 42, what the Full Bench has said, and it is referred to the comments of the Full Court of the Federal Court and I apologise I haven't had a chance to read that judgment. But it's whether the delay is one month or three months, the employees are financially disadvantaged under the agreement as there is a delay in the payment of the remuneration that they are under the award entitled to.
PN1316
MR LEVIN: This is my point and this is what wasn't addressed by them in this decision, with respect, is this. There is a delay. It's difficult. I don't want to talk about that decision or those Commissioners, but just in conceptual terms, it seems to me - - -
PN1317
THE COMMISSIONER: It's a Full Bench, I have got.
PN1318
MR LEVIN: No, no, I am just simply saying I am not personalising it to - but as a broader context.
PN1319
THE COMMISSIONER: Yes, yes. No, no, no. It's a decision.
PN1320
MR LEVIN: It seems to me that what is missing there is the delay question is not answered as to but what if the better off overall test - which is what they were applying. They weren't assessing anything else. The only statutory exercise was better off overall and it seems to me a bit jarring to say that, again taking my extreme example, that a two-week delay of getting one cent, unquestionably, say weeks' pay at one cent, well, the point is it is either absolute or it's not. It is either able to be outweighed or it is just simply not and it seems to me contrary to the purposes of the BOOT test to say that a one-cent clear underpayment under the award for two weeks is not outweighed by a hypothetical million-dollar payment that comes two days later.
PN1321
Yes, they were suffering that delay, but what is the balancing factor? So, again, I am just, sort of, restating. I understand the decision, but I would have thought that it can only stand for a decision on that set of facts, not pronouncement on that question that I have just raised. It does not say that there is no amount of offsetting that can ever mean that the agreement can't pass the BOOT. I am not sure it says - I don't think it goes that far. I think they have made that decision and said, "Well, there is a delay here", but that has got to be taken as in the context of assessing a BOOT assessment. I am not sure if you see it that way.
PN1322
THE COMMISSIONER: The Full Bench wasn't addressing a question of an allowance being paid fortnightly routinely. It was, as I understand it, addressing a question about whether it was acceptable for there to be a written undertaken that there would be an audit of the amount of overtime and that is the context in which they have said what they have said. So, they haven't dealt with the question of, well, if with their people's fortnightly pay there's an allowance that technically - - -
PN1323
MR LEVIN: It's paid once a month, for example.
PN1324
THE COMMISSIONER: Yes, or - - -
PN1325
MR LEVIN: Under the EA versus the award that's every week or something.
PN1326
THE COMMISSIONER: Yes, well, yes, they weren't - sorry, you said fortnightly, so I just assumed that people were fortnightly paid because was three-month to one-month and then post Federal Court - - -
PN1327
MR LEVIN: They were paid fortnightly, but the proffered undertaking was first three months, then one month.
PN1328
THE COMMISSIONER: Correct, and then not acceptable - - -
PN1329
MR LEVIN: Correct.
PN1330
THE COMMISSIONER: - - - in light of the Federal Court decision.
PN1331
MR LEVIN: With that Federal Court decision assessed on the facts of that case.
PN1332
THE COMMISSIONER: Yes, correct.
PN1333
MR LEVIN: So, what it doesn't say and I don't know because they haven't said is, does that mean that if you have an award payment, an award allowance that is paid every shift, for example, and it would total each shift. Let's say you worked 20 shifts a month and it's a dollar a shift and that you were down until the 30th or 31st - the first day of each month you have been underpaid that allowance, but then the day afterwards instead of 20, you get 100. What they haven't said there is, how would that fit. Would the benefit - so, not an audit, but if there were a benefit in the agreement that said we paid the allowance monthly - - -
PN1334
THE COMMISSIONER: Yes, yes, I understand.
PN1335
MR LEVIN: - - - and if offsets the disadvantage of delay because, yes, under the award you would get it each two weeks, but here you are getting it once a month, 12 times a year, we don't know, and what I would submit is that that is not therefore binding on a decision to assess an agreement because there are plenty of agreements that don't pay with the same frequency that the award would pay but clearly are far more beneficial because they have been negotiated by unions, you know, over many, many years. So, I can't say any more than that.
PN1336
THE COMMISSIONER: Mr Levin, I am bound by Full Bench authority and the alternative that you have floated to the one that prompted me to identify the bell, that is the authority I am required to follow as a member of the Commission. In terms of the alternative that you floated, to be honest, on the fly, I don't know. I haven't had the opportunity to think about it and formulate a view.
PN1337
MR LEVIN: Yes, yes, I understand.
PN1338
THE COMMISSIONER: But in the terms of the undertaking that you offered as a way to remedy the BOOT concerns, the answer to that is: no.
PN1339
MR LEVIN: Yes, thank you. I might turn my mind to any - well, perhaps, before - no, Mr Findley's submissions are not on this point.
PN1340
THE COMMISSIONER: Mr Findley - no, no.
PN1341
MR LEVIN: So, I can continue to exercise my mind.
PN1342
THE COMMISSIONER: That's why I apologise, Mr Findley, for raising it ahead of you making your submissions, but I thought it might be the fairest way to do that.
PN1343
MR LEVIN: No, I appreciate that and it may be that something else pops into my mind that's in a different form of undertaking that may change something else that doesn't involve an audit. I am not going to take you to a proposal that involves some form of audit. Thank you.
PN1344
THE COMMISSIONER: That would be greatly appreciated, Mr Levin, thank you. Mr Findley.
PN1345
MR FINDLEY: Thank you, Commissioner. I have received a copy of a letter from the Commission dated 23 January 2016 to MSS outlining issues it wants to address. It didn't have a name, but I assume that's from you, Commissioner.
PN1346
THE COMMISSIONER: I don't know what you are talking about.
PN1347
MR FINDLEY: Sorry, it's a three-page document saying to MSS: "I would like you to look at this and that."
PN1348
THE COMMISSIONER: Yes, I think I remember that. That was January, yes? January?
PN1349
MR FINDLEY: 23 January.
PN1350
THE COMMISSIONER: Yes, yes, the timing is about right. Cool, thank you. All right, thank you.
PN1351
MR FINDLEY: I refer to paragraph 11.
PN1352
THE COMMISSIONER: Yes.
PN1353
MR FINDLEY: It says:
PN1354
A further area of overlap between the BOOT issues and section 180(5) and 188 is the questions raised by Mr Findley of whether the information provided by MSS and by United Voice to employees/members was misleading. It is my view that the answer to this question will turn on whether the Commission finds that the proposed agreement meets the BOOT. Obviously, if the Commission finds that the proposed agreement meets the BOOT. Mr Findley's contentions in this regard fall away and the opposite will also apply.
PN1355
Commissioner, MSS also took issue with this section of your letter at paragraph 68 of their submissions. As the Commissioner has stated, I agree that if it does not meet the BOOT, it is self-evident that employees' consent was not informed. Why would any informed person choose something that is worse than the default. Clearly, for this to happen, they were not informed and I appreciate that you have identified this. However, I do say, with the greatest respect, that I think that this line of thinking is restrictive.
PN1356
Employees did not vote to be simply better off. They voted to be 0.05 and 3.5 per cent better off, respectively. They voted believing that penalty rates, allowances and overtime, would be equivalent to that of the award. They voted believing they had a guaranteed annual increase based on union flyers. It is respectfully submitted that if the agreement does not reflect what they were led to believe than what they voted on, then the vote was not an informed choice.
PN1357
I will move on to the ballot. Commissioner, you have heard evidence of the four methods of distribution post distribution through site managers sent to me via email and the employee portal. I will address the postal option. Mr Luddington conceded that the postal method would not have reached employees by the start of the access period. So, just to summarise, he posted it on the Friday. It was meant to be received on the Saturday. It wouldn't have been received, in his words, by Monday or Tuesday. So, that is not a reasonable step in itself.
PN1358
It was also distributed by site managers. Mr Luddington conceded that employees did not receive the ballot notice by the start of the access period. Mr Luddington conceded that those at Deakin and Monash, a total of 65 employees, didn't receive that and that's just what he knows of. I ask the Commission to look at all the casual employees that haven't worked at that period at all. There was a 24-hour window that they had to look at they had to get that document for it to be reasonable steps.
PN1359
I think, and I am sure Mr Levin will correct me if I am wrong, but I think about 30 per cent are casual employees. They wouldn't have worked that day. They don't have a permanent site. So, they wouldn't have received it by that means either and people that do have a permanent site that were on sick leave or holidays, there is no chance they would have got that because they're in Bali. So, Matt said to me that he emailed the document to me. There is evidence that he notified one employee out of 697 by the start of the access period. So, I can say to a fact that he did tell one employee, but there is no evidence that he has told anyone else and that anyone else actually received the notice before the start of the access period.
PN1360
Now we turn onto the portal. The standing instructions which many employees signed did not refer to the employee portal. As you saw as Matt gave evidence, Commissioner, the document was not the one - the document he provided to you that had the employee portal clause, was not the one that I signed and I started in January last year. So, therefore, any employee that started from then backwards, those that had been working for MSS for 25 years of five years, that clause wasn't included in the agreement.
PN1361
So, in any case, it does not create an obligation or expectation on employees to regularly access the employee portal. As I asked Mr Luddington: "Can you point out where it creates an obligation for an employee to look there?" And he couldn't. He simply says, and as you can read yourself, Commissioner, that it says: "The employee portal is there. This is how you log in. It's there." And that's pretty much - there's no obligation for employees to look at it. My affidavit shows credible evidence that training, notices and pay slips are accessed by other means. The truth is, employees do not and are not required to access the portal on a regular basis, if at all. As stated earlier, it is the electronic equivalent of putting the document in a bottom drawer.
PN1362
Four flawed methods do not make up for one effective method and are far from taking reasonable steps to notify employees with reference to section 180(3).
PN1363
Contrary to MSS's submissions at paragraph 30, I have given credible evidence supported by relevant material in my affidavit at paragraph 8 showing that important notices are distributed to employees via site email. They do not rely on the portal for notices. Contrary to MSS's submissions in paragraph 29, there is no evidence put before the Commission that employees regularly access the employee portal even when Mr Luddington was directly asked.
PN1364
As I have stated at paragraph 6 and 7 of my affidavit, even after managers explicitly instructed employees to complete training modules, they failed to do so. MSS have resorted to providing hard copies as they know employees do not go on there. Leave forms and important OH&S information are distributed by site managers. Matt has given no indication or provided any proof of portal usage.
PN1365
So, now we turn, I guess, to the standing instructions, Commissioner. As I have said before, the standing instructions do not create an obligation. Those that signed it, the majority of employees that were employed before I was employed, which is probably not - I am taking a guess, but probably 95 to 90 per cent - they signed that document without the necessary clause talking about the portal. And even if they did, let's just assume that everybody signed that, that everybody signed the document with the employee portal in it. It does not obligate them to check or encourage them to check the internet site.
PN1366
With respect, and I don't mean any malice with this one, Mr Levin - sorry - has produced a strawman argument at paragraph 32 of his submissions that I have elevated the test of reasonable steps to requiring MSS to establish in a definitive way that they complied with section 180(3). I do not expect MSS to establish in a definitive way that they have complied with section 180(3). I simply submit that no reasonable steps were taken to comply with that section. It is more than likely that I was the only one out of 697 employees who actually received the ballot notice before the access period. That is because Mr Luddington emailed me personally and I was the only person eligible to vote that received that email.
PN1367
At paragraph 37 of MSS's submissions, they request the Commission to ignore the requirement of section 180(3) because the voting periods span nine days. The requirement of section 180(3) is clear: by the start of the access period. Section 180(3) was not complied with, therefore, it is submitted that the agreement must fail. Applying the reasonable steps test outlined in section 180(3) must include that MSS's four failed inadequate attempts to distribute the ballot notice does not meet the requirements of the Act.
PN1368
I will move on to the next point unless you have got any questions, Commissioner.
PN1369
THE COMMISSIONER: No, thank you.
PN1370
MR FINDLEY: The explanatory document admitted unfavourable terms. For example, the drop in the VOT rate. Mr Luddington has confirmed that the changes document which supports the explanatory document admits one very significant change which is the sign-on bonus which induced the vote of approval. I was trying to bring it up before. It was probably the wrong to bring it up before, Commissioner, but what happened and what my understanding is with the vote of approval, this was actually told to me and I don't have access to the old documents, but I was told this by one of the union employee representatives that vote 3 failed and vote 4 passed. The only difference was is that MSS put the sign-on bonus in.
PN1371
The sign-on bonus, to really emphasise this point, it's a big thing. $500 to a security guard is a lot of money and that's what induced the last vote of approval. So, the fact that MSS took it out and they didn't put it in the changes document and it's so significant that it actually induced the fourth vote of approval, that is a big change. A lot of the MSS employees that were around at that time, four years ago, they remember: "We voted 'yes' and I got $500." Look at the changes document: "Well, we will get the $500 again." So, I think because that induced the vote of approval the fourth time, it definitely, I guess, induced the vote of approval this time because it was omitted from the changes document.
PN1372
I have briefly questioned Mr Luddington about the union flyer. The union flyer, I think I will just quickly go through some of the points. The important thing is, Commissioner, I would like to say is this flyer was given to members of the union, but those many union members are, you know, up to join our union, which was great, and they put it all around, all the flyers around. So, not only did the union people see this document, non-union people did as well. So, I would say that if we look at it logically, Commissioner, there is a 62-page enterprise agreement. There is a 15 or so page explaining the effects of the terms agreement. There is a six-page, "These are the changes", and there is a one-page document from somebody everybody trusts, which is the union, that outlines what the agreement is, and that document is misleading.
PN1373
I can say, Commissioner, before I was engaged in this process, I have never read an enterprise agreement and probably a year ago before I started that, I didn't even know what one was and I talked to the security guards and they don't know what they are. So, I would say that no one would read the enterprise agreement and if they could read the enterprise agreement, they wouldn't understand it. That is why the legislature has stated in section 180(5) that they have to explain the terms of their effects to employees.
PN1374
What MSS did is they explained the terms of the effects, but not all of the detrimental ones and they had a second document that supported that which is the changes document and it didn't have the biggest or arguably the biggest or something very influential, the $500 sign-on bonus. But then the union produced a document. So, now we will look at the document, Commissioner, which exhibit I think it is 17 of my affidavit.
PN1375
So, it says that: "Increases equal to annual government wage decisions with a minimum guarantee of eight per cent over four years." As Mr Luddington has said under oath, that only applies to existing employees. There is no guarantee of new employees that they have this pay rise. Pay rises, I would say, Commissioner, and I am sure that everybody in this room would agree that pay rises are a significant factor. It says that new guards are off the award. I think we in disagreements with this, Commissioner. I will skip that point just to save it.
PN1376
THE COMMISSIONER: Mr Findley, can I just put maybe a bit more coherently this time what I tried to say last time and I apologise for interrupting. The Act requires the employer to provide - take all reasonable steps to explain the terms of the agreement and duh, duh, duh. This was the union's document.
PN1377
MR FINDLEY: Sorry, Commissioner?
PN1378
THE COMMISSIONER: The document you are referring to me.
PN1379
MR FINDLEY: Yes.
PN1380
THE COMMISSIONER: You know the one that is attached to your affidavit.
PN1381
MR FINDLEY: Yes.
PN1382
THE COMMISSIONER: That was not a document that was provided by the employer to the employees and wasn't in the bundle of material that, you know, we have talked about a lot today.
PN1383
MR FINDLEY: Thank you. I appreciate you directing me.
PN1384
THE COMMISSIONER: Yes.
PN1385
MR FINDLEY: So, the reason I brought this up is an argument under section 188(c), that there is no other reason that the agreement wasn't generally agreed to. It says something like that.
PN1386
THE COMMISSIONER: Yes, yes, yes. No, it does.
PN1387
MR FINDLEY: So, it's not for MSS - it's not their fault. The union distributed it. It induced - or, I say, and I reckon that it changed a lot of votes - it induced the vote of approval. Therefore, you cannot be satisfied under section 188(c) that it has been genuinely agreed to.
PN1388
THE COMMISSIONER: The problem I have got with that is that that is all assertion and assumption. There is no evidence that this is what happened and at the end of the day - how can I say this? At the end of the day it's the documentation that the employer provides because they are the employer.
PN1389
MR FINDLEY: I understand.
PN1390
THE COMMISSIONER: Does that make sense? And I am not being rude about any other party. But from the Commission perspective, the employer is required to provide documentation under the Act. They have done that. It's pretty comprehensive. I respect, you know, obviously, as one does, whatever the union does as part of that. But from a statutory point of view, I don't think that the connection can be drawn as you are seeking to do it.
PN1391
MR FINDLEY: Commissioner, if I could table this document? I am going to bring up some case studies shortly and I think that the case studies show it stating that pretty much everything should be considered before the Commission. I will have a talk about that.
PN1392
THE COMMISSIONER: Well, (a), part of the terms of engagement for you being here today was, if I recall, that you weren't going to be providing any further material, no further - - -
PN1393
MR FINDLEY: No, I'll just be - what I plan - the case studies which I say are directly copied from my written submissions. What I will be doing is quoting the case studies and give an example of MSS did contrary to that case study. So, the case study would say that the consenters need to be informed.
PN1394
THE COMMISSIONER: What do you mean by "case study"?
PN1395
MR FINDLEY: Sorry, yes, decision, precedents.
PN1396
THE COMMISSIONER: Okay, right.
PN1397
MR FINDLEY: Sorry. Thank you.
PN1398
THE COMMISSIONER: Okay, yes.
PN1399
MR FINDLEY: So, I will go into the precedents now, Commissioner.
PN1400
THE COMMISSIONER: Yes, sure.
PN1401
MR FINDLEY: As per my submissions in paragraph 112, Deputy President Asbury in Central Queensland Services - do you want me to read out the whole citation or just - they are in my submissions.
PN1402
THE COMMISSIONER: I have got paragraph - I have got the right paragraph, so I'm good. No, thank you.
PN1403
MR FINDLEY: Thank you, Commissioner. I will just state the first name so you will - --
PN1404
THE COMMISSIONER: Yes, that's great. Thank you.
PN1405
MR FINDLEY: So, Central Queensland Services undertook a detailed analysis of relevant cases to the proper interpretation and application of 188(c) which was ratified and adopted by two Full Bench decisions in KCL Industries and the MUA v Toll. I reiterate and emphasise the critical points of this binding precedent as outlined in paragraph 113 of my submissions. It says that a consideration of all relevant circumstances is required in order to ascertain whether there are reasonable grounds for rejecting the genuineness of the agreement. That was a quote from the Manfield Colair.
PN1406
That is where, Commissioner, respectfully, I would say that the union flyer is relevant because any material that induced that vote of approval should be a consideration for the Commissioner. So, I am not saying - so, what will then happen, like, let's depersonalise United Voice (indistinct). Let's say the SDA v McDonald's. If the SDA - - -
PN1407
THE COMMISSIONER: That's not a good example.
PN1408
MR FINDLEY: Pardon? No, that's why I brought it up. It's a bad example. So, what I would say is that McDonald's could do everything by the book and submit long, lengthy explanatory documents and then the SDA come along and say: "Everything is great. Everything is merry."
PN1409
THE COMMISSIONER: But, look, I don't have any evidence. You have had Mr Luddington under oath say that there is no - anything untoward in the relationship between the company and the union.
PN1410
MR FINDLEY: Yes.
PN1411
THE COMMISSIONER: All you are providing me is a flyer that can be read a number of ways and you and I differ as to the way that it is read.
PN1412
MR FINDLEY: Yes.
PN1413
THE COMMISSIONER: But there is no evidence before me. You are not persuading me because you are asserting, but where is the evidence.
PN1414
MR FINDLEY: The point that I made is that I am not asserting the relationship between MSS and the union.
PN1415
THE COMMISSIONER: No.
PN1416
MR FINDLEY: What I am saying, Commissioner, is that this is a document that was seen by hundreds of employees and I would say based on that document it led to an uninformed vote.
PN1417
THE COMMISSIONER: That is the assertion. That is what I am talking about.
PN1418
MR FINDLEY: I have got no proof that it has and you will never get that.
PN1419
THE COMMISSIONER: That is another sweeping statement.
PN1420
MR FINDLEY: Yes.
PN1421
THE COMMISSIONER: Mr Findley, I respect the things that you are trying to say to me, but they are assertions. We tend to be a bit more fact-based data-driven here because we have to be.
PN1422
MR FINDLEY: Yes.
PN1423
THE COMMISSIONER: I have got to be able to be open and transparent and prove the basis on which I make a decision and that requires some evidence.
PN1424
MR FINDLEY: Yes.
PN1425
THE COMMISSIONER: Does that make sense?
PN1426
MR FINDLEY: It does, Commissioner.
PN1427
THE COMMISSIONER: Yes, so, that's the difficult I've got. I understand what you're saying, but I am not being persuaded.
PN1428
MR FINDLEY: Okay.
PN1429
THE COMMISSIONER: You haven't persuaded me on that one.
PN1430
MR FINDLEY: Could I continue with these cases?
PN1431
THE COMMISSIONER: Of course.
PN1432
MR FINDLEY: Circumstances including provision of material information to employees which has the character of being misleading. This is the Peabody Moorvale precedent.
PN1433
THE COMMISSIONER: Yes.
PN1434
MR FINDLEY: So, if an explanatory document or a document is circulated and, quoting this, has the character of being misleading, that it can lead to you, Commissioner, making a conclusion under section 188(c) that there are reasons why the agreement wasn't agreed to. So, although I can't prove that employees did change their vote. What I can prove is show you three documents, the explanatory document, the changes document and the union flyer, and you can see what employees had that based their decision on it. And those three documents are all misleading in different ways.
PN1435
So, what I am saying is not that I can't give any proof that employees will change their vote in that respect, but it would be a consideration under section 188(c) that it would - how do you say it - the Commission must be satisfied that there was no genuine - no other reason that the agreement wasn't genuinely agreed to. So, I would say that that would be a consideration. There is no proof, but with three misleading documents were the sole documents distributed to employees and the vote of approval came back, I would say that that is relevant.
PN1436
Where the approval is affected by a material non-disclosure or there is a scheme underpinning agreement about which the employees were not informed, it will be relevant to the Commissioner's assessment of whether the agreement has been generally agreed by employees. This is the Grocon precedent that is still in that paragraph ratified by the two Full Benches. The scheme that is underpinning this agreement, Commissioner, is employees thinking that they're 3.5 per cent or 0.5 per cent respectively better off. See, people vote on, "Okay, I'm going to be 0.5 per cent above the board", but they are not told about the first allowances.
PN1437
THE COMMISSIONER: Okay. Mr Findley, the reason I am interrupting - and I'm sorry - and giving you direct feedback - real time feedback - is at the end of today I am hoping to be able to give a decision in transcript and I am hoping to do that because this matter has been going on a very long time for everybody.
PN1438
MR FINDLEY: Yes.
PN1439
THE COMMISSIONER: And it's time that the Commission was definitive about which way it's falling; okay?
PN1440
MR FINDLEY: Yes, Commissioner.
PN1441
THE COMMISSIONER: I am not going to be able to remember all of your points. I am just being practical.
PN1442
MR FINDLEY: Yes.
PN1443
THE COMMISSIONER: So, the ones that I think I am going to forget, if I may, I will give you a response to them at the time.
PN1444
MR FINDLEY: Please.
PN1445
THE COMMISSIONER: I have done one and I think I am about to do another. Because can I just double check, the basis on which you are alleging that the three documents and for my purposes I think there are only two in terms of the Act, are misleading because they (a) leave out stuff, right, like the sign-on bonus, for example, and then the other thing is that they misrepresent in that it says that, you know, there is X wage increase and whatever, but in reality that is not what it is when you look at the award. Is that your comparator?
PN1446
MR FINDLEY: Yes.
PN1447
THE COMMISSIONER: The award or the previous agreement?
PN1448
MR FINDLEY: I would say that it is compared to the award and I am going to bring up the Toys R Us case study in a minute.
PN1449
THE COMMISSIONER: Yes.
PN1450
MR FINDLEY: The explanatory document must be compared to the award and I will bring that up in a second. But the changes document was a voluntary document submitted by MSS supporting that explanatory document.
PN1451
THE COMMISSIONER: Yes.
PN1452
MR FINDLEY: And that's not as compared to the award. The changes document is deliberate. The changes document says these are the differences between the current agreement and the proposed agreement.
PN1453
THE COMMISSIONER: Yes.
PN1454
MR FINDLEY: That's the purpose of it.
PN1455
THE COMMISSIONER: Yes.
PN1456
MR FINDLEY: And that misled employees. So, if MSS want to introduce the changes document voluntarily as a supporting document to the explanatory document then that has to be considered and incorporated into the decision of whether or not it is misleading.
PN1457
THE COMMISSIONER: And it is misleading because?
PN1458
MR FINDLEY: The changes document, Commissioner?
PN1459
THE COMMISSIONER: Yes.
PN1460
MR FINDLEY: The changes document is misleading because of the $500 or two $250 sign-on bonus.
PN1461
THE COMMISSIONER: Yes, yes, so that was that one. Okay, the other one?
PN1462
MR FINDLEY: The explanatory document didn't tell employees.
PN1463
THE COMMISSIONER: Yes.
PN1464
MR FINDLEY: So, everybody knew they were 3.5 per cent above the award.
PN1465
THE COMMISSIONER: Yes.
PN1466
MR FINDLEY: But there was a scheme underpinning the agreement with reference to Peabody and Grocon. There was a scheme underpinning the agreement which they don't actually get 3.5 per cent above the award because it is cut away in various other ways.
PN1467
THE COMMISSIONER: Hang on. I think this is where you and I had this conversation in terms of the union flyer. 3.5 per cent above the award, any per cent above the award is normally the wage rates.
PN1468
MR FINDLEY: Yes.
PN1469
THE COMMISSIONER: That's the common parlance.
PN1470
MR FINDLEY: Okay.
PN1471
THE COMMISSIONER: Yes?
PN1472
MR FINDLEY: I understand that. Yes, I understand that.
PN1473
THE COMMISSIONER: Yes.
PN1474
MR FINDLEY: But what I am saying is that they weren't told about things chipping away at that. So, the things that are chipping away at that are first aid allowances, the overtime, the forced overtime. I would have to say, I don't get overtime at my roster and people at Deakin don't get as much as they say. People at Deakin get 0.4 a week, not what they are saying. It is - how do you say it - it is hard not to go into the BOOT issues, Commissioner.
PN1475
THE COMMISSIONER: Yes.
PN1476
MR FINDLEY: But what they are stating is not right. I guess with relevance to what we are talking about now, the employees thought they were 0.5 per cent better off because the union flyer says that permanently move them off the award. But Kim's roster, which is exhibited to my affidavit, shows that she is worse off. A lot of people are worse off under the agreement than the award. MSS have their own tables, but my table said something different. There are different ways to calculate things, Commissioner. So, I guess, my point is that the employees thought they were getting one thing, but they didn't know about the little things that chip away at the side and that was the purpose of the explanatory document. The explanatory document should have said you only get 20 per cent at night time or - - -
PN1477
THE COMMISSIONER: Compared to the award?
PN1478
MR FINDLEY: Yes.
PN1479
THE COMMISSIONER: Yes. You and I are going to disagree on that one.
PN1480
MR FINDLEY: I would like to put my argument forward that the explanatory document has to be compared to the award. The facts of the case where the genuineness of agreement of employees has been brought into question are instructive. In Toys R Us, it was found that the material supplied by the company to employees did not fully disclose the impact of the agreement when compared to the existing award conditions. That precedent is just over 20 years old and was set by Commissioner - sorry, President Ross.
PN1481
THE COMMISSIONER: Yes.
PN1482
MR FINDLEY: I shouldn't say that on transcript.
PN1483
THE COMMISSIONER: Yes, off with your head.
PN1484
MR FINDLEY: Back then, that was a Commission decision, but it was adopted by two Full Benches. So, that is seen as - my interpretation of it and please correct me if I am wrong - that I see that as a binding precedent because two Full Benches said it must be as compared to the award. And then I would argue that it's rather common sense, Commissioner, that I would say that it is really appropriate that they do compare it to the award because employees have to decide, do they want (a) or do they want (b). And the options have to be explained to them properly whether or not they want (a) or they want (b).
PN1485
THE COMMISSIONER: But isn't (a) and (b) the current agreement versus the proposed agreement?
PN1486
MR FINDLEY: Well, I guess there is (a), (b) and (c), Commissioner, because - - -
PN1487
THE COMMISSIONER: No, I don't think there is (c). You have got an existing agreement which is a comprehensive agreement, a standalone agreement. It has no - in terms of determining employee's terms and conditions, it is it.
PN1488
MR LEVIN: I would like to be provided with this authority. I would be interested to see whether the decision was made in a circumstance where it was an agreement for the first time and therefore needed to be compared to the award because there was nothing else as opposed to one agreement replacing a prior one.
PN1489
THE COMMISSIONER: Yes.
PN1490
MR FINDLEY: That is paragraph 113 of our written submissions.
PN1491
MR LEVIN: Have you got a copy of that case?
PN1492
MR FINDLEY: I don't, no.
PN1493
THE COMMISSIONER: Which one was it?
PN1494
MR FINDLEY: I have got an edited version here. It was paragraph 113. It was the Toys R Us case.
PN1495
THE COMMISSIONER: That was back in 20 - years ago. That was a legislative regime, I think.
PN1496
MR LEVIN: It would have been under the Workplace Relations Act.
PN1497
THE COMMISSIONER: Correct.
PN1498
MR LEVIN: Yes.
PN1499
THE COMMISSIONER: It was.
PN1500
MR LEVIN: And I am wondering - - -
PN1501
THE COMMISSIONER: And I think that was what was required then.
PN1502
MR LEVIN: And I am wondering whether the Full Bench decisions that are being mentioned are also prior to the Fair Work Act.
PN1503
THE COMMISSIONER: No.
PN1504
MR FINDLEY: 2015 and 2016 are the Full Bench decisions.
PN1505
THE COMMISSIONER: Yes. No, I agree with Mr Findley on that bit. No, it is only the Toys R Us one.
PN1506
MR LEVIN: Yes.
PN1507
MR FINDLEY: So, Commissioner, could I ask, is that the position of this court that the award is - that it must be explained as compared to the award as per that precedent, the two Full Bench decisions or it is not?
PN1508
MR LEVIN: I'm sorry, I object. I am hesitant to object to submissions, but it is a submission. It is not a question and answer session for Mr Findley to be informed by your thoughts, respectfully.
PN1509
MR FINDLEY: So, do I keep arguing because that's a very crucial point? Should I keep arguing if I have sold you on it?
PN1510
THE COMMISSIONER: No, you haven't sold me on it, but keep going.
PN1511
MR FINDLEY: Okay, thank you, Commissioner. So, again just to reclarify, it was the precedent was set by the now president of the Fair Work Commission and it was supported by two recent Full Bench decisions of 2015 and 2016 and again it states that the company to employees did not fully disclose the impact of the agreement when compared to the existing award conditions. It is clear from that precedent and from the two Full Bench precedents that the terms must be explained; as compared to the award because if it is compared to another agreement, the current agreement that MSS has is not a great agreement. Yes, subjective.
PN1512
But they can't form a decent opinion when they have two bad options. Surely, they have to be told about the default. So, if this agreement failed then the current agreement got terminated because it's reached its nominal expiry period, their benefits and wages will increase to the award. So, surely, Commissioner, I submit, that they should know what the minimum is and then what the proposal is and then work out what they want. And that's what the precedent says. The precedent says you have to compare it to the award and that's a really important point because again to try and depersonalise MSS, it's like McDonald's. If McDonald's came up with a new agreement and compared it to their current agreement, employees are never going to get a decent agreement through. But if McDonald's and you, Commissioner, if you created a decision that forced employers to actually explain to - employers to actually explain to employees the differences between the proposed agreement and the award minimum, that might end up in rejected votes. So, these bad agreements, you know, McDonald's, KFC, Hungry Jack's, they're not going to get through to the Commission because the employees will actually know what they are voting on and they will turn it down.
PN1513
So, I think it is really important that the employees know. This is the default. You can't go lower than that and this is what MSS propose and MSS say: "Well, we'll give you 0.5 per cent, but we'll take away first aid allowances, night loading", you know, and then they can do that act as compared to the default and that's what the precedent says, Commissioner.
PN1514
So, MSS have been explicitly told by a decision issued by a member of the Commission during the current agreement that, and I quote:
PN1515
Circumstances could arise where the omission of the information in an explanatory document or the highlighting of some issues over others could be used in a manner to mislead. If that was the case, that would indeed impact on whether the agreement was genuinely made.
PN1516
That was the FWCA 1474 of 2011. So, what that says, Commissioner, is certainly omissions may lead you, under section 188(c) or 180(5) to conclude that it wasn't genuinely agreed to because MSS omitted the sign-on bonus which was a crucial factor in agreement 4 and the explanatory document, it didn't explain any unfavourable terms to the extent that would be needed to make an informed choice. Highlighting overtime clauses which rarely apply and this is where Mr Levin and I differ is the forced overtime provisions is rare and if those forced overtime - so, ordinary overtime, I should say - - -
PN1517
THE COMMISSIONER: It is not on the evidence before me.
PN1518
MR FINDLEY: Yes, so they have cherry-picked different rosters. Out of 700 people, they are not going to give you rosters to say: "Okay, we have done bad."
PN1519
MR LEVIN: Sorry, how is this relevant to the submissions that he is entitled to make? I think that sounds - it is sounding like a BOOT submission to me.
PN1520
MR FINDLEY: Well, I'd say it's - - -
PN1521
THE COMMISSIONER: It's under proper explanation - did not take all reasonable steps to properly explain the terms of the agreement and the effects, I think.
PN1522
MR LEVIN: Thank you, Commissioner, yes.
PN1523
MR FINDLEY: So, with respect, what I was trying to say is it's the highlighting overtime clauses. I don't want you to take this comment into consideration with the BOOT, but I am telling you that in my experience at Deakin, that overtime clause is rarely applicable or forced overtime that's - sorry, I will correct that. Overtime that's built into a roster is not applicable in the control room and for the people that are on site, it's only 0.4 per week which is not the large amount that they are concluding.
PN1524
So, overtime, I rarely get this overtime because the fact is, Commissioner, is - so highlighting - so, I am only saying this because I am highlighting ordinary overtime and voluntary overtime. The fact is that if a shift comes up, MSS will offer it to subcontractors or they will offer it to casuals before they - - -
PN1525
THE COMMISSIONER: Mr Findley, what has that got to do with the price of fish?
PN1526
MR FINDLEY: So, what it is, I am trying to highlight those bad - the higher ordinary overtime rates, they're less occurring than what the VOT is because everybody or a lot of people want to work overtime.
PN1527
THE COMMISSIONER: Mr Findley, I have sworn evidence and I have documents that in writing that have been provided to me and I am pretty sure you got the first lot. That's the sworn evidence before the Commission.
PN1528
MR FINDLEY: Yes, Commissioner, and so is my roster that I created.
PN1529
THE COMMISSIONER: You haven't testified to it, have you?
PN1530
MR FINDLEY: I have put it in an affidavit, Commissioner.
PN1531
THE COMMISSIONER: It's in an affidavit.
PN1532
MR FINDLEY: So, the rosters, like I said, there is different calculations, Commissioner. My rosters do not produce the results that MSS's rosters produce. I think that's definitely in my affidavit, Commissioner. It's JF12.
PN1533
THE COMMISSIONER: Yes, hang on. I have got half of Gippsland here. Yes, keep going. Sorry.
PN1534
MR FINDLEY: I will keep going. So, highlighting overtime clauses which rarely apply over overtime clauses which an average employee does 129 hours and suffers a loss of hundreds of dollars as a result is a perfect example of this. So, what that was talking about is explaining, and I quote: "Highlighting some issues over others could be used in a manner to mislead. The fact that MSS put in the explanatory document the rise in overtime rates in ordinary rates, but omitted the drop in VOT, that is an example" - - -
PN1535
THE COMMISSIONER: Hang on. There has been no drop in VOT. It is the same as the last agreement.
PN1536
MR FINDLEY: As compared to the award. So, as compared to the award, MSS said, "You get 300 per cent on Sundays", which normally they would get 250 per cent.
PN1537
THE COMMISSIONER: Yes.
PN1538
MR FINDLEY: Maybe it's wrong. They get 50. So, what MSS have said: "You get 50 per cent more."
PN1539
THE COMMISSIONER: You are talking apples and pears. VOT does not apply to new employees and am I understanding that the conversation - I think, my understanding is, the conversation this morning about regularly rostered overtime being built into the roster was for new employees. Comparing apples and pears.
PN1540
MR FINDLEY: I understand, Commissioner. So, even if they are apples and pears, in the explanatory document they said the apple, which was the great ordinary overtime rates, but they didn't say the pear, which was the drop in VOT. So, they highlighted one thing over the other.
PN1541
THE COMMISSIONER: That goes back to your contention that it had to be explanation of the terms of the proposed agreement and the effect of those terms if includes compared to the award.
PN1542
MR FINDLEY: That is one argument, Commissioner.
PN1543
THE COMMISSIONER: Yes.
PN1544
MR FINDLEY: And the other argument is, forgetting about compared to the award, they said the benefits, but they didn't say the detriments. So, they said they told - - -
PN1545
THE COMMISSIONER: On the VOT, it was a current condition of employment.
PN1546
MR FINDLEY: Yes.
PN1547
THE COMMISSIONER: So, it's something known to everybody and there was no change.
PN1548
MR FINDLEY: Correct, and in the same respect, ordinary overtime was known to everybody. It hadn't changed. But MSS put that one in.
PN1549
THE COMMISSIONER: Yes, and that's because, rightly or wrongly, in the agreement the VOT rate is that you have got to work it out, whereas you don't have to for overtime. So, what I say is: so?
PN1550
MR FINDLEY: I don't understand why you say you don't have to work it out.
PN1551
THE COMMISSIONER: Because it tells me your complaint is that they are hiding the fact that the VOT is 19 per cent because they don't actually put 19 per cent in there. You have got to go to schedule B and get the calculator out and work it yourself.
PN1552
MR FINDLEY: Yes, Commissioner.
PN1553
THE COMMISSIONER: Whereas in 25.2, ordinary overtime has got the double time for the first two hours, et cetera, et cetera. Right? That's what you say.
PN1554
MR FINDLEY: Yes, Commissioner.
PN1555
THE COMMISSIONER: So?
PN1556
MR FINDLEY: I guess we are going to disagree on this point, but I would say that everything should be put in that document. Just because - - -
PN1557
THE COMMISSIONER: It doesn't have to be. There is a Full Bench which says take all reasonable steps and it is not explaining the whole of the agreement.
PN1558
MR FINDLEY: And I agree with that decision. Little things don't need to be. If they put every little thing in there, it is going to be actually bigger than the agreement itself if they explained all the terms. But the important things, which is VOT - - -
PN1559
THE COMMISSIONER: Yes, which hasn't changed. If it was changed and it wasn't something that employees had been having used to over the three years of the previous agreement, the current agreement, yes, sure, fair point.
PN1560
MR FINDLEY: Okay.
PN1561
THE COMMISSIONER: But it is something that they are familiar with.
PN1562
MR FINDLEY: Okay.
PN1563
THE COMMISSIONER: You have got to be practical about this. I agree with you in that sense.
PN1564
MR FINDLEY: Yes, thank you, Commissioner. So, that sums up my submissions, Commissioner.
PN1565
THE COMMISSIONER: Sorry.
PN1566
MR FINDLEY: Yes. No, I have never been this short.
PN1567
THE COMMISSIONER: No, no, no.
PN1568
MR FINDLEY: Yes, I guess, unless you want me to quickly go over everything, I think I have said what I need to say. The two important things are the explanatory material and the (indistinct) of explanatory material I say wasn't sufficient. And the ballot notice, there is no reasonable steps that it can't be held that they took reasonable steps to inform employees because I solemnly believe that I was the only person that knew about that ballot notice before.
PN1569
THE COMMISSIONER: Yes.
PN1570
MR FINDLEY: So, it is, I guess, summing up what Mr Levin was saying that I don't require you or I don't request that you rule that they have to do it in a definitive way. It is just reasonable steps. There are four failed methods. Nothing was reasonable. The four failed ones doesn't amount to one good one. That's all.
PN1571
THE COMMISSIONER: Thank you, Mr Findley.
PN1572
MR FINDLEY: Thanks, Commissioner.
PN1573
MR LEVIN: Look, other than objecting to any description of that as being short and certainly not 20 minutes, I have nothing more to add on that aspect. I do have a submission to make to you about a revised undertaking.
PN1574
THE COMMISSIONER: Did you want to - - -
PN1575
MR LEVIN: I wasn't sure if Mr Kenchington-Evans has anything to say in relation to the submissions.
PN1576
THE COMMISSIONER: Yes, hang on, please.
PN1577
MR LEVIN: I didn't want to override my friend.
PN1578
THE COMMISSIONER: No, no, no, you won't be. His turn in the queue is secured for him. Mr Levin, I just wanted to double check before we did move to Mr Kenchington-Evans, as to whether you want to say anything in response to Mr Findley's submissions on the explanations, the explanatory documents, and whether they need to be founded in the award.
PN1579
MR LEVIN: No, we have addressed these matters in our written submissions.
PN1580
THE COMMISSIONER: You have.
PN1581
MR LEVIN: we rely on them.
PN1582
THE COMMISSIONER: Cool.
PN1583
MR LEVIN: Thank you.
PN1584
THE COMMISSIONER: Thank you. Mr Kenchington-Evans.
PN1585
MR KENCHINGTON-EVANS: The union doesn't make any submissions, Commissioner.
PN1586
THE COMMISSIONER: Cool, thank you. Right, Mr Levin.
PN1587
MR LEVIN: I have shown Mr Kenchington-Evans an undertaking which I will read out and then - perhaps I might let you read it after I have read it out.
PN1588
THE COMMISSIONER: Okay.
PN1589
MR LEVIN: But I have only got one copy. It would say each - sorry, let me give you a heading - sorry, a summary, I should say, not a heading. I want to do this as an undertaking within the fortnightly period to overcome the issue of people having a period where there is a delay in getting what they should get. Each employee who in any fortnightly period (a) and (b). So, each employee who in any fortnightly period (a) would otherwise be entitled to a Level 1 first allowance and meets the criteria in paragraph 2 below, shall be paid the Level 2 first aid shift allowance for that fortnightly period. So, before I give you the criteria, just to explain.
PN1590
THE COMMISSIONER: Thank you.
PN1591
MR LEVIN: In the enterprise agreement, in the schedule, I think it's 15, there is a Level 1, Level 2, Level 3 shift allowance. The $3.26 that we have spoken of is the Level 1 shift allowance. It's not a shift allowance for a Level 1 employee. It's the lowest level of shift allowance.
PN1592
THE COMMISSIONER: Yes, yes, yes.
PN1593
MR LEVIN: There is a dollar higher shift allowance.
PN1594
THE COMMISSIONER: Yes.
PN1595
MR LEVIN: Obviously, for each shift, that extra dollar will get us at least $4 for a week, but over the $3.80 shortfall. It is the very back page.
PN1596
THE COMMISSIONER: I was trying to find it.
PN1597
MR LEVIN: Yes.
PN1598
THE COMMISSIONER: The back page of the proposed agreement?
PN1599
MR LEVIN: Yes. I am so sorry, of the - I am so sorry, attachment ML1, the F17 - - -
PN1600
THE COMMISSIONER: Yes.
PN1601
MR LEVIN: - - - I beg your pardon - identifies on the last page the analysis of the allowances by reference to the award. Let me just hand that up if it might be quicker.
PN1602
THE COMMISSIONER: Sorry.
PN1603
MR LEVIN: With all the paperwork. Thank you.
PN1604
THE COMMISSIONER: Thank you.
PN1605
MR LEVIN: It just more neatly sets out what's in the agreement and compares it to the award. And so you will see that it shows you that we have been talking about the award shift allowance of $5.38 and $3.26 presenting us a problem of $1.52 when you take account of the 60 cents laundry allowance and the amount for the lowest employee with their half a per cent above award and we came to $3.84 as being a gap.
PN1606
THE COMMISSIONER: Yes.
PN1607
MR LEVIN: So, to address that gap, if people received the $4.26 first aid shift allowance, a Level 2 shift allowance, then whether they are working an eight-shift per fortnight or a ten-shift per fortnight, even if it's an eight-shift per fortnight, the gap now is obviously a dollar less. So, you basically say $4.26 plus 60 cents is $4.86. Then 11 cents per hour is the lowest difference and if you multiply that by 38, you will get to above $5.38. So, if people were all getting $4.26 hypothetically for their first aid shift allowance, we wouldn't have had this whole debate. It's the $3.26, the extra dollar below that is not offset per shift. So, by moving those people up to $4.26 per shift for the people who I will identify, the people at risk, basically there is only two criteria, you need to increase those people from Level 1 to Level 2.
PN1608
THE COMMISSIONER: In terms of the first aid allowance?
PN1609
MR LEVIN: Yes. It's just a convenient method to get them up.
PN1610
THE COMMISSIONER: Yes, yes.
PN1611
MR LEVIN: The criteria are that there are new - (a) and (b). (a) They're a new employee and, second, that they didn't in that fortnight work at least an hour of rostered or un-rostered Saturday or Sunday overtime or public holiday hours. That's because in the table that you were given, the minimum gap is Saturday overtime and the above award difference is $10.79. If they are getting an hour, they don't need this extra allowance because the $10.79 above award for one hour obviously offsets the $3.84 gap. So, we are talking about, as we said before, new employees, no rostered overtime and no - sorry, no rostered overtime and not on Saturday or Sunday. So, it's that group.
PN1612
A new employee who did, for example, work one hour of public holidays which is triple time or a Saturday or Sunday overtime in that fortnight will always be above the deficiency, if I can call it, that has been identified. So, by saying that for all of those people who in that fortnight didn't have any overtime, they get the higher first aid allowance. Now, I have done that so, yes it will include - more people will get this Level 2 allowance, but I am told that it is easier to have a few more people and just simply pay a higher first aid allowance if people find themselves in that situation in any fortnightly period. I will perhaps hand this up.
PN1613
THE COMMISSIONER: Were you a doctor in a previous life?
PN1614
MR LEVIN: Maybe pharmacist, I don't know. The worst thing I was making an effort there.
PN1615
THE COMMISSIONER: Oh, dear.
PN1616
MR LEVIN: Would it assist you for me to further go through the maths on that or is it sufficiently close in time to when we discussed it last time?
PN1617
THE COMMISSIONER: That is very delicately put, Mr Levin, and very kindly, thank you. No, I have got it.
PN1618
MR LEVIN: Thank you, Commissioner.
PN1619
THE COMMISSIONER: Mr Kenchington-Evans, in a moment my associate will bring back a copy of the undertaking No.3 that is proposed. The union hasn't yet commented on either of the previous two, nor the third. I suspect it is required under the Act but the Commission, as presently constituted, always consults with the other parties. So, do you have a view about the undertakings that are proposed in terms of addressing concerns regarding the BOOT?
PN1620
MR KENCHINGTON-EVANS: Commissioner, we are in the Commission's hands regarding the most recent conversation about meeting the BOOT on the maths.
PN1621
THE COMMISSIONER: Yes.
PN1622
MR KENCHINGTON-EVANS: We don't really have submissions to make. Regarding the two made this morning, I was previously aware of those and the union can support those undertakings.
PN1623
THE COMMISSIONER: All right, cool, thank you.
PN1624
MR LEVIN: I did omit and I do apologise, we do still submit that the agreement as put to you ought to be seen as meeting the BOOT, but we would rather err on the side of caution by offering this third undertaking, thank you.
PN1625
THE COMMISSIONER: Mr Levin, thank you for articulating that so clearly. That was the basis on which the Commission had understood that the proposed undertakings had been provided.
PN1626
MR LEVIN: Thank you.
PN1627
THE COMMISSIONER: Does anybody wish to say anything further? No? Mr Findley, anything further?
PN1628
MR FINDLEY: No, Commissioner, I think I have said everything.
PN1629
THE COMMISSIONER: Thank you.
PN1630
As I indicated during a moment that I interrupted Mr Findley, the Commission wishes to now issue a decision in transcript in relation to the application before it. The reason that - and a decision in transcript is grammatically inelegant most of the time and is not comprehensive, but it deals with the essence of the issues that are before the Commission in terms of its statutory function. So, it won't be elaborate and you will see how the grammar falls.
PN1631
But the reason that I believe that I am in a position to do is that this matter has been a long time getting to this point since it was first filed by MSS Security in the Commission and the issues have been well-ventilated along the way. There is a lot of written material before the Commission and so the Commission does not feel it is not doing justice to the parties or to the evidence and the material by issuing a decision in transcript.
PN1632
As I said earlier, this matter is an application by MSS Security Pty Ltd under section 185 of the Fair Work Act for approval of the proposed MSS Security Victorian Enterprise Agreement 2016. As I indicated earlier, the application was filed on 15 July 2016.
PN1633
As everybody is aware, section 180 sets out the pre-approval requirements. Let me start again. The material before the Commission deals with two bundles of issues in relation to the application. Firstly, the pre-approval process which is section 180, and then there is the requirements of the BOOT, better off overall test. I will deal with them one at a time, so I will deal with the pre-approval process first. The particular area that has been the focus of the pre-approval process, well, there are two areas. The first one is section 180(3) which requires that the employer must take all reasonable steps to notify the relevant employees of the time and place of the vote and the voting method by the start of the access period. Then the second area where a lot of the material has gone to are the requirements of section 180(5). So, I would like to deal with the pre-approval process looking at both those areas.
PN1634
The evidence before the Commission is that the start of the access period was on Saturday, 25 June. So, it was a Saturday. On the Friday, a number of things were done by the employer. The first thing the employer did was on the Friday posted out to employees the ballot notice and all of the material. So, if I may loosely call that the ballot material, but all of the stuff that was required under the Act was posted by snail mail by the employer on the Friday.
PN1635
The second thing was that as well there was an email sent out requesting all of the site managers to print, distribute, display, all of that material for all of the employees on those sites. And as well, on the Friday, all of the required material was posted on the company's employee portal which is what I call the MSS Security's intranet.
PN1636
In the written submission, it was accepted by MSS Security that care of the snail mail method which was the first method of providing this material to employees that that would not have got to the employees by the Saturday which was the start of the access period. And, as well, in its written material, MSS also accepted that not all of the employees at all of the sites had the material was posted up or distributed or however it is disseminated within a site, that was not done at all sites. MSS has maintained that in terms of the employee portal that that was available for employees, all the relevant employees on the Friday, so at the start of the access period.
PN1637
The test does not require - and this is one set out in the McDonald's Full Bench - does not require an applicant, in this case MSS Security, to establish in a definitive way that all employees were informed. Rather, the requirement was that the Commission must be satisfied that the employer took reasonable steps to ensure that the information was provided to employees.
PN1638
In this matter, I have formed the view that MSS did not take all reasonable steps to notify the employees. The material that was posted to employees went by standard mail and so, therefore, by that method, none of the employees would have received all of that material the next day which was at the start of the access period. Also, the evidence before me is that not all of the managers distributed all of the material to all of the employees following the request that was emailed to them to do so on the Friday. So, I am not satisfied that all of the employees received that material by the second method by the start of the access period.
PN1639
I understand and acknowledge the evidence from the company about the employee portal and its role for employees. The difficulty that the Commission has is that there is no evidence before me that there was any alert sent to employees that material had been placed on the employee portal and they needed to have a look at it. If that had been the case, I doubt that I would be saying that I am saying and this is against a backdrop of evidence that during the voting period there were four text messages sent out to employees.
PN1640
I know that Mr Luddington said hindsight is a great thing. That is a lot of my job and so I am not being critical. I am applying the test required of the Commission under the Act. But on that basis, the Commission is not satisfied that MSS took all reasonable steps to notify the employees as required and it is required under section 180(3) of the Act.
PN1641
Technically, the Commission could stop at that point because that is a fundamental requirement in the approval process and so, therefore, on that basis alone, the Commission therefore formally is in a position to say that the application for approval of the agreement is dismissed as the Commission has not been satisfied in relation to the requirements of section 180(3).
PN1642
What I am going to say from here on in is to assist the parties, is not technically required and so therefore it is probably going to be slightly less elegant than what has gone before it.
PN1643
MR LEVIN: Which was beautifully elegant.
PN1644
THE COMMISSIONER: The other area that a lot of the material went to was the explanation of the requirement to explain the terms of the agreement and the effects of those terms as set out in section 180(b). The evidence before the Commission is that there were, and this is from a Commission perspective, the material before the Commission that was provided by the employer as part of the re-approval process were two documents. What has changed and an explanation of the terms of the proposed agreement and the effect of those terms.
PN1645
The "What has changed?" document sets out what it says the changes are and then the other document goes into an explanation of the - goes through all of the agreement and provides an explanation of the terms and then what the effect of those terms are. To me, when I read the words of section 180(b), what it is asking that the employer do is to take all reasonable steps to ensure that the terms of the agreement and the effect of those terms is explained to employees. In doing that, the Act, I do not think, specifies whether it should be an explanation of the terms in terms compared to the award. That is certainly absolutely one of the criteria for approving an agreement is the Commission has to compare the proposed agreement with the award.
PN1646
Funnily enough, there is a Full Bench decision, the name of which escapes me at the moment which says that from the Commission's perspective, if a proposed agreement passes the BOOT, but is actually worse than the previous agreement or it has lesser terms than the previous agreement, as long as it passes the award, that is the end of the discussion. And that is the case. But that is the Commission's test. That is what we have to do under the legislation. That is not what it says that an employer has to do and, particularly, I would have thought in circumstances where there is a pre-existing agreement because to me a common sense way what I would want to know as an employee who is being asked to vote on a proposed agreement is how different is this to what I currently get now in terms of my wages and my conditions. So, what are the changes? What is the effect of the changes in the agreement?
PN1647
Therefore, I am satisfied that the documentation that the employer provided, although not in a timely way, does meet the requirements of section 180(b) of the Act.
PN1648
The last bundle, the second bundle of issues, is the BOOT. As I said earlier, I do not actually have to make any comments about this, but given that I am assuming that the parties will need to look to the future, that is why I am being more comprehensive than is necessary. A lot of today's evidence and material has been about whether the agreement meets the BOOT and I have been pretty clear, I think, about my view and my view is that when I balance all of the - let's do existing employees first - when I balance the agreement rate versus the award rate and I take into account the higher penalty rates for overtime, on the other hand, if somebody works voluntary overtime, it is a lower rate and then there are other various bits and pieces including a first aid allowance that is below the award rate, significantly below. But it is not a line by line comparison and when you weigh all of that up for existing employees, I am satisfied that they are better off overall under the agreement. I have done that exercise specifically and I am satisfied.
PN1649
In terms of the new employees which is what we spent a lot of time dealing with today, that was where I had concerns and the concerns were in relation to the employees who did not work night shift and employees who didn't have regular rostered overtime as part of their rostered hours. So, it is non-discretionary compulsory overtime, if I can put it that way.
PN1650
The bottom line of all of that is we have gone through a mathematical exercise which is all on transcript and so is open and transparent. It seemed to me I was satisfied that where employees are rostered a combination of day shift and night shift, so we are talking about the 12-hour shift employees who were doing two weeks of day shift, 12-hour shift, and then two weeks of night shift, their roster cycle was four weeks, so it was two of each. They rotated through the days of the week and because they worked 12-hour shifts, there is absolutely rostered overtime built in there. Because they have night shift penalties, when you put all of that together, you end up with a situation where over the four-week cycle they are better off overall.
PN1651
The concern that the Commission had was where people are not in that situation and my understanding from Mr Luddington was that there may well be a small pocket of employees who are not required by the company to work overtime as part of their ordinary hours, so it does not make up part of their rostered ordinary roster ordinary hours, and who do not work night shift and that is where the calculation came in and we ended up with the 3.84 shortfall.
PN1652
The company has provided an undertaking which I have just moved somewhere and the essence of the undertaking is - and this is within the context that the company is firmly of the view that the BOOT is met and that is acknowledged. But the undertaking seeks to provide comfort for the Commission in a practical absolute dollars and sense way of addressing the concerns that the Commission has and the Commission is satisfied on the basis of the proposed undertaking that that satisfies the Commission's concern about the BOOT in relation to those particular employees.
PN1653
This is sort of forward focussed as well. The Commission had raised issues in relation to the stand-down provision which was clause 7.4 and also clause 15.1.12 or 13 and the company has proposed undertakings to address both of the Commission's concerns in that regard. From a Commission perspective, on the basis of all of the material before me, just looking - if there were no issues in terms of the pre-approval process, simply on the BOOT, the Commission would be satisfied with those undertakings that the agreement passes the better overall test.
PN1654
Coming back to the beginning, technically all of that is by the bye, but in terms of the agreement that is before the Commission, as the Commission is not satisfied in relation to the requirements of section 180(3) that the employer took all reasonable steps to notify the relevant employees of the time and place of the vote and the voting method by the start of the access period, the Commission declines to approve the agreement and, therefore, closes the file. The Commission stands adjourned.
ADJOURNED INDEFINITELY [3.15 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A2 OUTLINE OF SUBMISSIONS OF MSS SECURITY DATED 17/02/2017 PN578
MATTHEW LUDDINGTON, AFFIRMED...................................................... PN586
EXAMINATION-IN-CHIEF BY MR LEVIN................................................... PN586
EXHIBIT #A3 WITNESS STATEMENT OF MATTHEW LUDDINGTON DATED 17/02/2017................................................................................................................................. PN595
EXHIBIT #A4 FURTHER STATEMENT OF MATTHEW LUDDINGTON DATED 14/03/2017................................................................................................................................. PN608
CROSS-EXAMINATION BY MR FINDLAY.................................................. PN611
RE-EXAMINATION BY MR LEVIN.............................................................. PN1188
THE WITNESS WITHDREW.......................................................................... PN1210
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