C2017/6598, Transcript of Proceedings [2018] FWCTrans 126 (19 April 2018)

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PN1

THE COMMISSIONER: Good morning. Mr Rivera, you are representing yourself?

PN2

MR O RIVERA: Yes.

PN3

THE COMMISSIONER: You need to stand up when you answer, thank you.

PN4

MR RIVERA: Sorry.

PN5

THE COMMISSIONER: Ms Baker, you are representing the company?

PN6

MS S BAKER: Correct, and with me is Mr Duncan Campbell.

PN7

THE COMMISSIONER: Yes, okay. Mr Campbell's not giving evidence, is he, it's just Mr Watters?

PN8

MS BAKER: Correct, Mr Watters and Mr Lawson and they are outside at the moment, Commissioner.

PN9

THE COMMISSIONER: Yes, all right, thanks very much. Just a couple of procedural points. This is your jurisdictional objection and I will just go through and give an explanation, particularly for Mr Rivera, who is clearly less versed than undoubtedly you, Ms Baker, in terms of how this place operates.

PN10

The jurisdictional objection is made by the employer and so they will lead off, if you like, and bring their evidence as to why I should find that there is no jurisdiction to deal with the matter, and then we will go to you and any evidence that you want to bring.

PN11

Before we get to that point, Mr Rivera, you will see that Ms Baker has filed witness statements from Mr Watters and Mr Lawson and that is evidence that they will presumably bring into the court. You are going to have a chance to ask them any questions you want to ask them about that and I might ask them some questions about that.

PN12

In turn, you have not put in a witness statement in this matter - that's okay - you have put in submissions which do, to a certain extent, have factual material in them from your point of view that you say happened, but it's a matter for you as to whether you want to give any evidence in the case. Does that make sense? I will ask you about that when it comes to your turn, but understand this, and I need to explain this to you, sworn evidence in a matter will always prevail over no evidence or evidence that is not sworn evidence. Does that make sense? I will obviously place higher regard on evidence that is given under oath because, yes, it is given higher regard, for obvious reasons. Does that make sense, Mr Rivera?

PN13

MR RIVERA: Yes, that does, yes.

PN14

THE COMMISSIONER: So you can, if you wish, when it's your opportunity, and I will ask you about it at the relevant time, if you want to personally give evidence, take an oath and so on, but you don't have to. Is that a satisfactory explanation? Do you understand the difference?

PN15

MR RIVERA: Yes, I see because it's legal, a legal issue, yes, I understand.

PN16

THE COMMISSIONER: Okay, yes, all right.

PN17

MR RIVERA: Yes, it does.

PN18

THE COMMISSIONER: Thanks, Mr Rivera. Ms Baker?

PN19

MS BAKER: Commissioner, I call Tim Watters, Timothy Watters.

PN20

THE COMMISSIONER: Thank you.

PN21

THE ASSOCIATE: Please state your full name and address.

PN22

MR WATTERS: Timothy Francis Watters, (address supplied).

<TIMOTHY FRANCIS WATTERS, AFFIRMED [9.42 AM]

EXAMINATION-IN-CHIEF BY MS BAKER [9.42 AM]

PN23

THE COMMISSIONER: Thanks, Mr Watters. Ms Baker?

PN24

MS BAKER: Thank you. Mr Watters, you have before you a witness statement that you've prepared; is that correct?‑‑‑Yes, it is.

*** TIMOTHY FRANCIS WATTERS XN MS BAKER

PN25

It has 16 paragraphs and there is a single letter attachment. Is your evidence that this is true and correct to the best of your knowledge?‑‑‑Yes, it is.

PN26

I seek to tender that witness statement, Commissioner.

PN27

THE COMMISSIONER: Thanks. You don't have any objections to that being included in the evidence, Mr Rivera?

PN28

MR RIVERA: Sorry?

PN29

THE COMMISSIONER: There's nothing in that statement you object to?

PN30

MR RIVERA: No.

PN31

THE COMMISSIONER: No, all right, thanks. The statement will be marked exhibit R1. That's the statement of Mr Watters and the one-page attachment.

EXHIBIT #R1 STATEMENT OF TIMOTHY FRANCIS WATTERS WITH A ONE-PAGE ATTACHMENT

PN32

MS BAKER: Thank you. Mr Watters, I just want to confirm that you were handed the letter, attachment A, dated 23 November, authored by Mr Rivera, on that same day; is that correct?‑‑‑Yes, it is.

PN33

At that time that that letter was handed to you, did Mr Rivera seek to talk to you about the dispute?‑‑‑No, he didn't.

PN34

You subsequently went to the lunch room to advise him of a meeting, a TWU meeting, that was to be held that Mr Lawson had organised that Mr Rivera attend to deal with the dispute. When you passed that information on to Mr Rivera, did he seek to discuss the dispute with you further?‑‑‑No, he gave no reply.

PN35

So he acknowledged that he understood about the meeting?‑‑‑It could be taken that way. He didn't enter into any discussion.

PN36

Nothing further, Commissioner.

*** TIMOTHY FRANCIS WATTERS XN MS BAKER

PN37

THE COMMISSIONER: All right.

PN38

MR RIVERA: Can I?

PN39

THE COMMISSIONER: Yes, if you want to ask him any questions, yes, of course.

CROSS-EXAMINATION BY MR RIVERA [9.44 AM]

PN40

MR RIVERA: Mr Timothy, you approached me that day and you told me about the meeting. I have response to you that I lodged my letter and I told you that it was Thursday and you have two days, you have Friday and Saturday to comply with my letter and you haven't come back to me about a meeting. I told to you why you ask me to go to the meeting on the next week, on the 29th, if we - I did handed you letter with - it was on the 23rd - and it has to be, my meeting has to be within two days and you were - Thursday is still one day, two days, even Saturday I told you.

PN41

THE COMMISSIONER: Mr Rivera, I will just try and distil that and you have got to ultimately ask him a question. Okay, you're putting to him that you demanded a meeting in two days and that was a discussion that you had?

PN42

MR RIVERA: Not demanding, I just tell him that - - -

PN43

THE COMMISSIONER: Sorry, I withdraw the word "demanding", that you were asking for a meeting in two days and that you had a discussion with Mr Watters about that.

PN44

MR RIVERA: Yes, I told him that, "We have a meeting maybe tomorrow" or, I said, "Friday or Saturday. Why do you ask me to on Wednesday if you had a meeting on Thursday?"

PN45

THE COMMISSIONER: All right, and you say that you said those things to him?

PN46

MR RIVERA: Yes, and he say - he say nothing.

PN47

THE COMMISSIONER: All right, we will give Mr - - -

PN48

MR RIVERA: He reply to me - - -

*** TIMOTHY FRANCIS WATTERS XXN MR RIVERA

PN49

THE COMMISSIONER: Stop. It's all right, but you have got to put propositions to him and he can say, "Yes, I agree with that" or "I don't". All right?

PN50

You have got the tenor of that question, Mr Watters?‑‑‑Yes.

PN51

Yes? And what's your answer?‑‑‑The reply to it was our next available meeting time was on the Wednesday, the following Wednesday.

PN52

But did you have a discussion with Mr Rivera along the lines of what he alludes to?‑‑‑I basically set out the next available time was Wednesday, we couldn't do it before Wednesday.

PN53

Okay?‑‑‑There was no further discussion.

PN54

There was no other discussion?‑‑‑No.

PN55

Anything else?

PN56

MR RIVERA: No, that's all.

PN57

THE COMMISSIONER: All right, thanks. Yes, I don't have anything else for you, Mr Watters, so thanks for your evidence. Nothing arising out of that?

PN58

MS BAKER: No, Commissioner, nothing further.

PN59

THE COMMISSIONER: Thanks, Mr Watters, you can step down?‑‑‑Thank you, Commissioner.

<THE WITNESS WITHDREW [9.47 AM]

PN60

THE COMMISSIONER: And we have got Mr Lawson?

PN61

MS BAKER: Thank you, Commissioner, I call Mr Lawson.

PN62

THE ASSOCIATE: Can you please state your full name and address.

*** TIMOTHY FRANCIS WATTERS XXN MR RIVERA

PN63

MR LAWSON: Shaun Jason Lawson, (address supplied).

<SHAUN JASON LAWSON, SWORN [9.48 AM]

EXAMINATION-IN-CHIEF BY MS BAKER [9.48 AM]

PN64

THE COMMISSIONER: Thanks, Mr Lawson. Ms Baker?

PN65

MS BAKER: Thank you, Mr Lawson. You have prepared a witness statement, which I understand you have there in front of you. It has 17 paragraphs and there are two attachments, A and B. Do you testify that this is true and correct to the best of your knowledge?‑‑‑I do.

PN66

Thank you. Commissioner, I seek to tender that into evidence.

PN67

THE COMMISSIONER: Any objections to that statement?

PN68

MR RIVERA: Well - - -

PN69

THE COMMISSIONER: You can ask him questions about it, but not yet. I am just asking you if there's anything in there you object to?

PN70

MR RIVERA: No, no, yes, sir, no, sir, no.

PN71

THE COMMISSIONER: All right, thanks, Mr Rivera. The statement of Mr Lawson is R2, with attachments.

EXHIBIT #R2 STATEMENT OF SHAUN JASON LAWSON WITH TWO ATTACHMENTS

PN72

MS BAKER: Thank you. Mr Lawson, I just want to take you to attachment A of your letter that Mr Rivera provided to you and, just in accordance with your witness statement, just to confirm that you received the letter. Did Mr Rivera make any attempt to discuss the contents of that letter with you?‑‑‑No, he did not.

PN73

To this date has he?‑‑‑No, he hasn't.

*** SHAUN JASON LAWSON XN MS BAKER

PN74

Thank you very much. Mr Lawson, you have had the opportunity to see Mr Rivera's submissions. They were provided to your office. Is there any comment you would like to make about the submissions?‑‑‑Yes, I was quite taken aback, certainly around the language used in the last two paragraphs. I found it was a little bit of a personal attack. We've got quite strong processes around roster consultation which has been in place now for many, many years. All those processes are adhered to, so I was quite taken aback by the language expressed in those last two paragraphs.

PN75

Thank you, Mr Lawson. Nothing further, Commissioner.

PN76

THE COMMISSIONER: I take it there you are referring to references to you, Mr Lawson, as the "despot dictator and liar, no respect for the law", et cetera?‑‑‑That's correct.

PN77

Yes, all right, thanks. Thanks, Ms Baker. Yes, any questions you want to ask Mr Lawson, Mr Rivera?

PN78

MR RIVERA: I just want to say that in this society, I - I been taught to be truthful, honest and never lie, so I stand for my statement.

PN79

THE COMMISSIONER: Mr Rivera, just sit down.

PN80

MR RIVERA: I stand for my statement. I - - -

PN81

THE COMMISSIONER: What I want you to try and do - have you read the statement that Mr Lawson has made?

PN82

MR RIVERA: Yes.

PN83

THE COMMISSIONER: There may be things in there which you disagree with - okay? Perhaps I will put it by way of a simple example that has nothing to do with this matter.

PN84

MR RIVERA: Okay.

*** SHAUN JASON LAWSON XN MS BAKER

PN85

THE COMMISSIONER: Perhaps someone had given evidence that on Tuesday it was raining and you dispute that and you say that on Tuesday it was a sunny day. Well, you are entitled to ask the witness, "I see that you've given evidence that it was raining on Tuesday" and you can say to them, "I put it to you that the Weather Bureau records show that it was actually sunny on Tuesday; what do you say about that?" and ask them and then they will answer that question. Do you understand what I'm saying?

PN86

MR RIVERA: No, no, sir, no.

PN87

THE COMMISSIONER: All right. The witness statement that he has put in is his evidence, Mr Lawson's, so what he's put in here, he has sworn to, that's what he says is the truth. You are entitled to ask him questions about that evidence, or about any other matter really, as long as it's relevant to the case, but you can say - perhaps if I take something obscure - he says he has an Advanced Diploma in Leadership and Business Management and that he's worked in the bus industry for nine years. You might have a view, well, no, he's only worked in the bus industry for three years and you might put to him, "I understand that you've only worked in the bus industry for three years; what do you say about that?" Does that make sense?

PN88

MR RIVERA: Yes.

PN89

THE COMMISSIONER: You can make submissions about what you say I should find about all the evidence when we've got all the evidence in, but we do that at the end, so all we're doing at the moment is getting the evidence. Does that make sense?

PN90

MR RIVERA: Yes.

PN91

THE COMMISSIONER: That's the best way I can explain it. So you can take your time, if you need to have a think, but really are there any questions that you want to ask Mr Lawson about his evidence?

PN92

MR RIVERA: No, I'll wait, I prefer to wait and see.

PN93

THE COMMISSIONER: Are you sure there's nothing you need to - I mean, you can ask him about the material that's in your submission, if you like, or anything like that.

PN94

MR RIVERA: Maybe at the end.

PN95

THE COMMISSIONER: I beg your pardon?

*** SHAUN JASON LAWSON XN MS BAKER

PN96

MR RIVERA: Can I say it - can I do it at the end of the court?

PN97

THE COMMISSIONER: Yes, if you like, yes.

PN98

MR RIVERA: Yes.

PN99

THE COMMISSIONER: All right, okay. Thanks for your evidence, I don't have anything else, nothing that arises in reply. You are excused, Mr Lawson?‑‑‑Thank you.

<THE WITNESS WITHDREW [9.54 AM]

PN100

THE COMMISSIONER: That's all of your evidence, Ms Baker?

PN101

MS BAKER: Yes, it is, Commissioner.

PN102

THE COMMISSIONER: Thanks. Mr Rivera, you have filed an outline of submissions. I gave that explanation to you earlier. While they are submissions, I doubt that - Ms Baker can object to this and I will hear her if she does - but you could, if you wish, say, "Well, while they're called my outline of submissions, this is really my evidence" and swear to that, or not do that at all, or take an oath and provide any other evidence - and/or take an oath and provide any other evidence that you want to provide today. That's the extent to which I can explain the procedures to you.

PN103

MR RIVERA: Could you explain it again, please?

PN104

THE COMMISSIONER: Beg your pardon?

PN105

MR RIVERA: Could you - sir, could you explain me again, yes, sir?

*** SHAUN JASON LAWSON XN MS BAKER

PN106

THE COMMISSIONER: You have put in an outline of submissions - yes - got 15 paragraphs. While it's called an outline of submissions, really most of it is about things that you say - well, I think this is what it says - things that you say happened on 18 November about the depot union delegate and organiser being contacted, on 20 November, the ombudsman being contacted and so on, so, to a fair extent, most of what's in here is - and then, you know, your various allegations about what people were doing. So, to a fair extent, it's your evidence about what has occurred. One way to approach that would be, if you like, to say that you swear to this evidence, in which case I'll measure that up against the - but you don't have to do that. That's all I can - - -

PN107

MR RIVERA: I will swear in relation to the statement.

PN108

THE COMMISSIONER: Yes? All right. We will just deal with Mr Rivera from the Bar table, I think, and we will swear him in from down there, Victoria.

PN109

THE ASSOCIATE: Can you please state your full name and address.

PN110

MR RIVERA: Oscar Nelson Rivera, (address supplied).

<OSCAR NELSON RIVERA, AFFIRMED [9.57 AM]

EXAMINATION-IN-CHIEF BY THE COMMISSIONER [9.57 AM]

PN111

THE COMMISSIONER: All right now, Mr Rivera - you can stay seated for this part - you have put in an outline of submissions that has 15 paragraphs and attached to it are various attachments, including TWU - they are not actually numbered, are they? No, they have got various letters. There's a letter, the 23 November letter, which is also attached to someone else's statement, a petition of sorts of two pages and some TWU pamphlets. That's right?‑‑‑That's correct.

PN112

In terms of that outline of submissions of 15 paragraphs, there's some factual matters in there. To the extent that that document contains factual matters, do you say that those factual matters are true and correct?‑‑‑Correct.

PN113

Any objection to this course of events, Ms Baker?

PN114

MS BAKER: No, Commissioner.

PN115

THE COMMISSIONER: And tendering this into evidence, so your outline of submissions and its attachments, I will mark as A1, Mr Rivera, so I will take that as your sworn evidence.

EXHIBIT #A1 OUTLINE OF SUBMISSIONS OF OSCAR NELSON RIVERA TOGETHER WITH ATTACHMENTS

*** OSCAR NELSON RIVERA XN THE COMMISSIONER

PN116

THE COMMISSIONER: Is there anything else that you wanted to say in terms of providing evidence?‑‑‑The only thing I like to add there, the roster is still the same and - - -

PN117

I am just going to stop you, Mr Rivera. I will just be clear: today I am only dealing with whether or not you have jurisdiction and the entire point revolves around whether or not the steps in the dispute settlement procedure have been complied with. Do you understand that?‑‑‑I misunderstand, I apologise.

PN118

I am not interested in what is happening with the roster per se?‑‑‑Yes.

PN119

I am only interested in whether or not you have a legal basis to be here. Do you understand that?‑‑‑I do.

PN120

So the evidence is about what happened or didn't happen in respect to taking steps under the dispute settlement procedure. That's the relevant evidence for the purposes of today. Whether the roster is good or bad or whether they have breached the provisions, that's a matter for another day if you meet the jurisdictional hurdle. Do you understand?‑‑‑I do.

PN121

Okay?‑‑‑I do.

PN122

In that vein, what else would you like to say?‑‑‑Nothing. I can't think anything.

PN123

Yes?‑‑‑I mean, yes, the only thing I can say is this, that I follow the procedures, I do what I have to do according to the law to raise the proper disagreement and I try to avoid that breach it happen - before it happen, but I wasn't listened, so they knew it was going to happen because I sent that letter, but they continued to do it, and this is - this is the main thing, it was a breach and they refused to negotiate it, and that's the truth. That's the only thing I could say. I did my best. They knew in advance what's going to happen if they - if they implement the rosters in, it's going to be a breach, they knew that, but they didn't care and they - they do it anyway, they didn't care about us. I'm talking about "us" because at the time it was their system of the union, you know. I was representing most of the drivers at the time. That's what I can say.

PN124

All right?‑‑‑Thank you.

PN125

Thanks. Ms Baker, do you want to ask any questions of Mr Rivera?

*** OSCAR NELSON RIVERA XN THE COMMISSIONER

PN126

MS BAKER: Thank you, I will ask a few questions.

CROSS-EXAMINATION BY MS BAKER [10.01 AM]

PN127

MS BAKER: Mr Rivera, I'll just check that you can hear me?‑‑‑Yes.

PN128

Okay. Mr Rivera, you were an assistant TWU delegate, so you're familiar with the Bus Drivers Enterprise Agreement?‑‑‑Yes.

PN129

Do you have a copy there with you?‑‑‑The enterprise agreement?

PN130

Yes?‑‑‑Yes, I do.

PN131

I might just hand up - I'm not too sure if the Commissioner has a copy.

PN132

THE COMMISSIONER: Yes.

PN133

MS BAKER: You have a copy there?

PN134

THE COMMISSIONER: Yes.

PN135

MS BAKER: Mr Rivera, I wonder if you would just mind turning to clause 15?‑‑‑Yes, I do.

PN136

That's the clause that says:

PN137

In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.

PN138

Do you see that clause, Mr Rivera?‑‑‑15.3?

PN139

15.3, correct?‑‑‑Yes.

PN140

You have got that clause?‑‑‑Yes.

*** OSCAR NELSON RIVERA XXN MS BAKER

PN141

Okay. Mr Rivera, after you delivered the letter of 23 November, which you gave to Mr Watters, did you try to do that?

PN142

THE COMMISSIONER: Sorry, didn't he give it to Mr Lawson?

PN143

MS BAKER: No, it was given to Mr Watters.

PN144

THE COMMISSIONER: Sorry. Sorry, ask the question again.

PN145

MS BAKER: After you delivered the letter to Mr Watters on 23 November, did you try to resolve the dispute at the workplace level?‑‑‑I think this is - I didn't do that because - - -

PN146

You didn't do that?‑‑‑Because we were to have a meeting.

PN147

Sorry, so you did do that?‑‑‑But then I was to - to talk with whatever the man is going to be there, you know, or him, because what's the point of contact him before the - before the meeting?

PN148

All right, so ---?‑‑‑I didn't because I - I was waiting for the meeting, that's why I didn't.

PN149

The meeting - you were advised the meeting was going to occur on 29 November - is that correct - Mr Watters advised you that there would be a meeting on 29 November?‑‑‑No, he didn't, Mr Timothy did, not Mr Watters - I mean Mr Timothy - Watters - yes.

PN150

I think the evidence is that he went to the lunch room?‑‑‑Yes, he did.

PN151

And advised you that there would be a meeting, which was part of a TWU meeting?‑‑‑Exactly, exactly.

PN152

On 29 November?‑‑‑Exactly, yes.

PN153

Did you attend that meeting?‑‑‑We have a meeting before that.

*** OSCAR NELSON RIVERA XXN MS BAKER

PN154

Mr Rivera, did you attend the meeting on 29 November?‑‑‑Because no point because breach is done, that's why I didn't.

PN155

THE COMMISSIONER: Just answer the questions, Mr Rivera?‑‑‑No.

PN156

MS BAKER: You didn't attend the meeting on 29 November. Can you show me in the clause, so in clause 15, where in that clause the employer, or where it is imposed that there is a timeline for how many days the employer has to organise a meeting or to respond to a meeting?‑‑‑Nothing here.

PN157

There's nothing there?‑‑‑Yes.

PN158

So when you put in your letter - in fact, I think it says "today", meaning the same day, but you actually meant two days, a multiple of two - is that right - in your letter?‑‑‑My understand, they said that they - they find that they have - they had two days for the meeting with the - - -

PN159

All right, correct, but my question to you then, Mr Rivera, is in this clause there's nowhere that says there is a specific time or number of days when the meeting has to occur, so why did you think that you could put that in your letter?‑‑‑What happened is a breach is a breach and once you broke the law, you broke the law.

PN160

No, I'm sorry, Mr Rivera, my question to you is, within clause 15 - - -?‑‑‑No, I understand what you said.

PN161

All right. So then why did you put in the letter that there had to be a meeting happen within two days?‑‑‑Because the roster's going to be implementing and we're going to be - they going broke the law and we didn't want to happen that because we knew that the roster wasn't good for us, it was that's why, and because Mr Lawson don't care about the law or the employees.

PN162

Mr Rivera, I am going to - - -?‑‑‑And I'll tell you one thing - - -

PN163

THE COMMISSIONER: Mr Rivera - - -

PN164

MS BAKER: Mr Rivera - - -

*** OSCAR NELSON RIVERA XXN MS BAKER

PN165

THE COMMISSIONER: Just wait a minute. Mr Rivera, this is very important. You are under oath and you are being asked questions. I am expecting that you'll answer them. Just answer the questions?‑‑‑Okay, okay, sorry.

PN166

MS BAKER: Mr Rivera, in your letter of 23 November, you say that a meeting is to be held in two days?‑‑‑Exactly.

PN167

But clause 15, there's nothing in clause 15 that says there is a timeframe in which this is to happen, but you previously, I think, gave evidence that Mr Watters advised you of the meeting of 29 November?‑‑‑Yes, exactly.

PN168

So there was going to be a meeting?‑‑‑Mm.

PN169

And that was going to be in a few days?‑‑‑Exactly.

PN170

You didn't attend the meeting on 29 November?‑‑‑No, I didn't.

PN171

In fact, you made an application to the Fair Work Commission - your application is prior to 29 November, isn't it?‑‑‑No.

PN172

Your application wasn't before 29 November?‑‑‑No, it was after.

PN173

THE COMMISSIONER: I will just indicate that according to the Commission's file, it was lodged on 29 November.

PN174

MS BAKER: Thank you. So it was lodged on 29 November, the same day as the meeting was to be held?‑‑‑My mistake because I haven't seen that.

PN175

So, therefore, if we - 15.4, if I can just get you to read that, it says at 15.4:

PN176

If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.

PN177

In that regard, you didn't try to resolve the dispute at the workplace level before you made your application to Fair Work, did you, because the opportunity for you to do that was 29 November?

*** OSCAR NELSON RIVERA XXN MS BAKER

PN178

THE COMMISSIONER: Answer "Yes" or "No" or say something?‑‑‑Yes, I suppose it was the same day, yes.

PN179

MS BAKER: So you didn't comply with 15.3, which was to try to resolve the dispute at the workplace level, before you made the application to the Fair Work Commission?‑‑‑I submit my meeting, yes, I did.

PN180

But, Mr Rivera, you have already pointed out that there's nothing, or your evidence is that there's nowhere in clause 15 that gives a timeframe to which the employer must have a meeting, so that's correct, isn't it?‑‑‑Can I explain why?

PN181

THE COMMISSIONER: Just answer the question, Mr Rivera.

PN182

MS BAKER: So there's nothing in clause 15 that has a number of days at which the meeting must occur?‑‑‑Definitely not.

PN183

There's definitely not?‑‑‑Yes.

PN184

So, therefore, despite what you've put in your letter and despite the meeting they offered on 29 November, you didn't comply with clause 15.3 before you made the application to the Fair Work Commission?‑‑‑I - I had my reason why I didn't go to the meeting, yes, why I didn't do that, yes.

PN185

All right, so - - -?‑‑‑Because I was scared it was an ambush and, secondly, because the union was against me, they against me, and never in 14 years in the company a monthly meeting is being held - was held - with the - with the company. Never, never even put a notice on the board about this. That's why I feel - I feel threatened because I feel - I feel I was going ambush and - and because I feel very fishy to do this.

PN186

Mr Rivera, there are monthly union meetings, aren't there?‑‑‑But they don't - don't communicate to the members, to the employees, because nobody knows about this meeting until that day.

PN187

Mr Rivera, let me just take you back to 15.3 because, as you point out, this is - you know, you didn't want there to be a breach, but, in fact, you haven't complied with clause 15.3, have you?‑‑‑Well, that's right, yes, yes, and certainly - - -

PN188

You haven't complied with that?‑‑‑Yes, maybe, maybe nominally, yes, I've - - -

*** OSCAR NELSON RIVERA XXN MS BAKER

PN189

All right. Do you accept, though, that there was an opportunity provided to you, whether you wanted to go or not, but there was an opportunity provided to you to have those discussions and that would have meant that clause 15.3 could have been complied with?‑‑‑Yes, definitely, yes.

PN190

Definitely?‑‑‑Yes.

PN191

All right. Since the conference on 19 December, have you spoken with Mr Lawson or Mr Watters about the difficulty you had with the roster?‑‑‑Not really because they don't listen.

PN192

No?‑‑‑Whatever you say, they don't listen, they - they - what's the point to waste my time?

PN193

Mr Rivera, would you accept it's hard for them to be provided with the opportunity to listen if you haven't spoken to them?‑‑‑But they don't listen so many years, four years now, so many things.

PN194

All right. You say in your submissions that Mr Shaun Lawson broke the law?‑‑‑Yes, he did.

PN195

What law is that?‑‑‑Rosters.

PN196

I'm sorry, you are saying, Mr Rivera - can I just ask you a question - Mr Rivera, you're saying that the enterprise agreement is the law?‑‑‑It is.

PN197

That's not correct, though, is it, Mr Rivera?

PN198

THE COMMISSIONER: You can't ask him that, he doesn't know, he's not in the legal - he's not a legal practitioner, he's not legally - - -

PN199

MS BAKER: All right. Would you accept, though - - -

PN200

THE COMMISSIONER: Hang on.

PN201

MS BAKER: Sorry.

*** OSCAR NELSON RIVERA XXN MS BAKER

PN202

THE COMMISSIONER: Don't put those propositions to him.

PN203

MS BAKER: There are a number of signatures attached to your submission. It's not clear - you say there that the signatures are in support of you for a hearing on 6 March. Is that meant to be 6 April?‑‑‑No. What happened is - - -

PN204

So on 6 March was the conference, I think I understand?‑‑‑Yes.

PN205

All right?‑‑‑But - - -

PN206

And so the - - -?‑‑‑But what happened is that I wasn't allowed to - - -

PN207

THE COMMISSIONER: You can do your commentary - you are giving your evidence, just answer the questions, Mr Rivera.

PN208

MS BAKER: So the signatures that are listed there, there's no reference to the dispute clause within those signatures, is there, there's just, I think, a commentary that they support you, I think is the language that's used? Is that correct? Were they - - -?‑‑‑As you can see, I'm not a lawyer. That's my first time, I never been in this situation and, yes, I didn't - I just be very plain in this.

PN209

Okay?‑‑‑That's what - - -

PN210

So the signatures that you have were - there's nothing at the top of those pages that indicates that the employees believe that the dispute clause - so 15.3 was that you tried to comply with that? That's not what - is that what those documents are saying or not?

PN211

THE COMMISSIONER: I don't actually understand that question.

PN212

MS BAKER: I'm just - Commissioner, they are a page - - -

PN213

THE COMMISSIONER: Well, do you want to take him to those if you're going to ask him a question about it.

PN214

MS BAKER: Sure. It's attachment E.

*** OSCAR NELSON RIVERA XXN MS BAKER

PN215

THE COMMISSIONER: Yes.

PN216

MS BAKER: Of the submissions and it just - - -

PN217

THE COMMISSIONER: Just hang on. Have you got that there, Mr Rivera, attachment E to what is now your statement?‑‑‑Yes. That mean the signatures, yes.

PN218

All right, she's going to ask you some - Ms Baker is going to ask you some questions about that.

PN219

MS BAKER: Would it help if I hand this up?‑‑‑Yes, so could you please explain - - -

PN220

Sure. At the top - you can sit down, Mr Rivera, it's all right - at the top of the page, it just says:

PN221

Transdev Sunshine West Depot employees, drivers are certifying their support by signing this note to Oscar Nelson Rivera, who is attending a new hearing in the case Rivera, Oscar v Transdev Melbourne Pty Ltd, which is going to be held on 6 March 2018.

PN222

So, in terms of giving you their support, what support were they giving you?‑‑‑Because I used to be their assistant for their union.

PN223

Yes?‑‑‑And when I was assistant, they come to me and tell they no agree with the changes to their roster.

PN224

Okay?‑‑‑So they ask me, "What you going to do?"

PN225

All right. So in this - - -?‑‑‑And they - "I'll give you my support whatever you do, but do something." That's it.

PN226

All right. So, in the words that are up there, there's no reference to either the dispute clause or rosters?‑‑‑Oh - - -

*** OSCAR NELSON RIVERA XXN MS BAKER

PN227

Do you accept that?‑‑‑Yes, yes, because I don't have experience, I just want this all - I mean, if we had a lawyer or have experience, you know, and I didn't look for really - - -

PN228

So those people could have signed - - -?‑‑‑Legal advice, to be honest.

PN229

Those people could have signed without understanding that this had anything to do with the use of the dispute clause?‑‑‑No, no, because I explained to them because nobody's going to sign something they don't understand, yes, I have to explain to them.

PN230

So you explained to them?‑‑‑I did.

PN231

That this was to be - - -?‑‑‑I did. I explained - I spent a day getting these signatures at 4 o'clock in the morning to 4 o'clock in the afternoon and I explained to them.

PN232

Did you explain to them about the need to comply - this was a jurisdictional matter about the need to comply with the dispute clause?‑‑‑To be honest, I wasn't really concentrating the dispute, I just was concentrating the rosters.

PN233

Okay, right, thank you?‑‑‑But - but, of course, I knew the dispute clause.

PN234

All right. I just want to take you - in the same submissions that we have treated as your witness statement, you state that:

PN235

Mr Shaun Lawson is managing like a despot dictator and he's a liar.

PN236

You didn't really mean that, did you, Mr Rivera?‑‑‑Actually, yes, I did.

PN237

You did?‑‑‑Yes, I did.

PN238

THE COMMISSIONER: All right, I am just going to - - -

PN239

THE WITNESS: I stand for my - I stand for my - I stand for my word because I'm not a liar.

*** OSCAR NELSON RIVERA XXN MS BAKER

PN240

THE COMMISSIONER: Mr Rivera, I am just going to warn you here, you may wish to consider withdrawing that evidence. There is a potential risk for you in terms of action that could be taken against you for making statements of that type as defences to that action. That's a serious allegation?‑‑‑I know.

PN241

Do you understand?‑‑‑I know.

PN242

All right, so do you wish to withdraw that evidence? I am just giving you that opportunity. Do you understand the explanation I have just given you? Do you understand the explanation I have just given you as to why --?‑‑‑Yes, because it can have legal ramifications against me, I understand.

PN243

Okay?‑‑‑But - because it has a big ramification, but it's the truth, it's the truth. The way they did things in the company is appalling.

PN244

Do you want to withdraw the evidence or not, Mr Rivera? I have given you the opportunity; do you want to take it or not?‑‑‑Take it, please.

PN245

You withdraw that evidence?‑‑‑Yes.

PN246

All right, thanks, move on, Ms Baker.

PN247

MS BAKER: Nothing further, Commissioner.

PN248

THE COMMISSIONER: That's it? All right, thanks.

PN249

Anything else you wanted to say, Mr Rivera, just by way of evidence? I will come to you at the end and you can make your submissions about what I should find in the matter, but I am still dealing with you. You are still under oath, so is there anything else you wanted to say that arises out of the questioning that has been levelled?‑‑‑No, that's fine.

PN250

No? All right, thanks, I will release you from your oath and thanks for your evidence.

<THE WITNESS WITHDREW [10.20 AM]

PN251

THE COMMISSIONER: Ms Baker, I have read the submissions you have filed. Is there anything else, any other submissions you want to make today?

*** OSCAR NELSON RIVERA XXN MS BAKER

PN252

MS BAKER: Commissioner, the only other submissions that I would make is that Mr Rivera, under his own evidence, has agreed he hasn't complied with 15.3. As a result, 15.4 cannot be - cannot be - enacted as 15.3 has not been complied with. I think that I will really leave it there and just to rely on the submissions that I have lodged.

PN253

THE COMMISSIONER: Sure, okay. Mr Rivera, anything you want to say by way of final submissions?

PN254

MR RIVERA: After the meeting on the 29th, I was being attacked by my own union because I submit the application to the Fair Work, the F10, you know, and they said, in attachment C - sorry, not C - attachment D, that I'm not allowed to talk about the rosters with anyone, that's including company, so they shut it off for me to continue.

PN255

THE COMMISSIONER: Which one is this?

PN256

MR RIVERA: D, attachment D.

PN257

THE COMMISSIONER: What is the heading on that one?

PN258

MR RIVERA: (Indistinct).

PN259

THE COMMISSIONER: This is an attachment to your statement?

PN260

MR RIVERA: Yes, it is, yes.

PN261

THE COMMISSIONER: I have got one that says, "As you may be aware, Oscar Rivera is" - - -

PN262

MR RIVERA: That's the one.

PN263

THE COMMISSIONER: That one?

PN264

MR RIVERA: That's the one, sir.

PN265

THE COMMISSIONER: Yes:

PN266

Nor will he talk to them or attend meetings on rosters. Further, he is actively working against delegates and (indistinct) and TWU can no longer recognise him as a delegate. Processes will now take place to elect a new assistant delegate.

PN267

That is dated 1 December.

PN268

MR RIVERA: That's right, yes, so the union start a campaign to isolate me and bully me and that's why they intimidating also - that's why I didn't approach anyone because - - -

PN269

THE COMMISSIONER: That's why you didn't go to the meeting on the 29th; is that right?

PN270

MR RIVERA: That's right, because they start to send messages to the members saying all that, you know, and - - -

PN271

THE COMMISSIONER: Yes, I understand that, yes. Anything else?

PN272

MR RIVERA: I know it's not a concern to the court, but I haven't done anything wrong and they sacked me from the position assistant just because I did this.

PN273

THE COMMISSIONER: Yes, I am not determining what - I am just interested in this point about whether or not you followed the procedure. Could I just ask you this question: your evidence was, as Ms Baker pointed out after a series of questions, she ultimately put to you that you had not complied with clause 15.3 and, as I recall your evidence, you agreed with that proposition. Do you remember that? In those circumstances, how would I be able to find in favour that there is jurisdiction in this matter? You have read the submissions the employer has put in, have you?

PN274

MR RIVERA: No, I didn't understand very well the question. I mean, I see that submission - this submission?

PN275

THE COMMISSIONER: Perhaps I will break it down and explain all that.

PN276

MR RIVERA: Please.

PN277

THE COMMISSIONER: Unfortunately, while we are meant to operate informally and so on and we try our best, some of these things are difficult to understand, but, essentially, the submission from the employer is that there is no discretion for the Commission to exercise any powers to resolve a dispute unless it is properly based by the parties following the steps in their various - in their dispute settlement procedure.

PN278

Now, all dispute settlement procedures are different. In their submissions, the employer has made reference to a particular decision that was made not very long ago, late last year, where the Full Bench affirmed that we don't have - "we" the Commission - don't have any discretion to exercise powers under a dispute settlement procedure unless the steps in it are followed.

PN279

The steps are always different. In the case that the employers referred to, there were four steps. Some of those steps can be skipped over if there were certain conditions met and so on. The facts were, of course, quite different in that case.

PN280

In this case, it's a simpler position, there's just one clause really that says that, in the first instance, the parties to the dispute must try to resolve the dispute at the workplace level. It does say "must", they must try, not "should try", "must try", and they have to try to do that by discussions between the employee - that's you in this case - or employees, if it was the group that you purport to represent, and relevant supervisors and/or management. Then:

PN281

If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.

PN282

So the essence of their submission is you can't refer in accordance with 15.4 unless and until you have complied with 15.3.

PN283

Going back to the - let's assume - the first point is do you agree that that is what the clause means, or you don't know?

PN284

MR RIVERA: The dispute clause, is it?

PN285

THE COMMISSIONER: Yes.

PN286

MR RIVERA: Yes, I understand.

PN287

THE COMMISSIONER: Would you agree that it can't be referred to the Commission unless you have fulfilled that step at 15.3?

PN288

MR RIVERA: It has to be a "Yes" or "No"?

PN289

THE COMMISSIONER: Yes.

PN290

MR RIVERA: Or may I explain a little bit what's - - -

PN291

THE COMMISSIONER: Well, ultimately what I am going to decide is whether that step was taken at 15.3, but the first position is I'm assuming - but tell me if I am wrong about this - that you don't disagree that if I found that you hadn't taken that step at 15.3, then there's no basis for the dispute to be here. Do you agree with that?

PN292

MR RIVERA: Because, as I told you before, I never been in a court representing myself. I do not know the law but I know the (indistinct) because I have to know it, and according to my knowledge, I was doing the right thing because it was going to be a breach, and that's my position, and then if it - - -

PN293

THE COMMISSIONER: Mr Rivera, you have a tendency to drift off, with respect.

PN294

MR RIVERA: Sorry.

PN295

THE COMMISSIONER: So you have got to try and listen to what I'm saying.

PN296

MR RIVERA: Sorry.

PN297

THE COMMISSIONER: I am being, I think, fairly clear about what I'm asking you, but I will just go back - we will go back through it again.

PN298

You can say "Yes", "No" or "I don't know" or "I don't understand what you're asking me" - that's fine - but the fundamental proposition, because you said you didn't understand what the employer put, so I'm trying to explain it as best I can - they will jump up if they think I am misrepresenting their submission - but as best as I can explain it, clause 15.4 in the dispute settlement procedure says that if discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission. All right?

PN299

It seems to follow - and then when you read 15.3, which we have talked about quite a bit - that the parties to the dispute have to try to resolve the dispute at the workplace level by discussions between the employee and management. All right?

PN300

What the employer submits is that it follows that you can't lodge a dispute with the Commission unless and until you have tried to resolve the dispute at the workplace level by having discussions. Do you agree with that proposition, don't agree with that proposition, or you don't know?

PN301

MR RIVERA: The one good thing here was the explanation she gave it to me because I had to be - I haven't understood very well. I stand by the clause dispute or my own opinion or - well, the only thing I can say, I did it - here's the proof.

PN302

THE COMMISSIONER: Yes.

PN303

MR RIVERA: The letter.

PN304

THE COMMISSIONER: You write a letter.

PN305

MR RIVERA: Yes.

PN306

THE COMMISSIONER: And you were asked about the letter when you were being cross-examined by Ms Baker and, at the end of that cross-examination, or, sorry, somewhere during that cross-examination, it was put to you whether or not you agreed that the step in clause 15.3 had not been complied with and you agreed with that, is my recollection. Do you remember that? That was your evidence.

PN307

MR RIVERA: If I did - - -

PN308

THE COMMISSIONER: But the question is, in that context, how would it be that - how could it be that I could find that there is jurisdiction if that's your own evidence that the step in 15.3 hadn't been complied with?

PN309

MR RIVERA: Because once you say one thing, you can retract from that or - I still don't know - that's my question, sorry.

PN310

THE COMMISSIONER: Okay. Anything else that you wanted to say?

PN311

MR RIVERA: Yes, about the - I tried - I tried to resolve the problem before I write - I apply to the Fair Work Australia. I did try, I did try.

PN312

THE COMMISSIONER: Perhaps I will try putting this proposition to you: would you agree that the state of the evidence is that in respect of complying or not complying with clause 15.3, you wrote a letter on 23 November, you gave it to Mr Watters on 23 November, that letter asked for a meeting or demanded a meeting within a couple of days, the response from the organisation was to say that you should attend the meeting that was scheduled for 29 November, that your evidence is to the effect that you didn't want to go to that meeting because you felt intimidated by the union and other matters, and then, on the same date, you lodged the application in the Fair Work Commission, the same date that the meeting was being held, 29 November, and, other than that, there's no other evidence that there was any other conversations or attempts to resolve the dispute at the workplace level. Would you agree with that proposition?

PN313

MR RIVERA: I risk that because I was barred, yes.

PN314

THE COMMISSIONER: I beg your pardon?

PN315

MR RIVERA: Because the union - - -

PN316

THE COMMISSIONER: Do you agree that's the state of the evidence that I've - - -

PN317

MR RIVERA: Yes.

PN318

THE COMMISSIONER: Yes, all right, thanks. Anything else you wanted to say?

PN319

MR RIVERA: No, not really. I have many things but I think (indistinct) yes, that's all, that's all.

PN320

THE COMMISSIONER: Okay, thanks, Mr Rivera. Anything in reply?

PN321

MS BAKER: Commissioner, the only thing in reply, the attachment B to which Mr Rivera refers that says he was reluctant to attend a meeting is actually dated 1 December 2017, so it was after that.

PN322

THE COMMISSIONER: Yes, I think I pointed that out.

PN323

All right, thanks. I will reserve the decision and issue it when I am able. That concludes the hearing. Thanks for your attendance.

ADJOURNED INDEFINITELY [10.34 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

TIMOTHY FRANCIS WATTERS, AFFIRMED............................................... PN22

EXAMINATION-IN-CHIEF BY MS BAKER.................................................... PN22

EXHIBIT #R1 STATEMENT OF TIMOTHY FRANCIS WATTERS WITH A ONE-PAGE ATTACHMENT...................................................................................................... PN31

CROSS-EXAMINATION BY MR RIVERA....................................................... PN39

THE WITNESS WITHDREW.............................................................................. PN59

SHAUN JASON LAWSON, SWORN................................................................... PN63

EXAMINATION-IN-CHIEF BY MS BAKER.................................................... PN63

EXHIBIT #R2 STATEMENT OF SHAUN JASON LAWSON WITH TWO ATTACHMENTS................................................................................................................................... PN71

THE WITNESS WITHDREW.............................................................................. PN99

OSCAR NELSON RIVERA, AFFIRMED........................................................ PN110

EXAMINATION-IN-CHIEF BY THE COMMISSIONER............................. PN110

EXHIBIT #A1 OUTLINE OF SUBMISSIONS OF OSCAR NELSON RIVERA TOGETHER WITH ATTACHMENTS..................................................................................... PN115

CROSS-EXAMINATION BY MS BAKER....................................................... PN126

THE WITNESS WITHDREW............................................................................ PN250

Fair Work Commission Transcripts

C2017/6598, Transcript of Proceedings [2018] FWCTrans 126 (19 April 2018)