C2018/1611, Transcript of Proceedings [2018] FWCTrans 233 (6 July 2018)

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PN1

THE COMMISSIONER: Appearances please.

PN2

MS G JARDINE: If the Commission please, I seek leave, once again, I have sought leave already, to - - -

PN3

THE COMMISSIONER: You've both been granted leave.

PN4

MS JARDINE: Thank you. I appear on behalf of the applicants, Commissioner, Ms Jardine.

PN5

THE COMMISSIONER: That's Ms Jardine.

PN6

MR D JONES: Commissioner, Jones, initial D, appearing on behalf of Linfox, the respondent.

PN7

THE COMMISSIONER: Yes, thanks Mr Jones. All right, Ms Jardine?

PN8

MS JARDINE: Commissioner, this dispute arises from the 2014 enterprise agreement and we say that there's an anomaly, a conflict between two of the clauses in the enterprise agreement. If you look at clause 5 of the enterprise agreement, the custom and practice clause of the agreement, clause 5.1 says:

PN9

This agreement is not intended to nor shall it alter a custom and practice applicable to the parties.

PN10

Now, the tension between that and clause 22.1(b) of the agreement, which says:

PN11

Every employee must, at all times, comply with reasonable and lawful instructions of management.

PN12

That is a tension that we say was not really contemplated by the parties or considered by the parties when this enterprise agreement was made and, as a matter of, we say, practice, this tension has remained for a long period of time. However, as the Commission's aware, this matter went before Gregory C, in 2016, and then before the Full Bench in 2017 and the Full Bench - sorry, 2018, the Full Bench handed down its decision in March of 2018 and it made it quite clear, in the decision, that there is a distinction which can be drawn between contractual custom and practice, which had been the focus of the applicant's arguments in the earlier disputes, and industrial custom and practice.

PN13

So the applicant's case now is that there is an industrial custom and practice which has developed in the time that the applicants have worked at Linfox. All but one of the applicants were formerly employed at Westgate Holdings and then transferred to Linfox in about 2007 and we say that since that time when they've been employed by Linfox they have been only required to do their duties that they understood, for example, forklift driving, receivals clerk.

PN14

Now, we say that there's been a number of industrial disputes, and we're calling evidence from seven different witnesses, so it's a bit of a patchwork to put that all together but I will tie it up at the end of the proceedings, about the number of disputes there's been, about what duties people should be performing, what attitude has been taken by the workers, what attitude has been taken by Linfox and how, we say, that Linfox has effectively acquiesced, all along the way, to the status quo, and the status is that the applicants do not perform picking duties as part of their ordinary duties.

PN15

So that, in a very brief nutshell, I can expand much further and it's set out in the written submissions, that, in a nutshell, is the case that is being put by the applicants to the Commission and we're going to be calling seven witnesses and - would you like me to elaborate further at this stage?

PN16

THE COMMISSIONER: No, I'm happy for you to start to bring on the evidence. You've got your witnesses here and we should proceed to hear from them.

PN17

MS JARDINE: Yes. I just have one question for you. What is your practice, each witness - - -

PN18

THE COMMISSIONER: We'll come to the witness practice in a moment. Before we get to that, so thanks for that opening submission, having regard to what you've put in your outline, what Linfox have put in theirs it seems to me, and going through the materials I couldn't detect that the - and bearing in mind that I've come into this file late, no directions were set prior to my involvement, but I did want there to be absolute clarity about the question or questions that I'm being asked to answer, as a means of resolving the dispute, and it seems to me that listing to what you've just said and, as I say, having regard to the submissions that have been put, that the question or questions to be answered are as follows, and I'll just read this out but we'll get a copy to you, but it seems to be this.

PN19

First, I think there's two questions, is there an industrial rather than a contractual custom and practice, for the purposes of clause 5 of the agreement, to the effect that the 31 applicants, hopefully I've got that number right, do not do pick work or, alternatively, do not perform the picking task as part of their ordinary duties? That could be answered yes or no.

PN20

If the answer is no, well that resolves the question. If the answer is yes to the first question, is Linfox prevented from discontinuing it? Yes, or no. But you only get to the second question if the answer to the first question is no. Does that sound like the task that's before me?

PN21

MS JARDINE: Yes.

PN22

THE COMMISSIONER: Yes, all right. Well, I'll just run through it and so there will be a record on the transcript, but I will get my associate to put it on a piece of paper and hand it to you and get you to confirm that this is the question. Again it's is there an industrial, rather than a contractual customer practice, for the purpose of clause 5 of the agreement, to the effect that the 31 applicants do not perform the picking task, I think is the better way in which - - -

PN23

MS JARDINE: I'd just like to refine that word "picking task" because we say the role of picking because it's - I'll just refine that, because picking involves a number of components and a lot of them do some of the components some of the time.

PN24

THE COMMISSIONER: All right. Do not perform the role of picking as part of their ordinary duties, yes or no. If the answer to the first question is yes, is Linfox prevented from discontinuing it.

PN25

MR JONES: If I may?

PN26

THE COMMISSIONER: I'll certainly give you a chance in a sec, Mr Jones, but that sounds okay to you?

PN27

MS JARDINE: Could you just say the second one? Is Linfox what, sorry?

PN28

THE COMMISSIONER: If the answer to the first question is yes, is Linfox, and that should be probably the respondent's name correctly put, Linfox Australia Pty Ltd perhaps, prevented from discontinuing it, I've got, it might be better if I had it as discontinuing that custom and practice. But we've only got to the second question if I've found that there is one. Yes?

PN29

MS JARDINE: Yes, Commissioner.

PN30

THE COMMISSIONER: Are you happy with that?

PN31

MS JARDINE: Yes.

PN32

THE COMMISSIONER: I just want to hear from Mr Jones on that point and get that squared away. Mr Jones?

PN33

MR JONES: Thank you, Commissioner. Just a question, I have no problems with the way the first question is framed, or the second, but with the first question I do context the term "role of picking".

PN34

THE COMMISSIONER: Right?

PN35

MR JONES: It really should be confined to the picking task. I mean the task of picking, and I don't mean to lead submissions now, but is just a task among many at the warehouse, it's not an actual role. And the classification structure does not define roles within it, is the point I want to make.

PN36

THE COMMISSIONER: Is picking work better than - - -

PN37

MR JONES: Picking work is fine.

PN38

THE COMMISSIONER: Are you satisfied with that, picking work?

PN39

MS JARDINE: I think we have to - (indistinct) stuck for a dispute on this one. I think we've got to be very careful because I understand the way the respondent has presented its evidence it's tried to say that because components of picking are performed by each of these people in part of their tasks, therefore they're doing picking. I think there is a distinct - if somebody's put on picking - I'm just thinking what other word we can have, Commissioner.

PN40

THE COMMISSIONER: I would have thought picking work gets you there, to the extent that picking work is, presumably if you can't identify that work as a distinct thing well your case is going to have difficulty isn't it? So isn't it just a matter of saying - if one can't delineate that as a particular task or work, then one would wonder how it could a custom and practice for a start. So what's the issue with it?

PN41

MS JARDINE: I'm just thinking, Commissioner, if you said, if Linfox do not perform any picking work as part of their ordinary duties, we could live with that, so any picking work.

PN42

THE COMMISSIONER: Does not perform any picking work as part of their duties. Mr Jones?

PN43

MR JONES: I have no objection, Commissioner.

PN44

THE COMMISSIONER: All right. So the question that I'm resolving, just be clear because this will be the bedrock on which the case is fought. Is there an industrial rather than a contractual custom and practice, for the purposes of clause 5 of the agreement, to the effect that the 31 applicants do not perform any picking duties, as part of their ordinary duties, yes or no? That's the question that they'll answer. And if the answer to the first question is yes, is Linfox prevented from discontinuing that custom and practice? Agreed? Ms Jardine?

PN45

MS JARDINE: It's agreed by all the applicants.

PN46

THE COMMISSIONER: Yes. Mr Jones?

PN47

MR JONES: My preference, Commissioner, would be, as you first put it actually, is to call it a picking task. I mean picking task, store order auditing, checking, they're all tasks within warehouse. I think Ms Jardine, in this matter, is trying to or attempting to define it in a way which suits her case, I understand that. But at the end of the day they are just tasks, of which there are many.

PN48

THE COMMISSIONER: The question is, is there any difference between duties and tasks?

PN49

MR JONES: No, I don't have a problem with that. It's the "any". I mean she simply expressed that as, "Do not perform the picking task," or, if you prefer, "Do not perform the picking duty." And the point that Ms Jardine - - -

PN50

THE COMMISSIONER: So you'd be happy with "To not perform any picking task"?

PN51

MR JONES: Or, "To not perform the picking task."

PN52

MS JARDINE: The applicants can't live with that because, for example, there are a couple of the applicants who - they have to check what pallets, that's a part of their receivals task, so they have to do quality checks, so they might actually have to unravel a pallet, and I think that's part of the evidence of the respondent, and work whether the - you know, quality control, whether the pallets got 10 green boxes and five red boxes, or whatever it's meant to have in it.

PN53

Some of those tasks are definitely picking tasks, but it's only part of their duties. I'm saying it's the particular duty of picking, and it's not just a task, it's a job that these people see and that's why we're before the Commission, we see the task of picking or the job of picking as something the applicants say they've not been required to perform. So to say "any picking tasks" just would not be acceptable for the applicants.

PN54

THE COMMISSIONER: You just said then, "The job of picking," is that where we go?

PN55

MS JARDINE: Yes, the job of picking. Yes, that's fine by us.

PN56

THE COMMISSIONER: That more broadly construes it in a way that suits where you want it to go?

PN57

MR JONES: "The job of picking" is fine with me, Commissioner.

PN58

THE COMMISSIONER: So there's been no change to the other words that I've already been through three times, but it will now be, "To the effect that the applicants do not perform the job of picking as part of their ordinary duties," agreed? Agreed, Mr Jones?

PN59

MR JONES: "The work of picking," Commissioner? Because "job" has connotations that you're engaged as a picker to do a job, job as a picker, and that doesn't sit well with the respondent, Commissioner.

PN60

THE COMMISSIONER: Yes, I tend to agree with that. You'd be happy with that, with, "The work of picking"? That is the ground we're traversing.

PN61

MS JARDINE: Well, I've now got - because there's so many applicants I've got a couple of people that want to have a little - I'm not on site and they're the people who are on site, so I'd like just five minutes to talk to them just to see what their position is on this.

PN62

THE COMMISSIONER: In the end, just to be clear all of you, I will resolve what the question will be, if necessary I'll have to do that on other occasions, in other matters, but it is much better if there can be a consensus on it, but I'd want to be convinced why - I accept what you say about not being boxed into a corner in terms of what picking is, but if this is a dispute about, essentially broken down to the point of, "Look, these people, as a matter of custom and practice, within the meaning of the agreement, don't do picking work as part of their ordinary duties," well, it seems - - -

PN63

MS JARDINE: That's fine, they don't do picking work as part of their ordinary duties, I'm happy with that.

PN64

THE COMMISSIONER: You're okay with that, Mr Jones?

PN65

MR JONES: Yes, Commissioner.

PN66

THE COMMISSIONER: It's just reversing the words, "Picking work, work of picking." So it is now, "To the effect that the 31 applicants do not perform picking work as part of their ordinary duties." Agreed? Ms Jardine?

PN67

MS JARDINE: Yes, Commissioner.

PN68

THE COMMISSIONER: Mr Jones?

PN69

MR JONES: Yes, Commissioner.

PN70

THE COMMISSIONER: Right. And you're agreed with the second question, you don't need me to read that again?

PN71

MS JARDINE: Sorry?

PN72

THE COMMISSIONER: You're agreed with the second question, if it arises, you don't need me to read that again?

PN73

MS JARDINE: Yes.

PN74

MR JONES: No, Commissioner.

PN75

THE COMMISSIONER: All right, very good. Thank you. Over to you, Ms Jardine. You wanted to speak to me about - - -

PN76

MS JARDINE: Yes, I did want to just ask you what your practice is. Well, I've got two subpoenaed witnesses, so clearly their evidence needs to be given orally, but in relation to the other witness statements, are you happy for those witness statements to be adopted as they are or is it your preference that I take each person through the contents of their witness statement?

PN77

THE COMMISSIONER: No, no, no, I'm certainly not wanting you to do that. My preference would be that the ordinary practice would be that they would - they're signed statements but not sworn statements, are they?

PN78

MS JARDINE: That's right.

PN79

THE COMMISSIONER: So I'd be expecting you to ask the witness to adopt them, if that's their evidence, and change anything that they want to change, in the customary manner, and leave it that that. If there's anything additional or you want leave, then you'll do that and then Mr Jones will cross-examine as he requires.

PN80

MS JARDINE: Thank you. It's just Commissioner's do have different practices and I just wanted to clarify with you.

PN81

THE COMMISSIONER: Sure. I'd also be requiring, I would imagine, unless there's consensus otherwise, that witnesses who are yet to give evidence, notwithstanding that everyone's an individual applicant in the matter, I'd want those to be excluded from the room. Has there been some understanding reached about the practice for that, between the - - -

PN82

MS JARDINE: Excluding any witness who's an applicant.

PN83

THE COMMISSIONER: No. To be clear, I'm accepting the fact that you've got 31 applicants, but I'd be concerned if there was a capacity for every single person giving evidence in the case to hear what everybody else is saying, if that makes sense. But have you had any discussions with - - -

PN84

MS JARDINE: Well, I haven't had any discussions with Mr Jones about that. My only concern is that as an applicant, in the ordinary course of any proceedings, the applicant has to be in the Commission or the court so that they can give instructions about anything that's - - -

PN85

THE COMMISSIONER: I accept that, but you have 31 applicants, it's an unusual circumstance.

PN86

MS JARDINE: I realise that, it's a difficulty.

PN87

THE COMMISSIONER: That's one matter that has to be taken into account. The other matter that has to be taken into account is that I want to be satisfied that the matter proceeds efficiently, that there's procedural fairness, and that I get evidence that is good evidence, evidence that's not tainted by the fact that people are able to hear the testimony of their colleagues. Mr Jones have you got any views about the conduct of this matter?

PN88

MR JONES: I do, Commissioner, and I agree with your opening about your views about the applicants. Our preference is that any applicant that is going to be giving witness does not remain in this room until they have done so, in relation to their evidence.

PN89

THE COMMISSIONER: So what's the proposed order, Ms Jardine?

PN90

MS JARDINE: Well, I need to reconsider that, if you're making that order, so I'll just need a couple of minutes to reconsider that because there's some witnesses that - some of the applicants I'd prefer having in the Commission as soon as they've given their evidence. I was going to - I am proposing to call Luke McCrone first, because he needs to get away, but aside from that I need to consider the other witnesses.

PN91

THE COMMISSIONER: Mr Luke McCrone's availability is probably important to him but less important to me. What's important is the efficient conduct of the proceedings.

PN92

MS JARDINE: Yes. Look, I'm happy for him to go first and then he can leave, and that doesn't bother me, but the other witnesses, I do need to - - -

PN93

THE COMMISSIONER: That's fine, but obviously applicants who are not giving evidence, they're no issue, any applicants - they can stay in the room for the whole proceedings. Any applicants who are giving evidence, while Mr McCrone's in the stand, will have to be out of the room, is that clear.

PN94

MS JARDINE: Yes, that's fair. Can I have the list back for a minute because I think I need to reorder that list.

PN95

THE COMMISSIONER: Yes, of course. Well, look, in the circumstances we might just stand down for five minutes, have a discussion with your instructors and work out what you're going to do.

SHORT ADJOURNMENT [10.31 AM]

RESUMED [10.54 AM]

PN96

THE COMMISSIONER: All right, can I just, before we start, I'm just handing to the parties a copy of the question that I understand we've agreed. I'd just ask you to take a moment to read it.

PN97

MS JARDINE: That's fine, Commissioner, thank you.

PN98

THE COMMISSIONER: That's fine, yes.

PN99

MR JONES: Thank you, Commissioner.

PN100

THE COMMISSIONER: All right. I mark that as FWC1, just so we're all clear.

EXHIBIT #FWC1 QUESTIONS AGREED BY PARTIES

PN101

THE COMMISSIONER: All right, thanks, Ms Jardine.

PN102

MS JARDINE: Apologies for the move, but there seems to be a problem with lighting.

PN103

THE COMMISSIONER: That's all right, sorry, the Fair Work infrastructure has failed us today. Over to you, what do you want to do? Are you calling a witness?

PN104

MS JARDINE: Yes, sure. I call Mr Arthur Bregiannis.

PN105

THE COMMISSIONER: Yes, Mr Bregiannis.

PN106

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

PN107

MR BREGIANNIS: Arthur Bregiannis, (address supplied).

<ARTHUR BREGIANNIS, AFFIRMED [10.56 AM]

EXAMINATION-IN-CHIEF BY MS JARDINE [10.56 AM]

PN108

THE COMMISSIONER: Yes, Ms Jardine?

*** ARTHUR BREGIANNIS XN MS JARDINE

PN109

MS JARDINE: Mr Bregiannis, you've made three witness statements in this proceedings?‑‑‑Yes.

PN110

Do you have a copy of each of those statements with you now?‑‑‑Yes, I do. Can you hear me? Can everyone hear me?

PN111

Yes. Can you just have a look, first, at the first witness statement, is there any corrections or alterations which you wish to make to that witness statement?‑‑‑Yes, I do.

PN112

Which paragraph, please?‑‑‑At 6(c), I've stated that the employees who were - so this was one of the groups, so the third group I've stated that the employees who were Linfox hires who were engaged to work Tuesday to Saturday, it wasn't just Tuesday to Saturday personnel, it was also others that were engaged at a later time.

PN113

THE COMMISSIONER: So what do you want that clause to read as?

PN114

MS JARDINE: What do you want it to say?‑‑‑I want it to read, "The employees who were engaged by Linfox at a later time, including some Tuesday to Saturday personnel."

PN115

When you mean "a later time," do you mean after 2007, is that what you mean?‑‑‑Yes. Yes, I think that came into effect, yes, about 2012.

PN116

So engaged in approximately 2012?‑‑‑Yes, I believe so.

PN117

All right. Is there any other changes you wish to make?‑‑‑Yes, I do.

PN118

Yes?‑‑‑In my further witness statement there's part 2(d), there's been a bit of a miscommunication. It says that, "I perform the picking as part of my inventory duties," that's not true, I was not in inventory when I did pick. The reason that I picked was because it was transition time, they ran out of forklift work, I was a forklift driver at the time. They asked for a volunteer to pick, because they didn't have enough forklift work, and I wanted to learn it from the point of view of a union delegate.

PN119

Apart from those two changes, are there any other changes to your witness statements?‑‑‑Look, I don't believe so, at this stage, no.

*** ARTHUR BREGIANNIS XN MS JARDINE

PN120

Now, Mr Bregiannis - - -

PN121

MR JONES: Commissioner, I'm not sure what the change was, in relation to 2(d), could that - - -

PN122

THE COMMISSIONER: The second one?

PN123

MR JONES: Yes.

PN124

THE COMMISSIONER: Yes, neither am I. So what do you say 2(d) now reads as, in your further statement?‑‑‑Okay. I recall picking on two occasions, for no more than a total of 90 minutes.

PN125

Yes?‑‑‑This was while I was a forklift driver. We ran out of forklift work in the new warehouse, it was a transition into the new warehouse, we were asked for one volunteer amongst a group of about, I don't know, 10 or eight and this was before my time in inventory.

PN126

And you no longer rely on the words, "I performed this picking as part of my inventory duties"?‑‑‑Yes, that's correct.

PN127

And also delete the words, "Not as part of my ordinary duties"?‑‑‑Correct.

PN128

Do you retain the words, "I have not performed picking duties on any other occasion"?‑‑‑Since then, no. Since then, no. Before that I have occasionally picked, as a team leader.

PN129

So do you withdraw what was said in that last sentence or you're amending that, are you?‑‑‑Well, I'll change that last sentence to, "I have not performed picking duties since 2012."

PN130

Did you get all that, Mr Jones?

PN131

MR JONES: Thank you, Commissioner.

PN132

THE COMMISSIONER: Thanks, Ms Jardine.

*** ARTHUR BREGIANNIS XN MS JARDINE

PN133

MS JARDINE: Mr Bregiannis, you've heard the discussion in the Commission this morning about the questions before the Commission, and one of the issues was the 31 applicants do not perform - - -

PN134

THE COMMISSIONER: Before you go on, are you asking the witness whether he's swearing that these statements are true and correct and - - -

PN135

MS JARDINE: I can do that any time you like. Yes, so I'm happy to do that. Your witness, are your three witness statements otherwise true and correct?‑‑‑I believe so.

PN136

I seek to tender each of them with their annexures and exhibits.

PN137

THE COMMISSIONER: All right, no objections so the first witness statement of Mr Bregiannis we'll mark as A1 and the further witness statement - I should say that first witness statement has 21 paragraphs and some - how many attachments does it have, Ms Jardine, 20?

PN138

MS JARDINE: Sorry?

PN139

THE COMMISSIONER: How many attachments does it have? It has 20 attachments? I'm just identifying the documents.

PN140

MS JARDINE: Sorry, I can't always hear you. Twenty.

PN141

THE COMMISSIONER: That's A1.

EXHIBIT #A1 WITNESS STATEMENT OF ARTHUR BREGIANNIS WITH 20 ATTACHMENTS

PN142

THE COMMISSIONER: And the further witness statement - - -

PN143

MS JARDINE: Then there's the additional witness statement.

PN144

THE COMMISSIONER: Yes, which has two attachments to it and is two paragraphs, is A2.

*** ARTHUR BREGIANNIS XN MS JARDINE

EXHIBIT #A2 FURTHER WITNESS STATEMENT OF ARTHUR BREGIANNIS WITH TWO ATTACHMENTS

PN145

THE COMMISSIONER: Thanks. Go on, Ms Jardine.

PN146

MS JARDINE: I was just asking you a question before, you heard the discussion in the Commission about how the question before the Commission is defined, and the question that's been agreed is that the 31 applicants do not perform or do not do picking work as part of their ordinary duties, can you just explain to the Commission what your understanding of picking work is, please?‑‑‑Yes. Picking work involves getting a Vocollect, which is an RF unit that sends voice commands to our headset, you follow these voice commands, you jump on a pallet mover, or a tugger, that's what's known in the industry, you go around on either three cages or two pallets and then you follow instructions in the Vocollect and you pick boxes and you sort of zig-zag or you snake around all the aisles and you assemble two pallets or three cages. You then separate the pallets, you wrap the pallets in a cling wrap, you then pick up these pallets again and you put them into a dispatch lane, ready to be put onto a trailer, but you don't - you don't do the trailer work. That's picking.

PN147

Thank you. Now, I just want to take you to your witness statements, I just want to clarify, there's a number of emails between various parties and yourself, can you have a look at AB1 please?‑‑‑Yes.

PN148

There's a series of emails between yourself and a Peter Bennett?‑‑‑Yes.

PN149

Can you identify, this is in September 2013, can you identify who Peter Bennett was, in Linfox, around September 2013?‑‑‑Yes, I believe he was an operations manager at the time.

PN150

Thank you. AB2 is an email between yourself and a Sally Vasilevski(?) and Peter Bennett, and this was October 2013. Can you identify who Sally Vasilevski was, in around about October 2013?‑‑‑Yes, she was my co-delegate. She was my co TWU delegate.

PN151

AB3, can you have a look at that, please?‑‑‑Kane Sorbello(?).

PN152

Kane Sorbello, could you identify who he is, please?‑‑‑Yes, he was an ops manager at the time too.

*** ARTHUR BREGIANNIS XN MS JARDINE

PN153

Kiro Christovski(?)?‑‑‑I believe he was either a weekend shift manager or a team manager at the time. He's had numerous roles.

PN154

Luke McCrone?‑‑‑Luke McCrone was TWU organiser.

PN155

So not an employee of Linfox?‑‑‑Correct. Union organiser, yes.

PN156

And Sally Vasilevski ad Peter Bennett we've already covered?‑‑‑Yes.

PN157

AB4 has those names, AB5, AB7, Mem Suleyman(?)?‑‑‑Are we looking at AB7? Okay. Mem Suleyman is another organiser at the TWU.

PN158

Then part of AB7 there's Phil McInerney(?)?‑‑‑Yes, he was a DC manager.

PN159

All right. So the manager of the whole operation?‑‑‑Yes, correct.

PN160

All right. So this email's February 2014 where his name appears, do you know when he became DC manager?‑‑‑It would have been about that time. I believe it was late 2013, but I don't know the exact date.

PN161

Do you say 2017 or - - -?‑‑‑No, no, 2013, late 2013, I believe.

PN162

Thank you. AB8, this is an email that was sent on 5 May 2014, and there's Kiro Christovski, we've already discussed him, but Ali Elbob(?)?‑‑‑Ali Elbob I believe he's had a couple of roles. He's been team manager but also a shift manager as well and I believe, at the time, he might have been a team manager, maybe working on the weekend I think. I believe, which is why I probably would have sent it to him at the time, because they were in charge of the weekend at the time.

PN163

AB11, John Geradi(?), this is April 2013?‑‑‑John Geradi had a position in HR, I believe, at the time.

PN164

HR for Linfox?‑‑‑HR, yes.

PN165

There's another email of 27 October 2013?‑‑‑In AB11?

*** ARTHUR BREGIANNIS XN MS JARDINE

PN166

I think it is, yes, and it's to Ratu Tubia(?)?‑‑‑Okay, Ratu was, at the time, I think he used to be - I think he used to organise the duties at the time, like a planner, I believe.

PN167

David Hight, just lower down in the same email?‑‑‑David Hight was a team manager at the time, I believe.

PN168

And Daniel Calaspisius(?)?‑‑‑Calaspisius, he was a team manager at the time.

PN169

A few pages on there's an email to - it's got at the top AB, and there's 4 down the bottom of the page and there's an email to Greg Plummer(?)?‑‑‑Yes, he was a shift manager at the time.

PN170

All right. And David Farrell(?)?‑‑‑David Farrell was the, I believe, planner or - he would look at the volume of boxes coming in. The work required and then allocate the appropriate resources to it.

PN171

AB12 now?‑‑‑Yes.

PN172

Can you tell the Commission who Andrew Angeles(?)?‑‑‑Angeles, Angeles.

PN173

Angeles, all right?‑‑‑Andrew Angeles was a - he was a team - this was a transition period, he was a team leader but also acting under direction of management. So he would organise the forklift drivers. So he was - sorry, Glenys, so he was very much like a team manager, but not officially.

PN174

Thank you. AB13, the second page of that?‑‑‑Tristan Sharp(?)?

PN175

Yes?‑‑‑Tristan Sharp is currently sitting in the room. Tristan Sharp at the time was a team manager, I believe.

PN176

Now, there's some later emails, AB17 and 18, we've already mentioned these people, David Farrell and Ratu Tubia, is it your understanding that they were still holding the same roles at the time when these emails were sent?‑‑‑Yes, I believe so. However, I think Ratu has moved - I think Ratu moved over a couple of places, I believe.

*** ARTHUR BREGIANNIS XN MS JARDINE

PN177

So what was his role when you sent him this email, on 24 August 2014, to the best of your memory?‑‑‑Well, he was obviously involved with - I think he was obviously involved with resource planning. So he would allocate people to tasks.

PN178

AB19?‑‑‑Ian Morrison(?)?

PN179

Yes?‑‑‑Ian Morrison is a fellow worker. He got involved in a conversation with some managers and he sent me an email about it.

PN180

Now, a few more pages on there's a lot of people we've mentioned, this is 28 November 2014, and one person we haven't mentioned is a Matt Hobson(?)?‑‑‑Matt Hobson?

PN181

Yes?‑‑‑Yes, Matt Hobson, he works in systems and he does like odd projects. He helps with - so if there's any system-related issues, like if there's any system-related issues with WMS or if there's any side projects on the side. So I think he helped to come up with the rostering system the way it currently is, which has evolved from the original one that I put forward.

PN182

A few emails on, Friday, 14 November, you sent an email to a Chris Talevski(?)?‑‑‑Okay. Sorry, Glenys, AB20?

PN183

What's the name that's mentioned there?‑‑‑Chris Talevski.

PN184

Yes, that's the one, yes?‑‑‑Okay, that's all you meant. Chris Talevski, at the time was - well the DC manager reported to him, so I believe Chris Talevski, at the time, was retail manager, Coles.

PN185

Abiu Yissa(?), this is in your further affidavit and it's the exhibit AB21 and it's an email on 5 December 2013, from Abiu Yissa to yourself?‑‑‑Yes, I see it.

PN186

Who is that person?‑‑‑Abiu Yissa is a team manager.

PN187

Team manager?‑‑‑Yes.

PN188

No further questions, thanks, Commissioner.

PN189

THE COMMISSIONER: Just before you sit down - - -

*** ARTHUR BREGIANNIS XN MS JARDINE

PN190

MS JARDINE: Sorry, there's one more I omitted, Tristan Sharp?‑‑‑Yes, I think we've - I believe we've covered him before, Tristan was, I believe, operations - no, sorry, I apologies, he was a team manager at the time.

PN191

Team manager, thank you?‑‑‑Yes.

PN192

No further questions, thanks, Commissioner.

PN193

THE COMMISSIONER: Just to point out to you that there were three witness statements that have been filed in the matter, you've not referred to the third, the additional further witness statement, that's no longer relied on, is it?

PN194

MS JARDINE: Sorry. Yes, all three I'm going to be relying on, yes.

PN195

THE COMMISSIONER: Well, you haven't asked him about it.

PN196

MS JARDINE: Sorry. I'm a little bit having difficulty hearing you some of the time. But the third witness statement, is the contents of that true and correct?‑‑‑Are we talking about the one with the email attachments on it, this one?

PN197

Yes, the very short one, yes.

PN198

THE COMMISSIONER: It's two paragraphs, the second paragraph has three subparagraphs, (a), (b) and (c), it was dated 7 June 2017. Do you have that in front of you?‑‑‑Yes.

PN199

It has two attachments?‑‑‑Yes.

PN200

You say that's true and correct?‑‑‑Yes.

PN201

You seek to tender that, Ms Jardine?

PN202

MS JARDINE: I seek to tender that, Commissioner.

PN203

THE COMMISSIONER: There's no objections? A3.

*** ARTHUR BREGIANNIS XN MS JARDINE

EXHIBIT #A3 THIRD WITNESS STATEMENT OF ARTHUR BREGIANNIS

PN204

THE COMMISSIONER: Thanks, Ms Jardine. Mr Jones?

CROSS-EXAMINATION BY MR JONES [11.16 AM]

PN205

MR JONES: Thank you, Commissioner. Commissioner, if I could address a central matter, first of all, before I commence my cross-examination of Mr Bregiannis?

PN206

THE COMMISSIONER: Is it the matter of excluding from the room?

PN207

MR JONES: I don't think so, Commissioner, unless you think otherwise.

PN208

THE COMMISSIONER: All right.

PN209

MR JONES: You may recall - - -

PN210

THE COMMISSIONER: Could you just direct one of the microphones, thanks.

PN211

MR JONES: Sorry. You may recall the applicants made an application in relation to orders for the production - notice to produce documents and in the matter before you the parties agreed that we would supply certain documents. The respondent is of the view that we have supplied those documents to Ms Jardine and to the Commission, which I think you both have received and, from the respondent's perspective, we would seek to rely on some of those documents. So I put that request before you. We say that, on the basis of section 590, that under that particular section of the Act that the Commissioner has the powers to inform itself and we say that these documents are relevant to this matter and the Commission would be well informed by these documents, because it goes to the heart of the matter.

PN212

THE COMMISSIONER: Sure, but I'll make this point, there seems to be a substantial volume of them and I'll only be having regard to those documents that I'm taken to as part of the evidence.

PN213

MR JONES: Yes, Commissioner, and we can take you to that very easily.

*** ARTHUR BREGIANNIS XXN MR JONES

PN214

THE COMMISSIONER: It's a matter to the parties how they deal with what's been produced. Yes, okay, thanks Mr Jones.

PN215

MR JONES: Thank you, Commissioner.

PN216

MS JARDINE: Commissioner, I'm a little bit surprised by this application now, I've had no knowledge of it before right now. The extracts of each person's employment contract details is set out, at great length, in Mr Brenden Milburn's witness statement and if we had not sought those documents, and we sought them for certain purposes, they would not be before the Commissioner before. In my submission, those documents should have been tendered as part of the witness statement of Brenden Milburn or an additional witness statement, so we'd be on notice about them. I don't have the opportunity of - you may be aware that there was a few boxes of these documents and I have not had the opportunity to put every detail of every document to every person that's covered by these documents.

PN217

THE COMMISSIONER: Well, it's a matter, Ms Jardine, how you progress the case. You asked for documents to be produced, by way of an order, the outcome of those proceedings was that I gave an indication that I thought it lacked specificity and the consensus was that you were to have some further discussions with the respondent about tailoring and making the request more specific and I left the parties to do that. Now, as an outcome of those proceedings, sorry, as an outcome of those discussions it appears that documents were produced by the employer. It's up to the parties what they do with those documents. I'm just making the point, in respect to Mr Jones, I'm not going to be crawling through those documents without guidance from one or other of the parties as to what I'm to make of them, so you should both be well aware of that. But if either you or he wants to refer to them, that's fine. If you want to put them to witnesses I don't mind. It's a matter for you how you run your case.

PN218

MS JARDINE: The other aspect is the documents were just provided a couple of days ago, I mean there is a large volume of documents. We'll just see how we go then, Commissioner.

PN219

THE COMMISSIONER: All right.

PN220

MS JARDINE: Thank you.

PN221

MR JONES: Mr Bregiannis, what might help, Commissioner, I've got a number of books here that I think if I hand you up a set of four books, and I've got a set of four for Ms Jardine and I've got a set of four for every witness that goes into the witness box. It would be helpful I think, so I'll hand those up now.

*** ARTHUR BREGIANNIS XXN MR JONES

PN222

MS JARDINE: Maybe if Mr Jones can just advise the Commission what's in these books, so if there's any - - -

PN223

THE COMMISSIONER: I certainly will, Ms Jardine, thanks.

PN224

MR JONES: Commissioner, contained within these four volumes are simply all of the witness statements from the applicants, the applicant's submissions, the respondent's submissions, the respondent's witness statements and 80 exhibits, minus, of course, the three videos which I believe the Commission has on file and I've also given to the applicants. That is all that's contained in those volumes.

PN225

THE COMMISSIONER: Thanks.

PN226

MR JONES: Mr Bregiannis, what I'll be doing is I'll be referring to particular exhibits, which are all tabulated and page numbers, so hopefully this will make this as efficient as possible.

PN227

THE COMMISSIONER: Mr Bregiannis, you can take those, just keep the microphone close to where you are, you can take the documents down on the table in front of you, is there a table in front of you?‑‑‑Right here?

PN228

Yes?‑‑‑No.

PN229

There's nothing there?‑‑‑No.

PN230

Nothing you can put them on?‑‑‑No.

PN231

All right, maybe just move them on top of your other materials. Just don't move the microphone too far away?‑‑‑Okay.

PN232

Thanks for that.

PN233

MR JONES: Mr Bregiannis, could I refer you to BM82, which is page 1153. Do you have that in front of you, Mr Bregiannis?‑‑‑Yes.

PN234

Now, this is a copy of your contract of employment, when you commenced with Westgate, on 15 April 2002, that's correct?‑‑‑Correct.

*** ARTHUR BREGIANNIS XXN MR JONES

PN235

You were a union delegate for the TWU from 2012 until February 2018?‑‑‑Yes.

PN236

Then had been a delegate for the NUW, that's correct, isn't it?‑‑‑Correct.

PN237

So therefore you've been a union delegate for approximately six years, that's correct?‑‑‑Yes.

PN238

So therefore your knowledge of matters, with respect to industrial relations and enterprise agreements would be better than employees without such experience, do you agree with that?‑‑‑Some employees have got hidden talents but, yes, I - - -

PN239

In relation to industrial relations and enterprise agreements?‑‑‑Yes.

PN240

Now, in relation to your contract of employment, BM82, you agreed to the terms and conditions of this employment contract, didn't you, by signing it on 15 April 2002, that's correct?‑‑‑If this is my letter of offer, yes.

PN241

That's your signature on page 1155?‑‑‑Yes.

PN242

THE COMMISSIONER: It's 12 April, isn't it?

PN243

MR JONES: Sorry, 12 April, Mr Bregiannis?‑‑‑Yes.

PN244

Now, if I could take you to the opening paragraph, so third paragraph down, below, "Dear Arthur," is says there:

PN245

The terms and conditions of your employment are as follows but, in any event, are governed by the conditions of the Transport Workers' Award and Westgate Logistics Enterprise Agreement.

PN246

Now, Mr Bregiannis, you would accept, therefore, the following two facts, first, that your terms and conditions are set out in your contract of employment, do you agree with that?‑‑‑Yes.

PN247

And, secondly, they are governed by the underpinning instruments, the enterprise agreement and the award, that's correct, isn't it?‑‑‑Yes.

*** ARTHUR BREGIANNIS XXN MR JONES

PN248

You would accept that at this juncture, in April 2002, your classification designation or classification title was that of a distribution facilities worker grade 2, arising from the '96 award, that's correct, isn't it?‑‑‑Which grade are you referring to?

PN249

Distribution facilities worker grade 3, sorry, Mr Bregiannis?‑‑‑Yes, I was put onto grade 3, yes.

PN250

Thank you. Now, Mr Bregiannis, the classification structure, in clause 18 of the '96 award, and I might hand you up a copy of that award, I don't believe it's in the exhibits.

PN251

THE COMMISSIONER: '96 or '98?

PN252

MR JONES: Well, it's an interesting dilemma there, Commissioner. Now, Mr Bregiannis accepted that it was the - he was a distribution facilities worker, which is the classification under the '96 award, so I didn't need to press him on that point.

PN253

THE COMMISSIONER: All right.

PN254

MR JONES: Now, Mr Bregiannis, can I take you to clause 18 of that award, do you have that in front of you?‑‑‑Yes.

PN255

Page 17?‑‑‑Yes.

PN256

Yes, at page 18, or commences at 17-A-2 on that document, do you have that?‑‑‑I can see at the bottom of my page 17-3.

PN257

Page 17-A-2. Can you see clause 18.2, classifications?‑‑‑Yes.

PN258

We'll just start from there, Mr Bregiannis. Now, this award was based on skills and duties, this classification structure was based on skills and duties, wasn't it?‑‑‑I haven't seen this in detail before, so I need to read it.

PN259

Well, maybe it might be helpful, can you identify anywhere in that award where it says pallet truck operator or clerk?

*** ARTHUR BREGIANNIS XXN MR JONES

PN260

MS JARDINE: My client's just been given a maybe 40 page document, that's an entirely unfair question.

PN261

THE COMMISSIONER: Yes, I agree. You don't need to answer that.

PN262

MR JONES: All right, Mr Bregiannis, could I take you to distribution facilities worker grade 3, 18.2.3, do you have that in front of you?‑‑‑Yes.

PN263

Do you see where it says:

PN264

Sound working knowledge -

PN265

at point 4:

PN266

of all distribution facilities, duties performed at levels below this grade, exercises discretion within the scope of this grade.

PN267

?‑‑‑Yes.

PN268

Now, do you accept, Mr Bregiannis, that in a warehousing environment that picking work would arise from that provision?‑‑‑What do you mean by that question? Like are you saying that a grade 3 should be expected to do that work, is that what you're asking?

PN269

What I'm putting to you is, under the section 4, where it says:

PN270

Sound working knowledge of all distribution facilities performed at levels or below this grade.

PN271

The question I'm putting to you, that it would be expected that a person at that level would perform the task of picking, wouldn't they?‑‑‑No, that's not the way I read it.

PN272

Would they be expected to have knowledge in relation to the task of picking?‑‑‑Yes.

*** ARTHUR BREGIANNIS XXN MR JONES

PN273

Yes. Could I take you to clause 13 of the 1996 Award? Now, it says there, Mr Bregiannis:

PN274

An employee may direct an employee to carry out duties within the limits of that employee's skills, competence and training.

PN275

Now, the task of picking would be within the limits of your skill and competence, wouldn't it, Mr Bregiannis?

PN276

MS JARDINE: Perhaps before the witness answers that question, this goes back to an award relating to an agreement in 2002, so I think the time needs to be defined as to when Mr Jones is asking this question about.

PN277

THE COMMISSIONER: No, I reject that. He's asking him about what that sentence means. You can make submissions about what I should make of that. You can answer the question, Mr Bregiannis.

PN278

THE WITNESS: Yes, sure. So could you repeat the question, please?

PN279

MR JONES: The question I'm putting to you is, now the task of picking would be within the limits of your skill and competence, wouldn't it, Mr Bregiannis?‑‑‑It depends how many cartons are you asking to pick per hour.

PN280

All right. So if I asked you to preform the task of picking five cartons in an hour, is that within your skill and competence, to be able to perform that task?‑‑‑Yes, it is.

PN281

If I asked you to perform it a hundred times in an hour, is that within your skill and competence?‑‑‑Yes.

PN282

Thank you. Therefore, you would have to agree with me that the employer can direct you to carry out the duty of picking, wouldn't you?‑‑‑I'm sorry, I don't - - -

PN283

You've agreed with me that the task of picking falls within your competence and your skill, so therefore you would have to agree with me that the employer could give you a reasonable lawful direction to carry out that task?‑‑‑Well, I don't agree with you because that is why we are here today, to challenge that.

PN284

Returning to the classification descriptor, at 18.2.3?‑‑‑18.2.3?

*** ARTHUR BREGIANNIS XXN MR JONES

PN285

18.2.3?‑‑‑Yes.

PN286

Now, this classification descriptor doesn't express a percentage or a specific amount of time that an employee is to allocate to performing a particular task or duty, does it?‑‑‑For a particular task or duty? No.

PN287

And it does not mandate, for example, that a distribution facility worker grade 3 shall perform operation of a truck with a capacity in excess of 6 tonnes 10 per cent of the time or VDU operation 50 per cent of the time, does it?‑‑‑No.

PN288

Nor does the classification descriptor express that one task or duty prevails over another, that's correct, isn't it?‑‑‑No.

PN289

If I could take you to the duties term of your contract again, Mr Bregiannis, which is BM82, page 1153, and it says there, Mr Bregiannis:

PN290

Your duties were previously outlined during your interview, however duties and responsibilities of employees are regularly assessed by Westgate Logistics and may change from time to time.

PN291

Now, it is clear, from this section of the duties term, that you agreed that your duties and responsibilities could be changed by Westgate, from time to time, that's correct, isn't it?‑‑‑That's what it says there, yes.

PN292

And you would therefore agree with me that this term aligns with the plain reading of the relevant classification level descriptors, that's correct, isn't it?‑‑‑Where does it say that?

PN293

Well, I put to you before that the classification descriptors don't determine how much one task prevails over another, in percentage terms, or how much time one has to spend doing one task or another, does it? So, therefore, what I'm putting to you, this duties term is roughly saying the same thing?‑‑‑Okay. So are you telling me that even though I'm hired as a team leader that it's okay that I act as a team leader for 10 per cent of the time, is that what you're saying?

PN294

Mr Bregiannis - - -

*** ARTHUR BREGIANNIS XXN MR JONES

PN295

THE COMMISSIONER: I'd prefer if you answered the question rather than asking questions, Mr Bregiannis, and I'll only warn you about that once?‑‑‑Okay, thank you.

PN296

MR JONES: So the question I put to you is that the duties term in this contract does not specify the amount of time one has to performing one particular task over another, or the type of task that one has to perform?‑‑‑No, it doesn't say that, no.

PN297

Now, at paragraph 3 of your witness statement, which is on page 9 if that is helpful, you say:

PN298

My current role is an inventory clerk, which I have held since about 2012. I moved to that role as part of a resolution of a dispute I had with Linfox.

PN299

Now, in relation to that, and I want to focus specifically on, "My currently role is an inventory clerk," if I could get you to go to paragraph 244 of Mr Milburn's witness statement, which is page 263, that's in the same book that you were reading BM82, your contract?‑‑‑So which - - -

PN300

Sorry, we'll get there. That's in a book that has tabulated witness statements.

PN301

THE COMMISSIONER: What BM is it?

PN302

MR JONES: Page 263. There's a book, the first tab says, "Outline of Submissions, dated 11 May 2018."

PN303

THE COMMISSIONER: All right.

PN304

THE WITNESS: Which page?

PN305

MR JONES: 263.

PN306

THE COMMISSIONER: It just might be not a bad time to do this, the numbering is separate in each of the four books, is that right?

PN307

MR JONES: The numbering is, I think, Commissioner, separate for the witness statement books, however the numbering in relation to the exhibits is consecutive from BM1 to BM83.

*** ARTHUR BREGIANNIS XXN MR JONES

PN308

THE COMMISSIONER: All right.

PN309

MR JONES: So the only difference in numbering is the book that contains the witness statements and the submissions, the exhibits are consecutive.

PN310

THE COMMISSIONER: All right.

PN311

MR JONES: Mr Bregiannis, at paragraph 244 Mr Milburn says that, and it's the last sentence that you are currently classified under the 2014 NEA, which is the current enterprise agreement that covers your work, as a distribution facility employee level 3, do you see that there?‑‑‑Yes, I do.

PN312

Now, that's your correct classification designation, isn't it, Mr Bregiannis?‑‑‑Currently, yes.

PN313

Yes. Not inventory clerk, that's correct?‑‑‑In the statement - no, it doesn't say inventory clerk, no. Not here.

PN314

No. The question I'm putting to you is, your proper classification designation is that of a distribution facility employee level 3, that's correct, isn't it?‑‑‑Yes.

PN315

Thank you. Now, at paragraph 5 of your witness statement, Mr Bregiannis, you say:

PN316

I recall that in 2013 there was a dispute between the applicants who are forklift drivers and Linfox.

PN317

THE COMMISSIONER: So that's on page 9, page 9 of that folder?‑‑‑Okay.

PN318

MR JONES: Yes, sorry, Mr Bregiannis, page 9?‑‑‑Yes.

PN319

I'll go on to say:

PN320

This issue was that although Linfox recognised that each of the forklift drivers were to drive forklifts as part of their ordinary duties there was a question about what happened when they were doing overtime.

*** ARTHUR BREGIANNIS XXN MR JONES

PN321

Now, in paragraph 5 does this alleged recognition by Linfox that each of the forklift drivers were to drive forklifts as part of their ordinary duties apply to all of the applicant forklift drivers, or just the applicant forklift drivers on afternoon shift?‑‑‑This particular dispute was for afternoon shift.

PN322

All right. So you where you say in paragraph 5 that each of the forklift drivers were to drive forklifts as part of their ordinary duties, you mean only in relation to those forklift drivers who are applicants on the afternoon shift?‑‑‑Yes.

PN323

Right. Could you, Mr Bregiannis, specify, and it might be helpful if I take you to paragraph 20 of the respondent's submissions, which is in that same folder page 226, do you have that in front of you?‑‑‑I've got page 226 in front of me.

PN324

226, please?‑‑‑Page 226, yes.

PN325

As you can see there, Mr Bregiannis, the applicants are set out in name, and where it starts, "The 31 applicants are," and you can see the names and initials of each of the applicants there, can you see that?‑‑‑Yes, are you talking about clause 20 here?

PN326

Yes, I'm talking about paragraph 20?‑‑‑Paragraph 20.

PN327

Yes. Now, you just said to me that it only applies to the forklift drivers on afternoon shift, can you please identify who they are, from that list?‑‑‑Alan Paull, Ante Buble, Christopher Speed, I need to make a distinction here, Ender Dogu is on afternoon shift, but he's in inventory.

PN328

Sorry, he's a?‑‑‑He's in inventory.

PN329

So he's not one of the forklift drivers you're talking about?‑‑‑No. Correct, but you've asked me a question, afternoon shift, and forklift drivers, so I just wanted to make a distinction there.

PN330

The question I put to you was, forklift drivers on afternoon shift, in relation to your paragraph 5?‑‑‑Okay, I understand. Okay.

PN331

So we've got Alan Paull, Ante Buble, I hope I'm saying that correct?‑‑‑Yes.

*** ARTHUR BREGIANNIS XXN MR JONES

PN332

I think you said Christopher Speed?‑‑‑Yes. Ian King, Kim San Bui, Loc Tran, Mario D'Andrea, Matko Ilicic, Stephen Peterson, Thanh Vo, they're the ones on afternoon shift.

PN333

So out of 31, Mr Bregiannis, do you agree with me that you have identified 10 of those applicants who are forklift drivers on afternoon shift that you say clause 5 relates to, sorry, paragraph 5 of your witness statement relates to?‑‑‑Ten, I think there's nine here, hang on. I think there's nine there.

PN334

I might just go through that quickly with you. Alan Paull, yes?‑‑‑Yes.

PN335

Ante Buble?‑‑‑Yes.

PN336

Christopher Speed?‑‑‑Yes.

PN337

Ian King?‑‑‑Yes.

PN338

Kim San Bui?‑‑‑Yes.

PN339

Loc Tran, or Loc Tran?‑‑‑Yes.

PN340

Mario?‑‑‑Yes.

PN341

Matko?‑‑‑Yes.

PN342

Steve Peterson?‑‑‑Yes.

PN343

Was that it, Mr Bregiannis?‑‑‑There was Thanh Vo as well.

PN344

Ten?‑‑‑Thanh Vo, so there is 10, yes.

PN345

There is 10, thank you?‑‑‑There is 10.

*** ARTHUR BREGIANNIS XXN MR JONES

PN346

I wasn't sure if it was my counting. Thank you, Mr Bregiannis. So on that basis you say that Linfox recognised that the applicant forklift drivers that you just named, 10 out of 31, were to perform this task, the forklift driving task, and no other duty during their ordinary hours, is that correct?‑‑‑Correct.

PN347

Mr Bregiannis, could this small group, these 10 applicants, perform other tasks during ordinary hours, if it was their decision to do so?‑‑‑Could they perform?

PN348

Yes?‑‑‑If it was their decision to do so?

PN349

Yes?‑‑‑If they wanted to, if they wanted to volunteer, yes.

PN350

If they wanted to?‑‑‑Yes.

PN351

So it was discretionary?‑‑‑If they wanted to, but I'm not aware that any of them did.

PN352

So if they wanted to they could perform the task of picking, is that correct?‑‑‑If they wanted to, yes.

PN353

Therefore are you saying that unless these 10 applicants agreed to perform other tasks, including the task of picking, Linfox could not direct them to do so, is that what you're saying?‑‑‑They did not direct them to do so, Linfox did not direct them to do so, or they - yes, they didn't. They did not.

PN354

All right. What about the other 21 applicants to this proceeding, what can they do or can't do?‑‑‑Well, I would imagine it would be the same, but they're on day shift.

PN355

You imagine it would be the same?‑‑‑Well, yes.

PN356

But you're not sure?‑‑‑They were on day shift, so I'm not sure what they were actually doing on day shift.

PN357

Mr Bregiannis, would you agree with me that paragraphs 5 to 20, and you might need to look at this yourself, of your witness statement relate to the years 2013 and 2014 and no other year?‑‑‑Hang on, which paragraphs are you relating to? To my statement or - - -

PN358

Yes, your witness statement. In particular, paragraphs 5 to 20?‑‑‑Sorry, from five onwards?

*** ARTHUR BREGIANNIS XXN MR JONES

PN359

Yes, between paragraph 5 to 20 and every paragraph in between. The question I'm putting to you, would you agree that they relate to the years 2013 and 2014, approximately a period of two years?‑‑‑Particular incidences do relate to during that time period but there's also one statement in here that would relate to the span of years even before that.

PN360

Mr Bregiannis, the question I put to you was that paragraphs 5 to 20, do they relate to the years 2013 and 2014?

PN361

MS JARDINE: He's responded to that question.

PN362

MR JONES: Well, I'm happy to move on, that's fine?‑‑‑Well, there's a lot of information here.

PN363

I'm happy to move on, Mr Bregiannis.

PN364

THE COMMISSIONER: Well, you asked him the question. It does cover a bit of the statement. I think the better course is that the witness gets a chance to look at paragraphs 5 to 20 and answer the question.

PN365

MR JONES: Thank you.

PN366

THE COMMISSIONER: If you're feeling rushed, Mr Bregiannis.

PN367

MR JONES: There are specific dates here on these clauses, I mean on these paragraphs.

PN368

THE COMMISSIONER: Take a chance to look through paragraphs 5 to 20 and then just answer the question?‑‑‑Sure. Okay. In paragraph 5 what it reads is, "I recall that in 2013," so I am relating to a specific time period there, "There was as dispute between the applicants who are forklift drivers and Linfox." Now, the next sentence:

PN369

This issue was that over Linfox recognised that each of the forklift drivers were to drive forklifts.

*** ARTHUR BREGIANNIS XXN MR JONES

PN370

That does apply to that time period, but it also applies to the previous time period as well, from there, from when they first started at Westgate. So when Linfox took over they were recognised even then, excluding, of course, that it was in dispute.

PN371

MR JONES: So, Mr Bregiannis, you would agree with me that the dispute has been going on for longer than two years, would you agree with that?

PN372

MS JARDINE: What dispute are you talking about?

PN373

MR JONES: The dispute, which is the fundamental point of this proceeding, Mr Bregiannis, that you say that the applicants do not perform - there is an industrial custom practice the applicants do not perform the task of picking during their ordinary hours?‑‑‑Yes.

PN374

In fact, the dispute started in late 2007, didn't it, Mr Bregiannis?‑‑‑Did it? It probably did, yes, I don't know.

PN375

Not long after Linfox acquired Westgate, in September 2007?‑‑‑Well, I wasn't a union delegate then.

PN376

All right. So let's, if I could take you through a brief history of this dispute, based entirely on the witness statements of the applicants in this proceeding, and I'll take you through that in chronological order. Could I take you to page 210, paragraph 9 of Mr Bailey's witness statement, do you have that in front of you?‑‑‑Yes.

PN377

Mr Bailey says:

PN378

I recall that around late 2007, early 2008, after our employment had moved to Linfox, I was called to the office of Mr Steve Bartsakis(?), inventory manager, Mr Bartsakis said Linfox wanted me to do picking duties. I said, "No, I have a letter of offer as an inventory clerk."

PN379

Do you see that?‑‑‑Yes.

PN380

If I can now take you to page 207, in particular paragraph 7?‑‑‑Yes.

PN381

This is Mr Carroll:

*** ARTHUR BREGIANNIS XXN MR JONES

PN382

I recall that in about 2008 the Linfox managers, Mr Steve Bartsakis, tried to direct the Westgate forklift drivers to also do picking duties, this was disputed.

PN383

Do you see that?‑‑‑Yes.

PN384

Could I take you to page 219, paragraph 5, Steve Peterson's witness statement, do you see that?‑‑‑Yes.

PN385

In about 2008 I recall that not long after we were transferred to Linfox, Linfox tried to get us, being the Westgate permanent employees, including the applicants, to do picking, but we refused.

PN386

?‑‑‑Yes.

PN387

Could I take you to page 218, paragraph 6, which is the witness statement of Peter Whitney:

PN388

I remember that in about 2010 Mr Tom Tye(?) the then general manger of Linfox, tried to change the situation so that Westgate employees could be required to do other duties during their ordinary time of work. The TWU opposed that change. The matter was raised as an industrial dispute and went to the Commission.

PN389

Do you see that?‑‑‑Yes.

PN390

Can I take you to page 10, now this is your witness statement, at paragraph AC(i), do you have that in front of you?‑‑‑Yes.

PN391

In this email I quote Bissett C from 2011, when the then DC manager, Mr Tom Tye had tried to introduce pick plus 1 for employees went before the Commission back in 2011.

PN392

Do you see that?‑‑‑Yes.

PN393

And also - sorry, could I take you to page 219 again, paragraph 6, this is, again, the witness statement of Steve Peterson, do you have that?‑‑‑Yes.

*** ARTHUR BREGIANNIS XXN MR JONES

PN394

I remember this issue arose again in about 2011 or 2012, when Mr Tom Tye, the then general manager tried to get us to pick. This matter ended up in the Commission but Linfox withdrew after the conciliation.

PN395

Do you see that?‑‑‑Yes.

PN396

Could I take you to page 201, Luke McCrone witness statement, paragraph 3, do you have that?‑‑‑Yes.

PN397

In about 2010 I recall that Mr Tom Tye, the then general manager of Linfox RDC, commenced action in the Commission trying to get Westgate permanent forklift drivers, being some of the applicants, to perform picking duties, the TWU opposed this application.

PN398

Do you see that, Mr Bregiannis?‑‑‑In paragraph 2?

PN399

Paragraph 3?‑‑‑Three?

PN400

That I just read out?‑‑‑Paragraph 3?

PN401

Yes?‑‑‑Yes, I do see that.

PN402

Could I take you to page 210, paragraph 6, the witness statement of Mel Bailey, do you have that?‑‑‑Yes.

PN403

On 31 January 2013 I attended a consultative meeting with Linfox, as the TWU delegate. At some stage I recall that the issue of rotating Linfox permanent forklift drivers, including those of the applicants who were forklift drivers, into other duties was raised. The TWU stated that as per the current arrangements those forklift drivers could not be rotated. If Linfox is unhappy with this then they should utilise the dispute resolution procedure. Linfox took no further action about this issue.

PN404

Do you see that?‑‑‑Yes, I see that.

PN405

Could I take you to page 9 again, which is your witness statement, at paragraph 5?‑‑‑Mm hm.

*** ARTHUR BREGIANNIS XXN MR JONES

PN406

I recall in 2013 there was a dispute between the applicants who were forklift drivers for Linfox. The issue was that although Linfox recognised that each of the forklift drivers were to drive forklifts as part of their ordinary duties, there was a question about what happened when they were doing overtime.

PN407

Do you see that?‑‑‑Yes.

PN408

Can I take you to page 202?

PN409

MS JARDINE: What number did you say?

PN410

MR JONES: Page 202, the witness statement of Luke McCrone, at paragraph 8, do you see that?‑‑‑Yes.

PN411

I won't read it all, but:

PN412

In 2013 and 2014 there was a dispute about what forklift drivers should do if they worked overtime.

PN413

Do you see that?‑‑‑Yes.

PN414

Could I take you to page 184, this is the witness statement of Frank Pisano, at paragraph 9, do you see that?‑‑‑Paragraph 9?

PN415

Paragraph 9?‑‑‑Yes, I see that.

PN416

Thank you.

PN417

In about October 2015 I was first directed by Linfox to attend a medical examination to see if I was fit to perform picking duties. I was also provided by Linfox with a roster, which rostered me to start picking duties in November 2015. I refused to attend the medical examination or do pick plus 1, this has been in dispute since that time.

PN418

Do you see that?‑‑‑Yes.

*** ARTHUR BREGIANNIS XXN MR JONES

PN419

Finally, could I take you to the following paragraph, which is the same page, 184, paragraph 10:

PN420

On 22 March 2018 I was again directed by Linfox to attend a medical examination to see if I was fit to perform picking duties. I refused to attend that medical examination and I have made application to the Commission instead.

PN421

Do you see that?‑‑‑Yes.

PN422

What I've set out there - I'll move on. Mr Bregiannis, the relevant instrument in place that covered your employment in 2013 was the Linfox Road Transport and Distribution Centres National Enterprise Agreement 2011, would you agree with that, or commonly known as the 2011 NEA?‑‑‑What year are we talking about?

PN423

In 2013?‑‑‑Yes.

PN424

Thank you. If I could have you return to paragraph 5 of your witness statement, which is on page 9?‑‑‑Mm hm.

PN425

Mr Bregiannis, who commenced that dispute that you refer to there?‑‑‑Okay, this dispute came from the floor. There were people complaining that they didn't have a chance to jump on forklifts on the weekend overtime.

PN426

So is it fair to say that an application, or should I put it this way, Mr Bregiannis, was an application made by the TWU or any employee or Linfox to the Fair Work Commission, in relation to this alleged dispute?‑‑‑For this particular one, no.

PN427

Mr Bregiannis, what do you mean by these words, which I shall read to you:

PN428

This issue was that although Linfox recognised that each of the forklift drivers were to drive forklifts as part of their ordinary duties, there was a question about what happened when they were doing overtime.

PN429

What does that mean?‑‑‑Weekend overtime.

PN430

Do you mean - if I put it to you do you mean that Linfox agreed that forklift drivers would only be driving forklifts during ordinary hours and nothing else, is that what it means?‑‑‑During that particular time?

*** ARTHUR BREGIANNIS XXN MR JONES

PN431

Yes?‑‑‑Linfox agreed that these forklift drivers would be driving forklifts during ordinary time and the weekend. So they would be put on in preference, prior to that.

PN432

Let me put the question to you again, sorry if I confused you, I'll put the question to you again. Are you saying that Linfox agreed that forklift drivers would only be driving forklifts during ordinary hours and nothing else, and doing no other task? Purely focusing here, Mr Bregiannis, on ordinary hours?‑‑‑Yes, I do agree to that.

PN433

Thank you. Could I take you to page 263, paragraph 246. Now, this is Brenden Milburn's witness statement and this is in response to your paragraph 5. Mr Milburn says:

PN434

I reject the assertion -

PN435

Sorry, Mr Bregiannis, do you have that in front of you?‑‑‑246?

PN436

Yes?‑‑‑Yes.

PN437

Mr Milburn says:

PN438

I reject the assertion that Linfox recognised that employees driving forklifts would only perform that task and no other warehousing tasks during ordinary or overtime hours. The TWU formally commenced the genesis of the current dispute in 2011, which I've referred to in paragraph 212 of this witness statement.

PN439

Mr Bregiannis, are there any industrial arrangements or settlements or local matter agreements that you are aware of that detail or codify the practice of not picking, in relation to the forklift drivers?‑‑‑There's - no.

PN440

Mr Bregiannis, are there any industrial arrangements or settlements or local matter agreements that detail or codify the practice of not picking during the ordinary hours of work, or in any hours of work, in relation to forklift drivers, or any other employee at the RDC?‑‑‑I need to ask a question, Commissioner.

PN441

THE COMMISSIONER: You can ask me a question, go on?‑‑‑Industrial arrangements, what's the definition of that?

*** ARTHUR BREGIANNIS XXN MR JONES

PN442

You don't understand what that means, yes. Can you break it down?

PN443

MR JONES: Industrial arrangement usually is an arrangement between the parties, be they the employer and the workers or a union, where it's recognised amongst the parties, somewhat in the fashion of a local matter agreement. It could be a memorandum of understanding, it could be contemporaneous notes or diarised notes, taken at some sort of meeting amongst the three, that all three parties, or two parties, or four parties, agree to?‑‑‑Right.

PN444

Is there any arrangement detailed in that fashion?‑‑‑There are - there were meetings and there were email responses to these meetings and there were agreements done on two aspects of this issue. One was for the weekend overtime and the other one was for the general roster.

PN445

So you say there were two industrial arrangements that were detailed and codified. How were they detailed and codified, did you say emails, Mr Bregiannis?‑‑‑Well, going by the definition that we just talked about, so some sort of an arrangement or an understanding, the understanding was that the applicants on the afternoon shift would be on their forklifts, doing forklift duties, from Monday to Friday. That was one of the disputes that we had that we came to an agreement. The second aspect of that was the overtime on the weekend where people were complaining that they didn't have a chance to get on the forklift, so the arrangement there, after a couple of meetings, was that they would have four of the contractors or applicants on a Saturday and four on the Sunday shift, which would then give a chance for other people to jump on the forklift and gain experience.

PN446

THE COMMISSIONER: Both of those agreements are reflected in emails, are they?‑‑‑Yes. Yes, they are. I believe so.

PN447

MR JONES: All right, so - - -

PN448

THE WITNESS: In meetings and emails, Commissioner.

PN449

MR JONES: Sorry, Commissioner, I didn't mean to interrupt.

PN450

THE COMMISSIONER: That's all right.

*** ARTHUR BREGIANNIS XXN MR JONES

PN451

MR JONES: All right, so, Mr Bregiannis, you say that these industrial arrangements or settlements are contained in emails, is that correct?‑‑‑There's record of it, yes.

PN452

In emails?‑‑‑Yes.

PN453

Mr Bregiannis, can I take you to paragraph 6 of your witness statement, page - do you have paragraph 6 in front of you?‑‑‑Yes.

PN454

Now, you say, in paragraph 6:

PN455

At this time Linfox recognised that there were three discrete groups at the RDC: (a) contractors, which means the employees on permanent contracts who had come from Westgate, this includes all the applicants, group 1. (b) the employees who came from Westgate who are not on employment contracts, that is, they were permanent, casual or labour hire and they came over from Westgate, group 2. (c) the employees who were Linfox hires who were engaged to work Tuesdays to Saturdays, group 3.

PN456

?‑‑‑I've amended 3, Mr Jones.

PN457

Yes, and you've made an amendment, sorry, Mr Bregiannis, to that?‑‑‑Yes. Commissioner, can I clarify, can I further clarify? In (b) the employees that came from Westgate who were not on employment contracts, that is, they were permanent casual or labour hire when they came over from Westgate, these people did become permanent employees by the time they came over to Linfox. So the people that were within the roster were permanent employees.

PN458

It might help if I - I'll ask you some questions about that, it might help to make it clear for me, because I'm not quite clear at this point, but I'll ask you some questions to that. So, Mr Bregiannis, in paragraph 6 and with respect to group 1, what do you mean by "employees on permanent contracts who had come from Westgate"?‑‑‑These are employees that were offered positions. So when they started work at Westgate they were actually given positions as forklift drivers.

PN459

I'll come back to that. Now, this includes all the applicants, you're referring to all the applicants?‑‑‑Well, not all the applicants were actually hired as forklift drivers, I believe some were hired as clerks and I believe one was hired as a PTO.

*** ARTHUR BREGIANNIS XXN MR JONES

PN460

All right. So where you say, "Employees on permanent contracts who had come from Westgate," do you agree with me you mean those who had explicit definitions, for example, forklift driver, that's the group you're talking about, or inventory clerk or, in your case, pallet truck operator team leader, is that the group you're referring to?‑‑‑In this statement I'm referring to the forklift drivers.

PN461

Just forklift drivers, thank you. Could I refer you to, now I'm taking you to the exhibits booklet on page 289, BM10, do you have that in front of you?‑‑‑Yes.

PN462

Now, this is an employment contract for Mr Alan Paull, would you agree with that?‑‑‑It looks like an employment contract for Alan Paull.

PN463

Thank you. Now, Mr Paull is one of the applicant's in this proceeding, isn't he?‑‑‑Yes.

PN464

You identified him earlier, Mr Bregiannis, didn't you, as one of the afternoon shift forklift drivers, that's correct?‑‑‑Yes.

PN465

Therefore with the response that you gave me to my earlier question, Mr Paull can perform the tasks of forklift operation and general warehousing, that's correct, isn't it?‑‑‑Well, that's what it says here, that's correct, yes.

PN466

Well, yes. So he can perform forklift driving and general warehousing tasks, correct?‑‑‑Well, that's what it says here, yes.

PN467

I'm asking you a question, is that correct?‑‑‑Yes.

PN468

Thank you. Now, again, and based on the responses given to me, general warehousing must include various tasks, you'd agree?‑‑‑I'm really not sure how to answer that.

PN469

Well, yes or not, or I don't know?‑‑‑I don't know because what it says here it says forklift operator and then it says general warehousing. I don't know what they mean by general warehousing, does that mean cleaning? I'm not really sure.

PN470

Well let's say do you think it might mean cleaning?‑‑‑It could.

PN471

Do you think it might mean picking?‑‑‑It could.

*** ARTHUR BREGIANNIS XXN MR JONES

PN472

It could. Now, you'd agree with me that the picking task is the most fundamental task of any warehouse, isn't it, Mr Bregiannis?‑‑‑I don't know what you mean by "fundamental". Are you saying that it's the most important task?

PN473

Well, would you agree with me that unless orders are picked deliveries cannot be made, would you agree with that?‑‑‑Yes, I would agree with that.

PN474

So it is a very important task in the warehousing environment, isn't it?‑‑‑Yes.

PN475

Can I refer you to page 413? That's another exhibit, BM22, Mr Bregiannis. Do you have that in front of you?‑‑‑BM22?

PN476

BM22, page 413?‑‑‑Yes.

PN477

Now, Mr Dogu is one of the applicants in this proceeding, isn't he?‑‑‑Yes.

PN478

Therefore, by your admissions, Mr Dogu can perform the tasks of a distribution facility worker grade 1, that's correct, isn't it?‑‑‑That's what it says here, yes.

PN479

Can I take you to the '96 Award again, Mr Bregiannis? Do you have a copy of that with you? It's a loose document, Mr Bregiannis, a standalone document?‑‑‑Yes.

PN480

Do you have that in front of you?‑‑‑Yes. The '96?

PN481

Clause 18.2.1 where it's titled, "Distribution facilities worker grade 1," do you have that?‑‑‑Yes.

PN482

So if I could take you to section 6 of that classification, where it says:

PN483

Must be competent to perform one or more of the following tasks, duties or a combination thereof.

PN484

The first dot point says:

*** ARTHUR BREGIANNIS XXN MR JONES

PN485

Storing and packing of goods and materials in accordance with appropriate procedures and regulation. Preparation and receipt of appropriate documentation, including (indistinct) supplies, allocating and retrieving goods from specific warehouse areas, amongst other things.

PN486

So Mr Dogu could perform the task of picking, couldn't he?

PN487

MS JARDINE: I'm not sure, Mr Jones has read out six items here and then said somehow that leads to a - taken a lot of time reading out these items and then somehow that leads to say Mr Dogu can perform the task of picking. I'm just wondering, this is taking an inordinate amount of time, picking is not even listed in that list of items. It's clear what the - - -

PN488

THE COMMISSIONER: What's the objection?

PN489

MS JARDINE: Sorry?

PN490

THE COMMISSIONER: What's the objection?

PN491

MS JARDINE: The objection is it's just not relevant. We're taking a lot of time to get not very far and there's another witness who is going to be giving detailed evidence about what each person has or hasn't done.

PN492

THE COMMISSIONER: Well, that's a matter to deal with at (indistinct) I don't understanding what the basis of the objection is, he's entitled to ask questions about the evidence the applicant has given. That's what I understand he's doing, I reject the objection. Thanks.

PN493

MR JONES: Perhaps if I refine that question, Mr Bregiannis. Would you agree with me, in relation to the classification designation of distribution facilities worker grade 1, that the picking task would arise from allocating and retrieving goods from specific warehouse areas?‑‑‑That can be attributed to picking, among many tasks, yes.

PN494

Thank you. Could I refer you to page 447, BM24? Do you have that in front of you, Mr Bregiannis?‑‑‑Yes.

PN495

Now, Mr Sefou, I hope I've got that pronunciation right, is one of the applicants in this proceeding, isn't he?‑‑‑Yes.

*** ARTHUR BREGIANNIS XXN MR JONES

PN496

Now, surely you would agree with me that Mr Sefou can perform the tasks of a picker?‑‑‑According to - sorry, according to what, according to his contract?

PN497

To offer you the position of picker grade 1.

PN498

?‑‑‑Well, that's what it says here, yes.

PN499

So he, by your logic, should be able to perform the task of picking, that's correct?‑‑‑Well, that's what it says here, yes.

PN500

Could I take you to page 515, BM33, do you have that in front of you, Mr Bregiannis?‑‑‑Yes.

PN501

Now, Mr Chau is one of the applicants in this proceeding, isn't he?‑‑‑Yes.

PN502

Again, you would have to agree with me that Mr Chau can perform the tasks assigned to him as an order picker grade 1, including the task of picking?‑‑‑At the time of his contract, yes.

PN503

Mr Bregiannis, could I take you to paragraph 6(b) of your witness statement?‑‑‑Yes.

PN504

Mr Bregiannis, what do you mean by the employees who came from Westgate who were not on employment contracts, that is, they were permanent casual or labour hire, when they came over from Westgate, group 2, what do you mean by that?‑‑‑These were people who were not hired as forklift drivers.

PN505

So what we just went through, they weren't designated or titled or labelled forklift driver or inventory clerk or order picker, that's what you mean by that?‑‑‑It wasn't on their employment contracts, yes.

PN506

So what did it say on their employment contracts that separated them from those who were labelled forklift driver?‑‑‑Well, it would have said either PTO operator or picker or warehouse hand. But a lot of these people were performing the forklift function, Monday to Friday usually, on afternoon shift.

*** ARTHUR BREGIANNIS XXN MR JONES

PN507

I understand. Thank you, Mr Bregiannis, I understand. You've clarified the meaning of employment contract, as you see it. Now, returning to paragraph 6 of your witness statement, sorry, I was on paragraph 6. With respect to paragraph 6, in its entirety, you say that Linfox recognised three discrete groups, that's correct, isn't it?‑‑‑Yes.

PN508

Linfox recognised?‑‑‑Yes.

PN509

Are there any industrial arrangements or settlements or local matter agreements that you're aware of that detail or codify the recognition of these three groups by Linfox?‑‑‑There are the results of meetings with employees and management which actually did recognise these three groups. There were discussions between me and Peter Bennett that recognised these three groups, and it did eventually change and become three groups. And they - - -

PN510

So - sorry, I didn't mean to cut you off. So you're saying that the recognition of these three groups, by Linfox, arises from emails?‑‑‑Yes, and meetings.

PN511

Meetings, what?‑‑‑We had meetings as to how the rostering arrangement would come about or how the rotation would come about.

PN512

Were there minutes of these meetings? The question I put to you, Mr Bregiannis, I'm sorry if I didn't put it clearly enough was, were there any arrangements, settlements, local matters that detail or codifies? Was there some sort of formal documentation?‑‑‑There were emails and the resulting tracker that came out about it.

PN513

And your resulting tracker?‑‑‑Yes.

PN514

THE COMMISSIONER: What's a tracker?‑‑‑A tracker, it was essentially an Excel spreadsheet where Andrew Angeles, who was in charge of the forklift drivers, would actually rotate people, he would rotate the backups and he used that for about - I don't know about a year and a half, two years I believe he used it.

PN515

All right.

PN516

MR JONES: Mr Bregiannis, if I could turn your attention to paragraph 7 of your witness statement, now you say:

*** ARTHUR BREGIANNIS XXN MR JONES

PN517

After some heated communications between the TWU and management it was agreed that during overtime four forklift drivers from group 1 who wanted to do weekend overtime would be rostered on to work on a forklift each of Saturday and Sunday overtime and if more people from group 1 wanted to do overtime then they would have to do picking. There was no question by Linfox that any of group 1 would ever be required to do picking or any other duty except forklift as part of their duties during ordinary hours of work.

PN518

Mr Bregiannis, who, from the TWU, had these alleged heated communications with management?‑‑‑Commissioner, I need to just ask for a further definition, who from the TWU? Does that imply delegates as well, or just organisers?

PN519

Mr Bregiannis, your witness statements says, your witness statement, "Between the TWU and management." The question I'm simply putting to you is, who from the TWU?‑‑‑Okay. It was myself, as a delegate, and, I believe, Luke McCrone, as an organiser.

PN520

In what form did these heated communications take place? What was the communication form, was it verbal, email, minuted?‑‑‑I think there was a meeting and the results were emails. There was an agreement and then there were emails. There were quite a number of emails because it wasn't being followed properly.

PN521

What wasn't being followed properly?‑‑‑The arrangement of the four on Saturday and the four on Sunday.

PN522

Whose arrangement was this?‑‑‑It was our arrangement, it was an agreed arrangement.

PN523

Between whom?‑‑‑Between the workers. Between the contractors and the workers and myself and Luke and management.

PN524

Mr Bregiannis, what do you mean when you say:

PN525

There was no question by Linfox that any of group 1 would ever be required to do picking, or any other duty except forklift, as part of their duties during ordinary hours of work.

PN526

?‑‑‑Because we came to that arrangement, for them to actually put these restrictions only on the overtime, on the weekend, by de facto and by the previous practices, the contractors were untouched. They were not required to do any picking during the week.

PN527

All right. Could I take you to page 88 of your witness statement?‑‑‑Eighty?

*** ARTHUR BREGIANNIS XXN MR JONES

PN528

Eighty-eight. Do you have that in front of you, Mr Bregiannis?‑‑‑Yes, I do.

PN529

Now, I want you to look at the top left-hand corner there, and this is your tracker spreadsheet that you referred to before?‑‑‑Yes.

PN530

You have a heading there titled "Contract forkies," correct?‑‑‑Correct.

PN531

And you have a list of names there, commencing with Ante Buble at number 1 and finishing with Steve Peterson at number 11, is that correct?‑‑‑Yes.

PN532

Now, are these the forklift drivers in your group 1 that you are referring to?‑‑‑Yes, these are some of the forklift drivers in group 1 that I'm referring to.

PN533

Some of them but not all?‑‑‑Yes.

PN534

Who's missing, Mr Bregiannis?‑‑‑Ender Dogu is further down, Ronald Hitchcock - - -

PN535

THE COMMISSIONER: Who was that? Sorry, I missed that?‑‑‑I'm sorry, Commissioner, Ender Dogu is - hang on, he's, by definition, inventory, so if the question was for forklift - are you referring - I'm sorry, are you referring to forklift drivers or applicants?

PN536

MR JONES: Forklift drivers?‑‑‑Okay.

PN537

You may recall, and the transcript will show, Mr Bregiannis, that we agreed that there were 10 forklift drivers, afternoon shift forklift drivers, do you recall that discussion, exchange that we had?‑‑‑Yes.

PN538

Perhaps it might help if I go through the names of the 10. So we've got Alan Paull, he's there. Ante Buble, he's there. Christopher Speed is there. Loc Tran, he's there. Mario D'Andrea, where is he, Mr Bregiannis?‑‑‑He's at number 44.

PN539

What does that mean, "yard" next to him?‑‑‑Okay, I'll explain, if I may?

*** ARTHUR BREGIANNIS XXN MR JONES

PN540

Yes, please, I'm asking you to?‑‑‑Okay. So essentially this was - this tracker was functional so, in other words, the contract forkies on the top were the ones that were working within the warehouse. They were the ones that were doing the let downs and the put aways, there were two tasks. The second group were the people that were getting rotated, so to speak. However, from a management perspective, from Andrew Angeles' perspective, what he wanted to know, he wanted to organise these guys first, right, the people that were in the top. That's why, if you look at the fourth column where you see all these Cs, right? So Ante Buble is C, that stands for contract. Brett Sashee(?) is a C, that stands for contract. As you move down you've got Christopher Speed, okay, he's a clerk, at the time he was a clerk. You've got Alan Paull, he was in receivals.

PN541

Sorry, have you finished?‑‑‑Yes.

PN542

So the question I put to you is, why Mario D'Andrea, you've got him as yard, what's he doing there?‑‑‑Because he's not really - okay, he was on a forklift but he was doing yard work, which was outside, which was with pallets.

PN543

Now, I think you mentioned a name, and I apologise if I've got this wrong, is it Andrew Angeles?‑‑‑Yes.

PN544

He's a weekly paid employee, isn't he?‑‑‑Yes, currently he is and he was. Yes, he was.

PN545

He's not management, is he?‑‑‑Definition of management, well, at the time he was in charge of rotating these people and rostering them.

PN546

He wasn't a monthly paid employee?‑‑‑No, I don't believe he was, no.

PN547

Mr Bregiannis, what I might do at this point is hand up to you some roster histories, and we have copies, I've only go the one copy, but I can point to, Commissioner, as I said before, the names that I would like to look at, in relation to those roster histories, which I believe have been stabled and separated.

PN548

THE COMMISSIONER: All right.

PN549

MS JARDINE: I have not seen any of those documents and I need to see them first.

PN550

MR JONES: Perhaps, Commissioner, if I was to read out the names and then - - -

*** ARTHUR BREGIANNIS XXN MR JONES

PN551

MS JARDINE: I want to see the documents.

PN552

THE COMMISSIONER: How much longer are you intending to be with the witness?

PN553

MR JONES: Commissioner, at least another couple of hours.

PN554

THE COMMISSIONER: What we might do, it might be a convenient time to break, it's quarter to 1, we'll resume at 2. During the break you can get copies of these documents.

PN555

MR JONES: All right.

PN556

THE COMMISSIONER: All right?

PN557

MR JONES: Yes, thank you, Commissioner.

PN558

THE COMMISSIONER: Any issue with breaking now, Ms Jardine?

PN559

MS JARDINE: Yes. Commissioner, given what's written on these documents, and it relates to material that I really need to get instructions from the witnesses in the witness box about this. I've not seen the documents before, as a matter of fairness they should have been produced and they relate to the questions that are being asked of this witness. I need to put these particular document to - - -

PN560

THE COMMISSIONER: Where are the documents from, Mr Jones?

PN561

MR JONES: The documents come from the RDC itself and they set out - it was requested that I supply to the applicants the duties performed by the applicants, was one of the requests, and I've done so.

PN562

THE COMMISSIONER: So this is in the bundle of documents that were forwarded?

PN563

MR JONES: And they were forwarded to the Commission and Ms Jardine, or to the instructing solicitors.

*** ARTHUR BREGIANNIS XXN MR JONES

PN564

THE COMMISSIONER: Well, you've got them, you've had them.

PN565

MS JARDINE: A couple of days ago, as I said earlier.

PN566

THE COMMISSIONER: Well, this is not a situation where they've virtually just been handed to you, which is what I thought that you were saying, you've had them for a couple of days. Copies will be made available and you can look at them further, if you want to, during the break. The lights seem to have returned and - - -

PN567

MS JARDINE: So I'm seeking permission to ask this witness about these documents.

PN568

THE COMMISSIONER: What do you want to say about that, Mr Jones?

PN569

MR JONES: I don't have a problem with that, Commissioner.

PN570

THE COMMISSIONER: Permission is granted. We'll resume at 2 pm.

<THE WITNESS WITHDREW [12.45 PM]

LUNCHEON ADJOURNMENT [12.45 PM]

RESUMED [2.02 PM]

PN571

MS JARDINE: I've spoken to Mr Jones and Mr Luke McCrone has to meet other commitments, and Mr Jones has kindly agreed that we can interpose Luke McCrone has a witness before we complete Arthur Bregiannis.

PN572

THE COMMISSIONER: All right.

PN573

THE ASSOCIATE: Could you please state your full name and address?

PN574

MR McCRONE: Luke Brendan McCrone, (address supplied).

<LUKE BRENDAN McCRONE, AFFIRMED [2.03 PM]

EXAMINATION-IN-CHIEF BY MS JARDINE [2.03 PM]

*** LUKE BRENDAN McCRONE XN MS JARDINE

PN575

THE COMMISSIONER: Thanks, Mr McCrone.

PN576

MS JARDINE: Mr McCrone, can you tell the Commission your full name and your address, please?‑‑‑Luke Brendan McCrone and (address supplied).

PN577

What's your current occupation?‑‑‑Truck driver.

PN578

How long have you been doing that?‑‑‑About seven months.

PN579

What did you do before that?‑‑‑I was an organiser with the Transport Workers' Union.

PN580

How long were you in that role?‑‑‑About eight and a half years.

PN581

Were you working at the Linfox Regional Distribution Centre?‑‑‑The RDC was one of the sites I had responsibility for, yes.

PN582

You've made two witness statements in these proceedings?‑‑‑That's right.

PN583

Have you read those recently?‑‑‑I have.

PN584

Is there any changes you want to make to either of them?‑‑‑No.

PN585

Otherwise are contents in both of those witness statements true and collect?‑‑‑To the best of my recollection, the dates, I'm not, I don't have any notes or anything to work off but those dates are as best as I can recall.

PN586

I seek to tender each of those witness statements, Commissioner.

PN587

THE COMMISSIONER: Assuming no objections that will be A3, A4 for the witness statement of Luke McCrone, nine paragraphs, dated 8 May and the further witness statement of Mr McCrone with three paragraphs, dated 7 June, will be A5.

EXHIBIT #A4 WITNESS STATEMENT OF LUKE McCRONE DATED 08/05/2018

EXHIBIT #A5 FURTHER WITNESS STATEMENT OF LUKE McCRONE DATED 07/06/2018

*** LUKE BRENDAN McCRONE XN MS JARDINE

PN588

MS JARDINE: Mr McCrone, if you could just look at your first witness statement, the attachment LM1, emails?‑‑‑Yes.

PN589

Halfway down the page there's an email from a Tom Tye to yourself, copied to various other people, on 4 June 2012?‑‑‑I see that.

PN590

Can you identify who Tom Tye is?‑‑‑Tom was the DC manager, I think, that would be his title, but he was the manager that I dealt with at the RDC until he left and went overseas.

PN591

Then George Katsifolis(?), who is he please?‑‑‑George was a junior industrial relations person within the business, I think.

PN592

At Linfox?‑‑‑At Linfox, yes.

PN593

All right. No further questions, thank you.

PN594

THE COMMISSIONER: Thank you. Mr Jones?

CROSS-EXAMINATION BY MR JONES [2.06 PM]

PN595

MR JONES: Thank you, Commissioner. Mr McCrone, you've said that you were a union officials for about eight and a half years?‑‑‑With the TWU, yes.

PN596

Were you a union official with the CFMEU prior to that?‑‑‑I was.

PN597

And how many years were you a union official for the CFMEU?‑‑‑About four years, I think.

PN598

So therefore you would say that you have approximately 12 and a half years of experience or employment as a union official?‑‑‑That's right.

PN599

Thank you. You've appeared in this Commission on numerous occasions, that's correct, isn't it?‑‑‑I have.

PN600

You have lodged numerous applications, on behalf of your members, over the years?‑‑‑Indeed I have.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN601

Including the applicants here today, that's correct, isn't it?‑‑‑That's correct.

PN602

Could I take you to paragraph 2 of your witness statement?‑‑‑Yes.

PN603

Now, you say, in paragraph 2 - - - ?‑‑‑Is this this first or second witness statement?

PN604

It might be helpful, Mr McCrone, and I apologise up front, but there are four books which you'll notice, to the left of you, I believe?‑‑‑I did see those, yes.

PN605

It would be helpful if I could refer you to the book which has the tabulated witness statements in there, and you'll see that your statement is located on page 201?‑‑‑Yes, thank you for that.

PN606

Thank you. Now, in paragraph 2 you say:

PN607

I started working at the Linfox RDC.

PN608

Now, you weren't an employee of Linfox?‑‑‑No, I certainly was not.

PN609

So you act in the capacity as a union official?‑‑‑I started performing work at the RDC is probably what I should have said, yes.

PN610

Now, in relation to paragraph 3 you say:

PN611

In about 2012 I recall that Tom Tye, the then general manager -

PN612

And I think you've cleared that up, he wasn't the general manager, was he?‑‑‑No. I'm not sure exactly of his title, operations manager, I'm not sure.

PN613

I think the transcript will show that you referred to him as DC manager, is that correct?‑‑‑Yes, but I'm not - that's what I recall his title to be.

PN614

Now, you allege that in 2012, and I'll read it out again, sorry:

*** LUKE BRENDAN McCRONE XXN MR JONES

PN615

The then general manager of Linfox, commenced action in the Commission trying to get Westgate permanent forklift drivers, being some of the applicants, to perform picking duties. The TWU opposed this application. This became part of an industrial dispute that went to the Commission. Now produced and marked LM1 is a copy of emails dated 25 May 2012 and 5 June 2012, when the TWU became aware of this issue.

PN616

?‑‑‑Yes.

PN617

Now, you allege, in 2012, that Linfox made an application to this Commission?‑‑‑Well, no, that's not correct. What I meant here in this statement was that Tom had instigated a dispute by attempting to get these guys off the forklift. So I would have made the F10 application, I believe.

PN618

All right. So you say that in 2012 that you made an application, is that the TWU made an application?‑‑‑Yes.

PN619

All right. You say that it became part of an industrial dispute that went to the Commission and you have produced LM1, which discusses when the TWU became aware of that issue, correct?‑‑‑That's the email, yes. Yes.

PN620

Now, with respect to that application that you say you lodged, do you recall a matter number or that might be bit difficult for you but I'm going to ask the question, do you recall a matter number in relation to that?‑‑‑No, I don't remember.

PN621

Do you recall when it was lodged, approximately, in 2010?‑‑‑No.

PN622

Let's go to LM1, if I could take you through that exhibit?‑‑‑Mm hm.

PN623

Now, does the emails in LM1 precede the application that you made, or after the application was made?‑‑‑I couldn't say for sure. I don't have access to any of my notes or emails or anything from my time at the TWU so I couldn't say for sure, but if you read the email chain that's been provided here it seems that the application would have been made after these emails. Although, having said that, my recollection is that the dispute that was lodged had a couple of matters in it, one was the correct payment for labour hire workers and the other was the issue of the contract forklift drivers, or the Westgate forklift drivers, whatever you want to call them. That's how I remember the dispute played out.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN624

Your witness statement, Mr McCrone, says:

PN625

Trying to get Westgate permanent forklift drivers to perform picking duties.

PN626

?‑‑‑Whereabouts is that, sorry?

PN627

Paragraph 3?‑‑‑Yes.

PN628

You say that Linfox commenced the action but now are you saying that the TWU commenced the action and the application and the substance of that application was trying to get Westgate permanent forklift drivers to perform picking duties, is that right?‑‑‑Well, I would say that Linfox instigated the dispute by trying to change a longstanding custom and practice whereby there are a group of employees that didn't pick. Linfox sought to change that and I would say that that's the genesis of the dispute, we didn't agitate that, that was something that the company had done. In an effort to resolve the dispute the TWU made an application, an F10 application to the Fair Work Commission.

PN629

If we look at LM1 and if we go to the first email in that chain?‑‑‑The one from me?

PN630

The first email is one from you, on Tuesday, 22 May 2012, do you see that?‑‑‑Yes.

PN631

Do you see that there?‑‑‑

PN632

G'day Tom, I understand - - -

PN633

Yes:

PN634

G'day Tom, I understand that the move to the new site must be a very time consuming activity for you, however, we have a number of outstanding issues that really must be addressed.

PN635

?‑‑‑Yes.

PN636

Issue 1 you say:

*** LUKE BRENDAN McCRONE XXN MR JONES

PN637

Labour hire. I cancelled the hearing in FWA on this issue in good faith after I was informed that you had a meeting scheduled for Monday, 14 May with one of the labour hire companies to try and sort this mess out. No one from the company has contacted me to explain the outcome of this meeting or the likely date our members can expect their entitlements. It is not, in my view, unreasonable for us to expect that they - that by no later than Friday of this week the company will be in a position to tell us the names of the employees who have money owed, details of how Linfox proposes to ensure these workers are paid, a date of when these workers will be paid.

PN638

Is there any relevance with what I've just read out to you, in relation to Linfox trying to get Westgate permanent forklift drivers to perform picking duties?‑‑‑No, not in regards to the labour hire question, no.

PN639

All right. Then you go on to say:

PN640

1. Employees converting from 1A to 2A, there appears to be a misunderstanding about the classification structure. I've been informed that these workers will not be promoted to grade 2 until they are competent at all grade 2 duties. This is incorrect, if an employee operates a forklift they would be grade 2 employees. Likewise, if an employee is a clerk they would be a grade 2 employee. There is no requirement that they are competent in both tasks to be grade 2. Having said that, the letters of offer and physical capacity notwithstanding, nothing stops the company directing a grade 2 employee undertaking training on other grade 2 functions, but they would be grade 2 whilst the training was being conducted. If you need clarity of our position give me a call. Cheers.

PN641

Once again, is there any relevance in that section of your email to the dispute that you're referring to?‑‑‑Yes, there is.

PN642

What is that relevance?‑‑‑So part of our argument to the company was that if they take a grade 1A picker and they put them on a forklift that that employee would be entitled to grade 2, for all purposes, whether or not they were driving a forklift or not. So our argument to the company was that not only did these guys have a contract that entitled them to remain on the forklift, but that by putting other workers, who didn't usually drive a forklift, onto a forklift in their place, they would be exposing themselves to having to pay those workers the higher rate at all times. So, essentially, we were saying it doesn't make any economic sense, all you're going to do is increase a whole group of employees from grade 1A to grade 2 and for what reason?

*** LUKE BRENDAN McCRONE XXN MR JONES

PN643

Mr McCrone, you titled that section as employees converting from 1A to 2?‑‑‑Yes.

PN644

The question I'm putting to you is what relevance does that have to the Westgate employee forklift drivers performing picking duties? It has no relevance, does it?‑‑‑No, it does. Because if you take a Westgate forklift driver off the forklift and put a grade 1A worker into the forklift in their place, which is what you would need to do, the forklift is not going to sit idle, that that employee who was now in the forklift would be entitled to an increase in wages across the board. So we said, all you're going to do is cost yourself money by making this change that you're proposing.

PN645

Mr McCrone, can you point that out to me, exactly where it talks about picking or Westgate employees?‑‑‑Well, that's what I mean where I say from grade 1A to 2. So if you take a picker, who is grade 1A and you stick them in a forklift, they're going from a grade 1A role to a grade 2 role.

PN646

You say:

PN647

I've been informed that these workers will not be promoted to grade 2 unless they are competent at all grade duties, this is incorrect. If an employee operates a forklift they would be grade 2 employees. Likewise, if an employee is a clerk they would be a grade 2 employee. There is no requirement that they are competent in both tasks to be a grade 2.

PN648

What relevance does that have to Westgate permanent employees, forklift drivers, being asked to perform picking duties?‑‑‑Well, as I say, if you were to take - - -

PN649

No, I'm asking you, what relevance that section of your email has to your dispute?

PN650

MS JARDINE: I objet to the question. This witness has already answered the question about how that's connected to what he's had to say and then to pick out an individual sentence and say, "What relevance does this individual sentence have?" when the sentence can only be read in the context of the entire paragraph, in my submission, is a very unfair question.

PN651

THE COMMISSIONER: Mr Jones?

*** LUKE BRENDAN McCRONE XXN MR JONES

PN652

MR JONES: Mr McCrone, I put it to you that there is no relevance in that section of your email to what you're referring to in paragraph 3 of your witness statement, do you agree with that?‑‑‑No, I don't. Most of the communication that was had between myself and the company, over disputes, was done over the phone or in a meeting convened on site, so you would need to look at this email in the context of conversations I've been having, a phone call I might have had, you know ring - - -

PN653

Mr McCrone, sorry to interrupt, but I can only look at this context as part of your evidence that you've produced to this Commission?‑‑‑Well, happily I'm here to give evidence so I can - - -

PN654

We'll move onto - if you don't mind, we'll move on to Tom Tye's reply, dated 25 May?‑‑‑Sure.

PN655

Luke, on the below data I have the following points as to where we are positioned. Agency labour hire - I have the list of names that you presented to me that we have reviewed. We have engaged the agencies and have requested the payslip verification as to when they have paid the grade 1 to 1A form with each employee on your list. Once the gap is identified I will update you. I have requested a response from these agencies by no later than Tuesday next week.

PN656

?‑‑‑Yes.

PN657

Now, that doesn't have any relevance to Westgate forklift drivers being asked to do picking duties, does it?‑‑‑No.

PN658

It then goes on to say:

PN659

Once point 2 is clarified next week I'll be in a better position as to when and what we will reimburse these team members.

PN660

Now, that has no relevance, would you agree?‑‑‑It does not.

PN661

Then:

PN662

Employees converting from grade 1 to grade 2 - I believe that some team members now think that they only have to perform one of the grade 2 functions and if the company requests it they can refuse to perform these other grade 2 functions. Some of the team members on the list presented by the TWU have flatly refused to be trained in other functions and this is totally unacceptable.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN663

Now, that doesn't have any relevance, does it?‑‑‑Maybe, I'm not sure. So that could be referring to the grade 2 workers, contract workers, refusing to undertake training to pick.

PN664

I think Mr Tye's being very clear there, he's saying that in order for employees to convert from grade 1A to 2 they have to perform more than one of the grade 2 functions, that's correct, isn't it? That's what he's saying there?‑‑‑It's certainly what he's saying in the first sentence, yes.

PN665

All right. So we'll move to two:

PN666

In short, I will upgrade the team members on lists presented by the TWU from grade 1A to grade 2 starting next week, on the understanding they will be required to undertake training as and when required in order to perform all functions, task, duties covered by grade 2 classification and below, as prescribed by the enterprise agreement.

PN667

That has no relevance to the dispute you're referring to in paragraph 3, does it?‑‑‑No. I mean the contractors would have already been grade 2, so that wouldn't have had any - no.

PN668

All right. Then we have an email from Tom to you, on 4 June 2012:

PN669

Hi Luke, as per our conversation today on the below matters, agency hire, there is two parts to this matter in which I still need closed; confirmation when the agency pay the eligible team members grade 1A. I hope to have the required data tomorrow from the two agencies in question.

PN670

Now, that has no relevance either, does it?‑‑‑No.

PN671

The gap from the above point will then need to be determined as to what will be reimbursed to the eligible team member. The data will not take long to address as my commercial manager has processed a lot of the data already.

PN672

Now, that has no relevance, does it?‑‑‑No.

PN673

Then we have an email from yourself to Melvin Bailey, who's an applicant, Nadia Pisano, I believe is an email address of one of the applicants?‑‑‑That's Frank, yes.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN674

(Indistinct) Aleski(?) who is no longer with the business?‑‑‑No.

PN675

Arthur Bregiannis who was an applicant?‑‑‑Mm hm.

PN676

And you've said to those persons:

PN677

Got this today from Tom. Feel free to discuss it with your member but don't post a copy of it. Regardless of this progress I have contacted FWA and asked for the matter to be listed.

PN678

?‑‑‑Yes.

PN679

Now, once again that email has no relevance, does it?

PN680

MS JARDINE: Relevance to what?

PN681

MR JONES: Well, relevance to paragraph 3, in relation to trying to get Westgate permanent forklift drivers to perform picking duties?‑‑‑Well, unless I was talking about the email that I'd sent, dated 22 May, because I say, the second paragraph, which I've numbered as 1, was related to the issue of the contractors. Whilst I can't be sure, but I also suspect Tom's email to me, on 22 May - sorry, on 25 May, where he talks about workers refusing to undergo training may also refer to these workers, although what is it, six years ago.

PN682

Mr McCrone, I put it to you that LM1 has no relevance to paragraph 3. You've used words "may" et cetera, do you agree with that, that it has no relevance?‑‑‑No, I don't agree with that.

PN683

All right, we'll move on. In response to - now, I'm going to take you to your further witness statement and, specifically, paragraph 3(a)?‑‑‑Yes.

PN684

THE COMMISSIONER: Which page of your book?

PN685

MR JONES: Sorry, it's not in the books, Commissioner, because it was a further witness statement.

PN686

THE COMMISSIONER: All right.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN687

THE WITNESS: Yes, I've got it. Yes.

PN688

MR JONES: You say:

PN689

In response to the Milburn statement I state paragraph 238, Brenden Milburn, was not involved with the dispute in 2012, he was not involved in the meetings on site to discuss the issue and he did not attend the Fair Work Commission conciliation.

PN690

?‑‑‑Do I have a copy of Brenden Milburn's statement?

PN691

Yes, you do?‑‑‑Whereabouts would I find that?

PN692

I'll take you there in a minute?‑‑‑It would be useful - - -

PN693

Could I take you to, yes, and I'll take you to it now, paragraph 238, which is page 263?‑‑‑Of which?

PN694

It's in the same book which you were reading your statement from?‑‑‑Yes, I see, 263 you say?

PN695

Do you have that in front of you?‑‑‑Yes.

PN696

So at paragraph 238 of Mr Milburn's witness statement he says, in response to your paragraph 3:

PN697

I reject the assertions made, the facts in relation to the dispute, from Tom Tye and his involvement as the DC manager and the formal commencement of the dispute are set out in paragraph 212 and BM76, annexed to this witness statement.

PN698

If I could take you to 212, which is on page 260?‑‑‑Yes.

PN699

Now, he says there:

PN700

In response to paragraph 8 and the rotation of tasks.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN701

But just ignore that if you could, for the moment, Mr McCrone. He then goes on to say:

PN702

Since the commencement of my tenure with Westgate in '99 and Linfox in 2007, both organisations have always maintained employees will perform the tasks and duties at or below their relevant classification designation, as directed. A small number of employees began disputing this in 2008. Exhibit BM76 are true copies of documents provided to me by George Katsifolis from Linfox workplace relations that set out the beginning of the formal disputation of the current dispute.

PN703

Now, if I could refer you to BM76, Mr McCrone, which is in the list of exhibits?‑‑‑Where's that?

PN704

You'll find it tabulated, it says BM et cetera?‑‑‑This one here?

PN705

Yes, one of those three books there you'll see BM76?‑‑‑BM76? All right, BM76.

PN706

Do you have that in front of you?‑‑‑It's an email from Mel to - - -

PN707

It's on page 1061?‑‑‑1061? Okay, yes. Got you.

PN708

If you could turn over - sorry, Mr McCrone, if you could turn over the page to 1062?‑‑‑Yes.

PN709

Now, here is your application, would you agree it's your application? If you look at page 1063 you'll see applicant, contact person Luke McCrone?‑‑‑Yes, that looks about right.

PN710

It's an application made by the Transport Workers' Union?‑‑‑Yes.

PN711

If you turn over the page, Mr McCrone, to section 4 of that application, on page 1065?‑‑‑Yes.

PN712

You'll see that there is dispute 1?‑‑‑Yes.

PN713

And dispute 1 is clause 26.13:

*** LUKE BRENDAN McCRONE XXN MR JONES

PN714

Shift work, meal time of the agreement requires a shift worker to be paid 20 minute crib break when on shift. The company is not paying a 20 minute crib break on a Saturday overtime shift, even where the shift extends beyond 10 hours.

PN715

?‑‑‑Yes.

PN716

Turn over the page, on 1066, you'll see what dispute 2 is about?‑‑‑Yes, it's the contractors dispute.

PN717

Yes, here we go. So:

PN718

Prior to Linfox taking over the Coles contract, the work was done by Westgate. The contract changed hands in approximately December 2007. Upon taking over the contract Linfox provided employees with a letter stating they would be engaged on the same pay and in the same role.

PN719

?‑‑‑Yes.

PN720

Now, if I could take you to page 188, just very quickly, Mr McCrone, of the other book, which contains all the witness statements?‑‑‑So this is my witness statement you want to take me to now, is it?

PN721

It's the book with all the witness statements?‑‑‑Whose witness statement are we looking at?

PN722

Page 188, sorry, 189, Mr McCrone. You will see there that that's a letter marked FP3?‑‑‑Yes.

PN723

It's title is, "Transfer of Employment from Westgate to Linfox"?‑‑‑Mm hm.

PN724

Now, is that the letter that you are referring to in your application where you say, on page 1066, in relation to dispute 2:

PN725

Upon taking over the contract Linfox provided employees with a letter stating that they would be engaged on the same pay and in the same role.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN726

?‑‑‑Look, this is the first time that I've seen this in a long time, but I think that's right, yes.

PN727

All right. You then go on to say, back to page 1066, Mr McCrone, you then go on to say:

PN728

At a meeting on Monday, 28 February Linfox indicated that it would no longer be honouring the letters of offer and intended to rotate workers out of their current role and into other duties. This position was confirmed at a second meeting on Monday, 7 March.

PN729

?‑‑‑Yes.

PN730

If I could now take you back to page 1062, sorry 1061?‑‑‑Yes.

PN731

You'll see that it's a letter from Tom Tye, the operations manager, dated 17 February 2011?‑‑‑Yes.

PN732

And you see there where Tom Tye says:

PN733

Dear Team Members, several employees have recently approached the management with letters and documents purporting to describe their classification designation and the duties contained within. This material is no longer relevant nor does it apply to your employment. All warehouses at the Coles RDC Altona site are covered by the Linfox Victoria Coles RDC Agreement 2008. The agreement is the principal document that currently applies to your employment and describes the duties to be performed by each grade classification. Clause 18.2 Classifications, from the agreement, describe the skills and duties that are to be exercised and performed under each distribution facility grade. For example, grade 2, "An employee who is employed at the grade 2 level would be expected to perform all tasks at or below that grade, which may include, but not limited to, administration, housekeeping, loading, forklift and picking duties." Due to operational requirements and in accordance with the Linfox Victoria Coles RDC Agreement 2008, Linfox RDC management may require you to perform one or more of the tasks/duties as described in your relevant grade classifications. If there are any further questions on this, please do not hesitate to contact me.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN734

Would you agree with me, Mr McCrone, that after that letter was distributed you then made the application, as I described to you on page 1066, in relation to dispute 2?‑‑‑Where was the dispute application, sorry? Where was that again? It seems like that would be the case, I just need to have a look at the dates, that would probably tell the story.

PN735

I can help you here, the Tom Tye letter was dated 17 February 2011?‑‑‑So in April we lodged the dispute. So between February and April, I imagine there probably would have been some meetings on site, in accordance with the disputes procedure, before we proceeded to attempt to conciliate the matter.

PN736

So would it be fair to say that arising out of that letter is your application, dated 4 April 2011?‑‑‑That would have been part of the dispute. I don't know whether this was - - -

PN737

Yes, as you've indicated in your application - - -?‑‑‑ - - - the first we heard of the company's intention or whether we'd heard about it earlier. Perhaps some management had approached the workers on the floor, I'm not sure.

PN738

So you agree with me that it was your application, correct?‑‑‑Yes.

PN739

And you agree with me that part of that application was in relation to what you've said there, in paragraph 3 of your witness statement, about forklift drivers being required to perform picking duties?‑‑‑It was forklift drivers as well as some clerks as well, I believe.

PN740

Yes, so it could be increased?‑‑‑Sorry.

PN741

Well, let's focus on that, I think it's very important. That's point 3 of dispute 2, on page 1066:

PN742

Linfox indicated that it would no longer be honouring the letters of offer and intended to rotate workers out of their current role and into other duties.

PN743

So that would be all workers, all ex Westgate employees who have letters of offer, is that right?‑‑‑Yes.

PN744

Now, the matter number for this dispute, if I could take you to page 1068, and you can see there that the matter number is DR2011/114, correct?‑‑‑Yes, I see that. There was just a hell of a lot of dispute lodged at the RDC, as you probably remember, Darren, so - - -

*** LUKE BRENDAN McCRONE XXN MR JONES

PN745

There were many, many disputes lodged at the RDC, however the one I'm referring to you is DR2011/114. If you look at the subject matter, this might help job your memory, you will see there subject is alleged dispute concerning payment to shift workers in relation to meal time and - - -?‑‑‑I remember that one, that was a good one.

PN746

- - - an alleged dispute concerning the rotation of workers out of their current role and into other duties?‑‑‑Yes.

PN747

So that's lining up with your application, isn't it?‑‑‑Yes, that looks about right.

PN748

You can see that there were a number of conferences before the Commission. We have the first one, Monday, 15 August 2011, correct?‑‑‑So these are all the notices of listings that you've got?

PN749

Yes, I'm about to take you through it very quickly?‑‑‑Yes.

PN750

That was the first one. The second on, conference 2, Thursday, 24 November 2011, same subject?‑‑‑Yes.

PN751

The third conference really occurred on page 1071, as you will see, on page 1071, it was initially scheduled on page 1070 for 6 March, but then the time was fundamentally changed from 1 pm to 10.30?‑‑‑Yes.

PN752

So, in effect, that would be conference number three, do you agree with that, Mr McCrone?‑‑‑Yes.

PN753

Conference number four, on page 1072, occurred at the Coles RDC site at the time, do you agree with that?‑‑‑Yes.

PN754

And this dispute was before Bissett C, do you agree with that?‑‑‑Yes, but my recollection - so most of these disputes were around - most of these conferences were around the issue of the meal allowance to shift workers, so there's - - -

PN755

I'll come to that, Mr McCrone?‑‑‑Yes, but my memory, Darren, and you were there, correct me if I'm wrong, but my memory was when the Commissioner came out to site it was to deal with the workers who had their classifications reduced.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN756

I will come to that?‑‑‑So it just surprises me that that dispute notice, where she comes and does a site inspection, relates to this matter, because I thought the only time she came out was in relation to the dispute about you reducing people's classifications.

PN757

What I'm putting to you, Mr McCrone, is very simple, it's in relation to your paragraph 3, the two things which you've already confirmed, the TWU made the application, the application was in relation to concerning the rotation of workers out of the current role into other duties, and you've agreed with me on that, and you've agreed with me that there were four conferences and you've agreed with me that Bissett C was presiding over those conferences, as the member, and that's as far as I'll take it for now, correct? Do you agree with me on those point that I just made?‑‑‑Yes. I'm not sure though that this notice of listing, where the Commissioner comes in and does a site inspection, was in relation to the dispute about either the meal allowance for shift workers or the contractors. I believe that site inspection was in relation to the dispute concerning people having their rate of pay dropped. This was fairly early in my time at the TWU, I had worked at the CFMEU before, as you've correctly identified, but that was under the Workplace Relations Act was the instrument that was in place at the time, and I'd had some experience running I think they were section 99 disputes, which was a dispute arising out of an agreement or the award, but these F10 disputes, this was all a bit new to me so I was learning it as I went, if you like.

PN758

Maybe I can help you out with that, Mr McCrone?‑‑‑Please.

PN759

If we go to paragraph 4 of your statement?‑‑‑Of my statement?

PN760

Of your statement, sorry, Commissioner.

PN761

THE COMMISSIONER: Not your further witness statement, of your statement?‑‑‑Yes.

PN762

MR JONES: You say the other part of this industrial dispute was the fact that Linfox had demoted about 12 of the former Westgate employees and paid them at a lower grade rate than their Westgate grade rate?‑‑‑Yes.

PN763

At paragraph 5 you say:

PN764

Both issues were agitated at the Commission but the focus was on the underpayment of some of the workers.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN765

?‑‑‑That's what we spent most of the time. But as you say, that seems to have been a different F10, it doesn't seem to have been on the F10 regarding the contractors.

PN766

Now, where does it say, in this application, "Linfox demotion of about 12 former Westgate employees"?‑‑‑Yes, it's not there.

PN767

It doesn't say it, does it?‑‑‑No.

PN768

All right. Well, do you accept that arising out of that application, and I refer to DR2011/114, two outcomes arose. Firstly, this was after four conferences, firstly, that it was discovered that a number of ex Westgate employees were under classified upon transfer to Linfox, which was rectified by deeds of release, do you recall that as an outcome?‑‑‑Yes, but was that a different F10, or was that these - was that a different matter number or was that part of this matter number?

PN769

No, I'm putting to you that arising out of those four conferences that we had before the Commissioner, even though it's not part of the subject, arising out of those four conferences it was discovered that former Westgate employees had been under classified upon transfer from Westgate to Linfox, do you recall that?‑‑‑I certainly remember spending a lot of time talking about that, yes. But I don't know whether it was part of this application or a different application, I'm not sure.

PN770

Well, I'm saying it to you, Mr McCrone, it arose out of this application that you made, do you accept that?‑‑‑That seems plausible because, as I say, this conference or inspection that occurred on site, I remember that was to deal with the issue of the 12 people who had had their wages cut.

PN771

Now this, of course, aligns with paragraph 5 of your witness statement, and the last sentence in paragraph 7 as well, where you say:

PN772

The other dispute -

PN773

And this is the last sentence:

PN774

The other dispute resolved with the underpaid workers being paid some of the back pay owing to them.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN775

?‑‑‑Yes. But we spent a lot of time, though, Darren, if you remember, dealing with this issue of the shift workers and the meal break. We were in the Federal Court about that.

PN776

I'll come to that now, Mr McCrone. So that was the first outcome. The second outcome Bissett C issued a statement expressing her view that workers who commenced work prior to 0800 were shift workers?‑‑‑Yes.

PN777

As a consequence entitled to the 20 minute paid crib break, do you agree with that?‑‑‑She did issue that statement, God bless her.

PN778

I'm sure, as you've just referred, you'll recall the TWU then pursued that matter into the Federal Court and subsequent lost the matter?‑‑‑I remember it well.

PN779

Now, at no time was there any resolution to the application with respect to dispute 2, under section 4 of your F10 application, was there?‑‑‑No, there was.

PN780

What was the resolution?‑‑‑Well, the company dropped it.

PN781

Sorry?‑‑‑The company dropped it.

PN782

The company dropped it? Mr McCrone, how could the company drop something that is not theirs? You said to me it was the TWU's application, was it not?‑‑‑Yes, the company decided not to pursue their policy of getting these employees to pick. They abandoned that claim and the dispute was resolved in our favour, there was no point in continuing with it.

PN783

Well, let's park that for a moment, let's take you to paragraph 6?‑‑‑Yes.

PN784

You say:

PN785

In relation to the forklift drivers issue, Bissett C made the comment, "Why would you get grade 2 workers to do grade 1 work and pay them grade 2 rates and then get grade 1 workers to do grade 2 work and also pay them grade 2 rates?"

PN786

?‑‑‑Words to that effect, yes.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN787

Then 7 you say:

PN788

The dispute was then dropped by Linfox and Linfox agreed that the status quo would continue to prevail. That is, that the forklift drivers would continue to do just forklift driving as their ordinary duties. As I said before, the other dispute resolved with the underpaid workers being paid some of the back pay owing to them.

PN789

?‑‑‑Yes.

PN790

If I could take you back to Tom Tye's letter, which is on page BM76, page 1061?‑‑‑Yes.

PN791

You recall that this letter came out before your application and before the alleged agreement by Linfox to not do anything?‑‑‑Yes.

PN792

You'll see again, and I'll read it, at the section, for example, grade 2, I read that to you:

PN793

An employee who is employed at the grade 2 level would be expected to perform all tasks at or below that grade, which may include, but not limited to, administration - - -

PN794

MS JARDINE: Where are you reading from?

PN795

MR JONES: Sorry?

PN796

MS JARDINE: Where are you reading from?

PN797

THE COMMISSIONER: From page 1061.

PN798

MR JONES: From page 1061. BM76. So:

*** LUKE BRENDAN McCRONE XXN MR JONES

PN799

The grade 2 level would be expected to perform all tasks at or below that grade, which may include, but not limited to, administration, housekeeping, loading, forklift and picking duties. Due to operational requirements and in accordance with the Linfox RDC Agreement 2008, Linfox RDC management may require you to perform one or more of the tasks/duties as described in your relevant grade classifications.

PN800

Do you see that?‑‑‑Yes.

PN801

Now, Mr McCrone, would you agree with me that Tom Tye has been very clear about his expectations?‑‑‑Yes.

PN802

You agree with me that there were four conferences before Bissett C, that's correct, isn't it?‑‑‑Yes. They didn't all four deal with this issue, this issue was resolved at the first conference, we never heard - that was the end of it for some years, after that first conference.

PN803

Now, neither of these disputes proceeded to arbitration before the Commission, did they, Mr McCrone?‑‑‑Well, one of them ended up in the Federal Court, so it was an arbitration of a kind, I suppose.

PN804

All right, so one ended up in the Federal Court. But none before this tribunal?‑‑‑No.

PN805

In reference to paragraph 6 of your witness statement, and paragraph 3(b)(c), if I could take you to both of those, of your further witness statement?‑‑‑3(b) and (c)?

PN806

Sorry, 3(b) and (c), I apologise?‑‑‑Yes. Where's Brenden Milburn's statement again, where do I find that? It's in here, right?

PN807

No, I'm not going to take you to the paragraph yet, I just want you to focus on your further witness statement, which is - and the paragraphs I want to take you to is 3(b) and (c)?‑‑‑Yes, I'm replying to Brenden's paragraphs, so I just want to know what I'm replying to.

PN808

Sure. You'll find paragraph 239 on page 263?‑‑‑239? Without going and looking at Steve Peterson's paragraphs 4 and 3 - what's the question?

PN809

The point I'll make of this, Mr McCrone, is that where you say Bissett C allegedly asked the question, returning to paragraph 6:

*** LUKE BRENDAN McCRONE XXN MR JONES

PN810

Why would you get grade 2 workers to do grade 1 work and pay them grade 2 rates and then get grade 1 workers to do grade 2 work and also pay them grade 2 rates?

PN811

That's your recollection because there isn't a formal record of this, is there?‑‑‑No, that's my recollection.

PN812

Now, this is not the first time that potentially this question has been asked, is it, Mr McCrone?‑‑‑About the contractors - - -

PN813

Well, no, that specific way that Bissett C frames that question? It might help if I take you through some examples of that?‑‑‑Sure.

PN814

Could I refer you to page 207, the witness statement of Mal Carroll?‑‑‑Yes.

PN815

Paragraph 7. Now, you'll see, at the bottom of paragraph 7, where he says that Mr Bartsakis said words to the effect - no, we said to Mr Bartsakis, in 2008, words to the effect:

PN816

Why get grade 2 employees to do grade 1 work when you have to pay additional money to the grade 1 workers?

PN817

?‑‑‑Yes.

PN818

So that was asked in 2008. Then you'll see, on page 10 of that same book, the statement of Arthur Bregiannis?‑‑‑What paragraph?

PN819

Yes, paragraph 8(c)(i)?‑‑‑Yes.

PN820

Down the bottom?‑‑‑Yes.

PN821

The matter had gone to the Commission to try and resolve the dispute. The Commissioner said, "Why would you pay grade 2 to do a grade 1A job and then pay grade 1A a grade 2 rate for the day to do the fork work?"

PN822

?‑‑‑Yes.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN823

A slight variation on that theme?‑‑‑When's that, 2011?

PN824

Do you agree Mr McCrone?‑‑‑So that's referring to the same conference, is it?

PN825

Well, I'm just putting the question to you, there's a slight variation on that theme, because now Mr Bregiannis is saying "fork work," that's correct, isn't it?‑‑‑Yes, yes, yes. I think it was mainly in relation to forklift jobs but, yes, I think we're talking about the same thing there.

PN826

If I could take you to page 219, paragraph 6 of Steve Peterson's witness statement?‑‑‑Yes.

PN827

He says, down the bottom:

PN828

I recall the Commission making the comment, "Why get grade 2 people to do grade 1 work under grade 2 rates and then get grade 1 people to do grade 2 work and be paid grade 2 rates?"

PN829

?‑‑‑Yes.

PN830

Now, in 2011, putting aside what was said in 2008 to Mr Bartsakis, in 2011 if Bissett C did ask this question, as you alleged, then this would have been a question directed to Linfox, wouldn't it?‑‑‑Yes, that's right, it was.

PN831

So you agree with that proposition?‑‑‑She asked you.

PN832

I took you to Tom Tye's letter, barely a month or two before, that application that you made in those conferences before Bissett C?‑‑‑Yes.

PN833

Are you seriously suggesting, Mr McCrone, that Linfox changed its attitude, in the space of two months, and dropped its position of expecting all employees to perform all tasks within their grading classification, is that what you're putting to the Commission?‑‑‑That we were able to settle something in conciliation?

PN834

Is that what you're putting to me, we settled - - -?‑‑‑We very rarely settled things in conciliation with Linfox but, from time to time, it did happen. This is one such occasion.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN835

So we very rarely settle things in conciliation and you're saying that we settled this matter in conciliation, is that right?‑‑‑Well, this was settled in conciliation, that's right.

PN836

I put it to you that you are wrong, Mr McCrone. We'll move on.

PN837

MS JARDINE: Is there a question?

PN838

MR JONES: Well, I asked the question.

PN839

MS JARDINE: You just can't make a comment. Is that a question?

PN840

MR JONES: Well, the question I put to Mr McCrone - - -

PN841

MS JARDINE: Well, allow us to respond then.

PN842

THE WITNESS: Yes, I didn't respond. Put the question again.

PN843

MR JONES: Are you seriously suggesting that barely two months before the four conferences that took place with Bissett C, after this letter was issued by Tom Tye, two months later Linfox dropped the matter and we agreed?‑‑‑Well, it had gone to a higher level of management, it had gone to you. You were now involved.

PN844

So you're saying I agreed?‑‑‑You were the decision maker in this case, yes.

PN845

So I'll take you back to the question, without your diversions to me - - -

PN846

THE COMMISSIONER: Well, (indistinct) Mr Jones entering the witness box, go on.

PN847

MR JONES: I put it to you, Mr McCrone, that that's incorrect?‑‑‑Agree to disagree, will we?

*** LUKE BRENDAN McCRONE XXN MR JONES

PN848

All right. Do you accept, Mr McCrone, that it's possible that Linfox's response to that question, allegedly asked by Bissett C would have aligned itself to Tom Tye's letter? Do you think that might have been the possible response from Linfox, when she put that question to Linfox?‑‑‑So that Linfox's response would have been to continue with its plan?

PN849

Sorry, Linfox's response would have been?‑‑‑To continue with its plan.

PN850

Well, the question I'm putting to you is, do you think that Linfox's response, when asked that question, would have aligned itself to Tom Tye's letter, in that - - -

PN851

MS JARDINE: (Indistinct) this witness to hypothesise about anything that Linfox did or didn't think. This witness can give evidence about what he thought and what he knew. What Linfox did or didn't think is not for him to say.

PN852

THE COMMISSIONER: I agree.

PN853

MR JONES: All right. Do you recall Linfox's response?‑‑‑Yes, you let them keep driving forklifts.

PN854

And you say that that was our response to the Commission?‑‑‑Yes. I mean it's an interesting way to resolve a dispute to lay down and play dead on it for six years.

PN855

Well, we'll come to that. If I could take you to BM5?‑‑‑BM5?

PN856

BM5?‑‑‑Where would I find that? Yes, I think I've got it. The EBA?

PN857

Yes?‑‑‑Yes.

PN858

If I could take you to page 101?‑‑‑Yes.

PN859

Can I refer you to 13.1(c) and (e)? Do you have that in front of you?‑‑‑Yes.

PN860

It says there:

PN861

13.1 The objectives of this agreement are to - - -

PN862

And specific reference to (c):

*** LUKE BRENDAN McCRONE XXN MR JONES

PN863

Develop a wholly motivated, multi skilled flexible and adaptable workforce.

PN864

Do you see that?‑‑‑I see that.

PN865

And at (e), once again:

PN866

The objectives of this agreement are to (e) remove inefficient work practices and processes in all areas of Linfox's operations to ensure flexible, timely and reliable delivery of services to Linfox and its customers.

PN867

Do you see that?‑‑‑I do.

PN868

So in light of that, in light of Tom Tye's letter, I'll ask you again, are you seriously suggesting that Linfox agreed that that was the end of the matter?‑‑‑Well, I think that would need to be read in conjunction with the other terms of the agreement, in particular the - - -

PN869

I'm happy for you to take me to those other terms in the agreement, if you like, Mr McCrone?‑‑‑Sure. The customer practice clause, was that in the 2011 or 2014 agreement?

PN870

I'm in your hands, Mr McCrone?‑‑‑Yes, in the next agreement I think we dealt with it. So what was the question? Sorry, Darren?

PN871

The question I put to you, the transcript will show, the question I put to you was, are you seriously suggesting that Linfox agreed to do nothing, your position that they agreed that forklift drivers would not be required to do the picking tasking in ordinary hours of employment, in light of the Tom Tye letter and the provisions 13.1(c) and (e) that I just read to you?‑‑‑It was never our understanding, I say "our", I can't really speak on behalf of the TWU, it was certainly never my understanding in this agreement that it would place an obligation on an employee of Linfox to do any job Linfox wanted them to do. If, for example, you put to me that you think this clause will allow you to take a truck driver and stick them in the warehouse to pick, I would say, no, that was never envisaged under this agreement.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN872

I agree with you Mr McCrone, and I agree with you that we would not take a truck driver from an award classification and get them to pick under a distribution centre classification, you'd agree with that too?‑‑‑Absolutely. But I'm not sure how broadly you can read that clause is what I'm saying.

PN873

All right. Let's take a brief look at the history of this dispute, and this is based entirely on the witness statements submitted by the applicants, and others, in this proceeding. If I could take you to page 210 of the witness statement folder?‑‑‑210 of what, sorry?

PN874

Page 210 of the folder that has the witness statements in it?‑‑‑Yes, got you.

PN875

Paragraph 9, witness statement by Mel Bailey?‑‑‑Yes.

PN876

I recall that around late 2007 and early 2008, after our employment had moved to Linfox, I was called to the office of Mr Steve Bartsakis, inventory manager, and Linfox wanted me to do picking duties. I said, "No, I have a better offer as an inventory clerk."

PN877

Do you see that?‑‑‑Yes.

PN878

That was in 2007, early 2008?‑‑‑I would have been laying on a beach in South America, Darren, I couldn't really comment on what had happened at that time.

PN879

All right, Mr McCrone, I'm not really interested in your laying on a beach, but that's fine, we'll move on. Could we go to page 207, this is a witness statement of Malcolm Carroll?‑‑‑Yes.

PN880

Paragraph 7:

PN881

I recall that in about 2008 the then Linfox manager, Mr Steve Bartsakis, tried to direct the Westgate forklift drivers to also do picking duties, this was disputed.

PN882

Do you see that?‑‑‑Yes.

PN883

If I can then take you to page 219?‑‑‑Yes.

PN884

Paragraph 5 of Stephen Peterson's statement?‑‑‑Yes.

PN885

Now we're going to 2011?‑‑‑That's 2008.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN886

Sorry, that's still 2008:

PN887

In about 2008 I recall that not long after we transferred to Linfox, Linfox tried to get us, being the Westgate permanent employees, including the applicants, to do picking but we refused.

PN888

?‑‑‑Yes.

PN889

Page 218?

PN890

MS JARDINE: I'm just wondering why various paragraphs are getting read to the witness with no question. It's just taking a lot of time and the witness has already said he wasn't there in 2008 and has no knowledge of it. So I'd be asking that the Commission urge this - to move on.

PN891

THE COMMISSIONER: Yes, come to the point. Come to the question.

PN892

MR JONES: Linfox has been trying to break this deadlock for years, hasn't it, Mr McCrone?

PN893

MS JARDINE: One again, this witness can't comment on anything before 2010, so it's not for him to say anything about that.

PN894

THE COMMISSIONER: Well, he can answer the questions. He can answer - - -

PN895

MR JONES: Just based on what you - sorry, Commissioner. Just based on what you've seen there, and I haven't gone through the entire - - -?‑‑‑Well, based on what I've seen here it seems that every new DC manager tried to have a crack at this.

PN896

Tried to have a crack at what?‑‑‑Well, it looks like, based on these witness statements it seems like Steve Bartsakis tried it, I know Tom Tye tried it, Mr Phil McInerney had a go at it. It just seemed to be something that people could come along and they'd see an arrangement in place and they weren't happy with it and they set about trying to change it.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN897

So you agree with me that since at least 2008 Linfox has been trying to break this dispute?‑‑‑I wouldn't agree with your characterisation that there's been an ongoing effort, it seems to have been a series of separate efforts.

PN898

All right, a series of separate efforts. And there's been a number of formal proceedings in relation to this matter, hasn't there, Mr McCrone?‑‑‑There's been - well, aside from this, obviously there's been a fair bit. I know the NUW was involved in some stuff, but I think, in terms of my involvement, we had one conciliation hearing where it was raised and, in my view, settled.

PN899

Now, we've gone through BM76, page 1061, if you want to refer to that you can, but I think the transcript will show that you agreed with me that that was your application, in relation to DR2011/114?‑‑‑Sorry, what am I looking at?

PN900

Well, I'll take you to page 1061, BM76?‑‑‑BM76, yes. Okay, what page did you say?

PN901

1062?‑‑‑1060?

PN902

Two?‑‑‑Two. Yes, that was the application, yes. No, wait a minute.

PN903

Do you see that there, the application that you made?‑‑‑Yes, that's the one. Yes.

PN904

Commissioner, if I may, can I provide a copy of Mel Bailey's further witness statement to the witness?

PN905

THE COMMISSIONER: Sure.

PN906

THE WITNESS: Right, yes. I'm glad I don't have to wait for you to cross-examine Mel.

PN907

THE COMMISSIONER: Could you just answer the questions, please, Mr McCrone?‑‑‑Sorry, Commissioner.

PN908

Remember where you are?‑‑‑Sorry?

PN909

Remember where you are?‑‑‑Sorry.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN910

MR JONES: You'll see there, Mr McCrone, there is, at paragraph 3(c) it says:

PN911

The decision of Gregory C, C5967/2016, handed down on 3 November.

PN912

?‑‑‑Yes.

PN913

And he says, at paragraph 3(d):

PN914

The decision of the Full Bench, 16 March 2018.

PN915

?‑‑‑Yes.

PN916

And I think you alluded to before that the NUW also made an application that went to arbitration, didn't they?‑‑‑Yes.

PN917

So with your application in 2011, with the NUW application that commenced on 5 November 2016, does that sound about right?‑‑‑I wasn't involved in that NUW matter, I'm not really aware of the particulars of it.

PN918

Then we had the 4 October 2016 application by the applicants?‑‑‑Yes, again, I have no knowledge of that.

PN919

Then we had the Full Bench proceeding, as referred to by Mr Bailey?‑‑‑Yes, I don't think I was even employed with the TWU when they were in - - -

PN920

But you don't disagree with what Mr Bailey's put there?‑‑‑I don't know. I don't know.

PN921

All right. And, of course, this current proceeding which you are currently a part of?‑‑‑Yes.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN922

There's been an extensive history of disputation, hasn't there, Mr McCrone?‑‑‑Well, in my area in which I have knowledge there was the dispute that we've gone over, it was settled in the first conciliation. There was some further questions raised about the entitlement to do the contractor duties on overtime, which I think I deal with in my statement. Beyond that, I don't really know. I wouldn't say it was that extensive, those two instances that I've had involvement in.

PN923

Mr McCrone, are there any industrial arrangements or settlements or local matters, agreements, that you are aware of that details or codifies that forklift drivers will not do picking or any other duties during the ordinary hours of work?‑‑‑Is there anything where it's written down?

PN924

Yes?‑‑‑Well, look, there's - I don't know whether you'd agree with it or not, but there's that contract the guys have produced, from time to time, that says they'll be engaged as a forklift driver. I don't know, arguably that may constitute the agreement being codified.

PN925

So you say that arguably that might constitute the agreement being codified?‑‑‑Correct. Perhaps, yes, but that'd be the only place. Apart from that it was all word of mouth.

PN926

If I could take you to paragraph 8 of your witness statement?‑‑‑Of my witness statement?

PN927

Yes?‑‑‑Yes.

PN928

Just have a quick read of that and in conjunction with paragraph 3(d) of your further witness statement. Let me know when you're ready?‑‑‑Yes.

PN929

The question I have for you, Mr McCrone, in relation to those two paragraphs - - -?‑‑‑Paragraphs, sorry, 8 and?

PN930

Yes, paragraph 8 of your witness statement and paragraph 3(d) of - - -?‑‑‑(d) did you say, I thought you were talking about (b), sorry. 3(d). Yes, all right, got you.

PN931

Yes, 3(d) of your further witness statement?‑‑‑Yes.

PN932

You say, in paragraph 8, the last sentence:

PN933

This was the agreement with Linfox and it was reflected in the tracker rosters which Mr Arthur Bregiannis wrote.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN934

?‑‑‑Yes. Look, I don't know if it was actually - I'm not sure if it was the tracker roster, the tracker roster may have been something else, but I'm not exactly 100 per cent sure. I think the tracker roster was about trying to share the workload equally amongst workers, so there may be an error in that witness statement. So it was the company didn't want to deal with - so - - -

PN935

Hang on, Mr McCrone, you've said, in your witness statement, sworn evidence, do you wish to now retract that?‑‑‑I'm not sure if tracker roster is quite right so, yes, that's - I think that's an error.

PN936

Do you wish to strike that from the record? Retract it from your sworn evidence?‑‑‑Yes, if I could. Apologies.

PN937

All right, noted?‑‑‑But there was a roster that was administered by the delegates, on the afternoon shift, to determine which of the contracted forklift drivers were going to get the spots that had been made available to contractors.

PN938

Mr McCrone, let's look at AB11, page 75?‑‑‑Of which, page 75?

PN939

Page 75?‑‑‑Of?

PN940

Exhibit AB11, sorry, my mistake. Yes, page 75 of the witness statement booklet?‑‑‑AB? Arthur Bregiannis?

PN941

Yes?‑‑‑Let's look at Arthur's witness statement, shall we? All right. What paragraph number?

PN942

THE COMMISSIONER: No, no, it's just page 75.

PN943

MR JONES: Just page 75 and it's an email, from Arthur, and it's dated Monday, 20 October 2014?‑‑‑From Ratu, is that the one?

PN944

No, from Arthur Bregiannis to Greg Plummer and David Farrell?‑‑‑Yes, yes, yes.

PN945

Now, he says - now, Greg Plummer, he's an operations manager, would you agree with that?‑‑‑Yes, that's right.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN946

And David Farrell, he's a resources and planning manager, would you agree with that?‑‑‑Yes, that sounds about right.

PN947

Arthur says:

PN948

Hello Greg/Dave, I would like to point out to you the misbalancing of the forklift work that has been happening in the last fortnight, why is it still happening?

PN949

?‑‑‑So - - -

PN950

I'm not asking you the question why it's still happening, do you see that there?‑‑‑Yes.

PN951

If I could take you now to page 160, which is an email which follows on from that email?‑‑‑Yes.

PN952

Now, this email is dated, from David Farrell, down the bottom there, to Arthur Bregiannis and Greg Plummer, Ratu Tubia, David Hight and it's dated Monday, 20 October 2014, 4.43 pm, which is approximately just under an hour after Arthur sent that email, do you agree with that?‑‑‑Yes.

PN953

He said:

PN954

Arthur, (indistinct) last week when I reflected back to the roster and the team member's attendance, based on approved leave from Kronos. I've only reviewed the first 18 as a large snapshot, overtime shifts have been excluded. This is a one week snapshot and, as previously shown to you, it will take seven weeks, or thereabouts, to have a balanced fork load. Naturally, we will monitor and adjust the shift start plan on a daily basis.

PN955

?‑‑‑Yes.

PN956

And Arthur, above that exchange, on Monday, 20 October 2014, at 4.56 pm, to David Farrell, replies:

*** LUKE BRENDAN McCRONE XXN MR JONES

PN957

Dave, Can you please explain how people that go on four times in a week while others go on once is a seven week rotating issue. If people are away, the managers should be putting in (a) on the day, I believe they were in attendance.

PN958

Do you see that?‑‑‑Yes.

PN959

If you go above, David Farrell responds, on Monday, 20 October 2014, at 8.47 pm, in response to Arthur and cc's in Phil McInerney, who I believe was the distribution centre manager at the time, is that correct?‑‑‑Yes.

PN960

He says:

PN961

Arthur, of the 18 none were four days. Of these, those who were on site for five days none were one day only. Don't understand your comments. It is not representing a seven week roster. Below is a snapshot of one week of which I am sure you are aware of. You have not included the backups in your care of rotation. The spreadsheet is not a recognised tool within the business, therefore there is no requirement or expectations to complete by the management team.

PN962

?‑‑‑So this is something different.

PN963

Insofar as no shows, I will still with details on Kronos.

PN964

Do you see that?‑‑‑Yes, but this is something different, the tracker is something different.

PN965

Well, can I take you to over the page, at 159, when Arthur responds, on 22 October 2014 at 11.12 pm, to David Farrell and cc's in Phil McInerney, the DC manager?‑‑‑Yes.

PN966

Hey, David, of the 18 none were four days. Dave (indistinct) was. Others were three days or two, numbers which are above one of these. Those who were on site for five days none were only one day only. I am going by the entering of As on the tracker, don't understand your comments, "It's not representing the seven week roster, below is a snapshot of one week, which I'm sure you are aware of."

PN967

Sorry, these are responses in the lighter shade to Mr Farrell's email?‑‑‑Would it help if I explained my understanding of what the tracker was?

*** LUKE BRENDAN McCRONE XXN MR JONES

PN968

Just let me finish, Mr McCrone?‑‑‑I'm losing you a little bit Darren, I'll be honest.

PN969

So Arthur says:

PN970

What I'm saying is how can a person go on only once where others have gone on more than two or three times. I've been given two weeks of tracking here.

PN971

And David says:

PN972

You have not included the backups in your care of rotation.

PN973

Arthur says:

PN974

Some believe they have not been included in the care of rotation, backup or not.

PN975

David Farrell says:

PN976

The spreadsheet is not a recognised took in the business, therefore there is no requirement or expectations to complete by management.

PN977

Arthur says:

PN978

I've been asked to this date to update the sheet with a new batch of dates. If the sheet is not being recognised who is filling in? I think managers use it as a guide -

PN979

He says:

PN980

because they recognise the importance of tracking and do what they can for fairness and rotation when there is a need to deviate from the roster, for operational requirements.

PN981

Do you see that?‑‑‑Yes.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN982

Now, Mr McCrone, the planning and resources manager, David Farrell, tells Mr Bregiannis, very clearly, that the spreadsheet is not a recognised took within the business, that's correct, isn't it?‑‑‑Yes. He does say that, yes. But I think that's right, I don't think the tracker was a recognised tool.

PN983

So the tracker spreadsheet was not a recognised took within the business. And then he also - - -

PN984

MS JARDINE: I've got an objection to that. The witness just disagreed with it and then Mr Jones repeated the statement as though he'd agreed with it.

PN985

THE COMMISSIONER: I agree.

PN986

MS JARDINE: He mustn't do that.

PN987

THE COMMISSIONER: I think he was disagreeing with the proposition. You might want to restate the question.

PN988

MR JONES: All right. Mr McCrone, the planning and resources manager tells Mr Bregiannis, very clearly, that the spreadsheet is not a recognised took within the business, that's correct, isn't it?‑‑‑Yes, he does say that.

PN989

Then Mr Bregiannis, on 22 October 2014, at page 112, responds to the email, David Farrell's email saying:

PN990

I think manager's use it as a guide because they recognise the importance of tracking and do what they can for fairness and rotation when there is a need to deviate from the roster for operational requirements.

PN991

He says that, doesn't he?‑‑‑Yes. But there's two issues being conflated here, Darren, and I admit it's certainly partly my fault, because I referred to the tracker in my witness statement, but the tracker was designed by Arthur to deal with a different issue, it wasn't designed to deal with the issue of the four slots to be made available to the contract forklift drivers. I mean the tracker deals with a number of employees that aren't - that weren't contract workers.

PN992

Now, the exchange that I just took you through, you would agree with me that Mr Bregiannis thinks that managers use it as a guide, that's correct?‑‑‑Yes.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN993

Now, if I could refer you to AB20, which is page 171?‑‑‑I've got AB20 written at the top of page 158.

PN994

So page 171, it's an email from Arthur Bregiannis to Phillip McInerney?‑‑‑Yes.

PN995

Hey Phil, a couple of main points from the meeting last Friday -

PN996

Down at point 14 I'll refer you to - - -

PN997

MS JARDINE: Where are you referring to?

PN998

MR JONES: Point 14, on page 171. It's an email sent from Arthur Bregiannis to Phil McInerney, dated Thursday, 27 November 2014, at 11.11 pm. Do you have that in front of you, sorry, Mr McCrone?‑‑‑Yes.

PN999

Arthur says:

PN1000

Hey Phil, a couple of the main points from the Meeting last Friday, re rostering.

PN1001

?‑‑‑Are you going to read this whole email to me, Darren?

PN1002

No, I won't. Not in chronological order?‑‑‑Okay.

PN1003

At point 14 it says there:

PN1004

AB mentioned the tracking tool was considered useful and used as a guide by a couple of the team managers.

PN1005

?‑‑‑Yes.

PN1006

Phil said, "I've mentioned before, you should have patented this, you could be a wealthy man by now, it does not cover all areas as mentioned before."

PN1007

Do you see that?‑‑‑Yes.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN1008

So is this the system that you're talking about, Mr McCrone, as an agreed position between the company and Mr Bregiannis?‑‑‑No.

PN1009

What is that system?‑‑‑The system I'm referring to?

PN1010

Mm?‑‑‑Steve Peterson and Arthur and the contract forklift drivers, there were, I don't know, eight of them, I can't remember exactly how many there were on afternoon shift, would decide amongst themselves how to organise who got those four positions that had been made available on the weekend.

PN1011

Is this codified anywhere, details?‑‑‑No.

PN1012

That it was an agreed position?‑‑‑Look, there may have been an email on it. I wouldn't have been surprised if there had been an email on it, but I don't have access to my emails so I don't know.

PN1013

In relation to paragraph 9 of your witness statement?‑‑‑Yes.

PN1014

THE COMMISSIONER: Paragraph what, sorry? What was that?

PN1015

MR JONES: Sorry, in relation to paragraph 9 of his witness statement, Commissioner.

PN1016

THE COMMISSIONER: Yes.

PN1017

MR JONES: And also I'll direct you to paragraph 3(e)?‑‑‑Yes.

PN1018

Now, you say, in paragraph 9:

PN1019

During the negotiations of the 2011 enterprise agreement and the 2014 enterprise agreement it was well known to the TWU and to Linfox that the former Westgate employees, being now the 31 applicants, only did their job of forklift driving or clerical work during their ordinary hours of work and none of them were required to perform picking duties during their ordinary hours of work.

PN1020

?‑‑‑Yes.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN1021

Then you say, in your further witness statement, at paragraph 3(e):

PN1022

The logs of claim that a reference to it at BM81 do not represent the sum total of the logs of claim served on the company. The union also lodged specific claims for most of the contracts, including the RDC. As I no longer work for the union I do not have access to these documents.

PN1023

?‑‑‑That's right.

PN1024

Can I take you to BM81?‑‑‑Yes, that's the log of claims that Michael Aird(?) served on Laurie, is that the one?

PN1025

Yes, we have a log of claims there?‑‑‑Yes.

PN1026

Would you agree with me, for the 2011 National Enterprise Agreement?‑‑‑Yes.

PN1027

That commences at section 1 and concludes at schedule A?‑‑‑Yes.

PN1028

Then, on page 1131 we have a log of claims from the National Union of Workers?‑‑‑That's in 2013, three years later, is that the one?

PN1029

Yes?‑‑‑Yes.

PN1030

That is in relation to the 2014 National Enterprise Agreement, you would agree with that?‑‑‑Yes.

PN1031

Then we have a log of claims from the TWU, in relation to - that commences on 1134, in relation to the 2014 National Enterprise Agreement, do you agree with that?

PN1032

MS JARDINE: What page is that one?

PN1033

MR JONES: 1134?‑‑‑That's these slides?

PN1034

Yes, the PowerPoint presentation?‑‑‑Was that the log of the claims, I think we would have had something a bit more than this, wouldn't we?

*** LUKE BRENDAN McCRONE XXN MR JONES

PN1035

Well, if you go to page 1142, you'll see a titled log of claims and then subsequent pages talks about what's not negotiable in the claim and different parts?‑‑‑Yes. Didn't we have something similar to what was served on you in 2010?

PN1036

I'm putting the question to you. These are the log of claims that Linfox say that they received?‑‑‑I don't think that that's right. I think in 2014 you would have received a document that looked fairly similar to the document on page 1120.

PN1037

You say, Mr McCrone, that the log of claims that are referenced there do not reflect - represent, sorry, the sum total of logs of claims served on the company?‑‑‑No, that's right.

PN1038

If you look at NUW log of claims, on page 1131?‑‑‑Yes.

PN1039

THE COMMISSIONER: Sorry, 1100 and?

PN1040

MR JONES: Sorry, Commissioner, 1131.

PN1041

THE COMMISSIONER: Yes.

PN1042

MR JONES: And you recall, Mr McCrone that about 2013, late 2012, the NUW started making inroads into the RDC, is that correct?‑‑‑I do remember that well.

PN1043

You would agree with me that it was a very turbulent time?‑‑‑Happy to agree with you about that.

PN1044

A lot of friction, disputation amongst the parties?‑‑‑Absolutely.

PN1045

You would agree with me that the NUW were very forceful in their determination to gain as much membership of that site as they possibly could, would you agree with that?‑‑‑Yes.

PN1046

So, Mr McCrone, if what you've agreed to me, do you see anywhere in their log of claims that talks about letters of offer being honoured from Westgate employees, or Westgate employees only performing certain tasks?‑‑‑I had no involvement in developing this log of claims, so I couldn't say for sure. But there may, at point 1 - - -

*** LUKE BRENDAN McCRONE XXN MR JONES

PN1047

No, the question I'm putting to you, you may want to read for yourself, on page 1132, do you see any claim in relation to - - -?‑‑‑I don't know what they mean, but where they say, "Current terms and conditions of employment continue," that could have been a reference to the contractors, or the Westgate employees, I don't know.

PN1048

All right, so you say that point 1 on page 1132 that could be a reference to, as you described before, the letters of offer that had titles on there, forklift driver or clerk, that could mean that?‑‑‑Yes. But possibly 14. Like I say, I didn't develop this log of claims.

PN1049

All right. The question I have for you, in relation to paragraphs 9 and 3(e), where you say - - -?‑‑‑What's that about is - - -

PN1050

Let me finish the question?‑‑‑Sorry.

PN1051

During negotiations for the 2011 enterprise agreement and the 2014 enterprise agreement it was well known to the TWU and to Linfox that the former Westgate employees only did their job of forklift driving or clerical work during the ordinary hours of work and none of them were required to perform duties during the ordinary hours of work.

PN1052

Mr McCrone, if it was so well known then why have you not been able to produce one shred of evidence to support this claim?‑‑‑Because I don't have access to any of my files or notes from this period.

PN1053

You don't have any minutes, do you?‑‑‑I don't have anything. I left the TWU offices with the clothes on my back, I took nothing with me.

PN1054

And you'd agree with me - no, you've already said what your version is, I'm sorry, I withdraw that. I've just got one final question for you, Mr McCrone, are there any other tasks/duties, besides the picking tasks, that the applicants in this proceeding allege do not form part of their ordinary duties?

PN1055

MS JARDINE: Sorry, (indistinct).

PN1056

MR JONES: Well, the question I'm putting to Mr McCrone is, are there any other tasks, besides the picking task, that the applicants in this proceeding allege do not form part of their ordinary duties?‑‑‑Yes.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN1057

What are they?‑‑‑So if you had a contract that said you were a forklift driver, clerical duties, for example.

PN1058

It might help if I take you to BM8?‑‑‑BM8.

PN1059

BM8, which is page 235?‑‑‑Yes.

PN1060

You'll see, down the bottom there, this is an attachment to Brenden Milburn's witness statement where he sets out, as you can see it says, "BM-8 Task"?‑‑‑Yes.

PN1061

And across the top he's listed a number of tasks?‑‑‑Yes.

PN1062

From his viewpoint, that exist in the warehouse.

PN1063

MS JARDINE: I just think that the witness should be informed that the applicant's dispute this document.

PN1064

THE COMMISSIONER: You dispute BM8? On what basis? We may have to get Mr McCrone to step out of the room for a moment.

<THE WITNESS WITHDREW [3.37 PM]

PN1065

THE COMMISSIONER: What is it? What is the document, Mr Jones?

PN1066

MR JONES: Commissioner, this document is Brenden Milburn's annexure where he sets out the tasks that occur in the warehouse and he's listed, across the top there, the types of tasks. You'll see that the picking task is the fifth box from the right, and you have other tasks. It starts with "Recoup, admin and manual handling, put back, cycle counting, relay, store order auditing," and it goes on and on, from his perspective of having been at that site for many years.

PN1067

THE COMMISSIONER: This is an attachment to his statement?

PN1068

MR JONES: Yes.

PN1069

THE COMMISSIONER: What's the issue with it?

*** LUKE BRENDAN McCRONE XXN MR JONES

PN1070

MS JARDINE: Sorry?

PN1071

THE COMMISSIONER: What's the issue with it?

PN1072

MS JARDINE: The entirety of this document is disputed, Commissioner. The tasks that are listed there, they way they're described and there's a document, MB5, so that's the annexure to Brenden Milburn's affidavit, witness statement.

PN1073

THE COMMISSIONER: But you'll no doubt cross-examine him about that?

PN1074

MS JARDINE: Well, I think it's appropriate really to - this could take forever and a year if we ask every witness about it. The person that's going to be giving evidence about this is Mr Mel Bailey, and MB5 is effectively a summary of the tasks that each of the 31 applicants have done and in what circumstances.

PN1075

THE COMMISSIONER: (Indistinct) your evidence, but I don't see what the basis is for not allowing Mr Jones to ask him a question about this.

PN1076

MS JARDINE: He can ask him questions, but I don't think it really assists the Commission because, first of all, the detailed knowledge of what - - -

PN1077

THE COMMISSIONER: I'll say this, the cross-examination, thus far, has been lengthy, but that has to be weighed against the fact that there is a significant amount of material that's been lodged on behalf of the applicant. That's just the nature of the case. Both sides are entitled to run the case as they see fit. I've said that at the start and I repeat it. As to - just while I finish, whether or not questions can be asked about BM8, I don't know that's a difficulty. You're not objecting to questions being asked, you're raising some - - -

PN1078

MS JARDINE: No, I just want this witness to be informed, because this witness has not gone through all the other witness statements and hasn't got instructions about any of this and the tasks - I just want him - - -

PN1079

THE COMMISSIONER: Well, with respect, it's a matter for him what he's been through, he can speak for himself about that. If he hasn't been through them well that's a matter for him, all right.

PN1080

MS JARDINE: A matter for him, absolutely. It's just, as a matter of fairness, that that's why I wanted him informed that - - -

PN1081

THE COMMISSIONER: Well, you made the statement from the Bar table, so he's been informed, so we'll proceed. Thanks.

<LUKE BRENDAN McCRONE, RECALLED [3.41 PM]

CROSS-EXAMINATION BY MR JONES, CONTINUING [3.41 PM]

PN1082

THE COMMISSIONER: Yes, Mr Jones?

PN1083

MR JONES: Thank you, Commissioner. Mr McCrone, in reference to BM8, which I believe you have in front of you?‑‑‑Yes.

PN1084

You can see that there are a number of tasks which are listed across the top of the table?‑‑‑Yes.

PN1085

And you'll see that those tasks are then listed, in dot points, on the bottom left-hand corner as well, and explanations in relation to them?‑‑‑Yes.

PN1086

You'll see that the picking task is listed at the fifth from the right of the table, where it says, "Picking - manual handling"?‑‑‑Sorry? Yes, got you.

PN1087

And you'll see that the picking task is listed as the fifth dot point from the bottom?‑‑‑Yes.

PN1088

So the question I have for you, are there any other tasks, using this spreadsheet as a reference, besides the picking task, that the applicants in this proceeding allege do not form part of their ordinary duties?‑‑‑Look, I don't have a hundred per cent, I never actually went out and watched people work, as a rule, so most of my interactions on the warehouse would have been limited to the lunch room and the meeting rooms. So I never actually spent - I spent probably very little time actually watching people performing tasks. I heard about these jobs, in passing, but I didn't really know precisely what they were or what they entailed. I got a pretty good understanding of what the pick task involved, through the dispute about the reasonable expectancies but, beyond that, I wouldn't claim top be an expert on the different roles or functions within the warehouse.

PN1089

So is your answer, you're not sure whether they're saying that other tasks don't form part of their ordinary duties?‑‑‑Yes, I don't know.

PN1090

You don't know?‑‑‑No.

*** LUKE BRENDAN McCRONE XXN MR JONES

PN1091

All right. Commissioner, I have no further questions for Mr McCrone.

PN1092

THE COMMISSIONER: Thank you. Anything arising?

RE-EXAMINATION BY MS JARDINE [3.43 PM]

PN1093

MS JARDINE: Mr McCrone, can you just have a look at, I'll just get the page number, you were asked questions about the negotiations for the 2011 enterprise agreement?‑‑‑Yes.

PN1094

I just want to show you a letter, it's MB1, and I don't know the page number in the court book, I'm sorry?‑‑‑Thanks.

PN1095

THE COMMISSIONER: MB1.

PN1096

MS JARDINE: It's 211.

PN1097

THE COMMISSIONER: 211, thanks.

PN1098

MS JARDINE: Have you seen that document before?‑‑‑Yes, I've seen this.

PN1099

Can you tell the Commission what the circumstances were when you saw that document?‑‑‑Yes, my recollection was Steve Peterson was at the national negotiations, representing the RDC, I wasn't, for the 2011 agreement. Steve raised some concerns - because we were taking a whole lot of different agreements and amalgamating them together into one, Steve was a bit concerned that some of the conditions enjoyed at the RDC may be lost in that process and so Laurie gave an undertaking that if anything had inadvertently been missed out that it would still continue to apply.

PN1100

You were asked questions, it was put to you, in relation to the industrial dispute in 2011, given the timing of the documents, that was 2011, and the letter from Tom Tye was 2012, that you refer to in your witness statement, are you - do you know what I'm talking about, or do you - - -?‑‑‑No, if you could take me to it, it would help.

PN1101

I'll take you to the - - -?‑‑‑Is that the letter that Darren was talking about, where he wrote to us and said that he wanted those guys to pick, is that the one?

*** LUKE BRENDAN McCRONE RXN MS JARDINE

PN1102

Yes, that was written in May 2012. I'll just find it for you. In any event, coming back to your witness statement, the industrial dispute that was referred to in those Fair Work Commission documents, that dispute was in 2011?‑‑‑I think Darren was right when he went through the timeline, that we'd lodged the F10 subsequent to receiving that letter from Tom, I think that's about right, from memory.

PN1103

Okay, so it was 2011. So when you've had - these emails, which are LM1, in your witness statement, are they after that industrial dispute had finished, or is that part of that industrial dispute?‑‑‑These would have been during.

PN1104

During?‑‑‑So in amongst. I mean I'd have to go back and check the dates, but I think this would have been in amongst those conferences that were held.

PN1105

So, to the best of your knowledge, it was your evidence earlier that the matter resolved at the Commission and that was that?‑‑‑Yes, that's right. In relation to the contract forklift drivers. The other things continued on for some time.

PN1106

MR JONES: Sorry, can I just clarify that LM1, you say - - -?‑‑‑LM1's my witness statement, is it?

PN1107

Sorry, LM1?‑‑‑Yes.

PN1108

LM1 to your witness statement, so that email chain, that they - that was occurring, if I understand what you were saying just then, that was occurring as part of the time of the four conferences that was the subject of the dispute in 2011, is that what you just said? Tell me if I'm wrong about that?‑‑‑Well, we can go back and have a look at the dates, Commissioner, but I mean that seems to be the case. Where are they - - -

PN1109

MS JARDINE: I'll see if I can find those. 81, which I don't have a page number for. No, 76?‑‑‑BM76?

PN1110

BM76, yes. So there's - in there there's notice of listing, there's one for 6 March 2012, have you found that? It's about 1061?‑‑‑Yes, there's the dispute we lodged in 2011.

PN1111

Yes, and there's another one, a couple of notice of listing in 2012?‑‑‑Yes.

*** LUKE BRENDAN McCRONE RXN MS JARDINE

PN1112

Then this email, from Tom Tye, is 25 May 2012, that's in LM1?‑‑‑So we made the application in April, these emails were sent - - -

PN1113

THE COMMISSIONER: April 2011?‑‑‑Yes. These emails were sent in 2012. So this issue of the grade 1A - sorry, this issue here of the labour hire workers who weren't promoted to grade 1A, as they were entitled to, under the agreement, that took 18 months, that took a really long time to resolve.

PN1114

MS JARDINE: A long time to resolve. So when we go into the BM76, the actual F10 form, and we look at the dispute there, I'm looking at the second page of that, where it says, in points 2 and 3, when do you recall that that part of the dispute got resolved? So it's under paragraph - subparagraph 4, what is the dispute about - - -?‑‑‑So that would have been resolved, from memory, I would say that would have been resolved on this meeting on 15 August 2011.

PN1115

All right. So from that time on?‑‑‑From that time on it was resolved. I mean, I think, but I'm going from memory, we're talking over six years ago, so I couldn't be 100 per cent sure, but my recollection is that's the dispute that we lodged on 4 April and we dealt with this matter concerning the contractors very early in the piece, I believe it would have been on this conference held on 15 August. The dispute continued to roll on because we'd failed to resolve the aspect that concerned the shift workers getting paid for their meal break, or their crib break. That continued to roll on for years before we ended up getting that sorted out in the Federal Court. But in amongst that we lodged another dispute that dealt with these 12 people having their classifications or their pay cut, that went on for a little while as well. I think the two disputes sort of got mixed up together.

PN1116

All right. So time wise then in your statement, in paragraph 6, in your first witness statement, where you quote what Bissett C had to say, that was made in about the August 2011?‑‑‑Yes, I think that's right. That's my best memory of it anyway.

*** LUKE BRENDAN McCRONE RXN MS JARDINE

PN1117

Now, you were giving evidence about the tracker roster and the real roster, can you just explain to the Commission what the difference is, please?‑‑‑Yes, sure. So there was a policy implemented by Tom McInerney, called pick plus 1, and he wanted everybody in the warehouse to pick as well as have one other function, so forklift or clerks or inventory or whatever. This cost a lot of agro because people didn't feel like those premium roles, the forklift role, the clerk's role, those type of roles, were being evenly shared around. It seemed to a lot of people that it was always the same people getting them. So Arthur developed a tracker where, it wasn't just Arthur, I think the managers would enter in each individual and what work they'd done. So the tracker would then say, "This fellow has done 60 per cent of their time in a grade 2 function and 30 per cent of their time picking." So it was a way to track to see if the work was being evenly shared around. Now, whilst it was never officially adopted by the company, I don't think, it did lead the company to develop a tracker of their own and that allowed people to understand how the tasks were being shared around. It didn't fix the problem because people still felt that the work was being shared around unfairly, but it was a very different to what I refer to in my witness statement, at paragraph 8, that was a much simpler process, because there were only a handful of contractor forkies on the afternoon shift, so didn't need anything as complex as the tracker to keep track of those four positions. Didn't need to track them across a whole range of functions, it was just Saturday and Sunday, two shifts on Saturday or two shifts on a Sunday, or something like that, who's going to get them, which of the contractors are going to get them.

PN1118

No further questions, thanks, Commissioner.

PN1119

THE COMMISSIONER: Thanks very much. Thanks for your evidence, Mr McCrone, you're excused from further attendance at the Fair Work Commission, in respect of this matter.

<THE WITNESS WITHDREW [3.56 PM]

PN1120

THE COMMISSIONER: All right, it's 4 o'clock, we have a less busy courtroom as of a couple of minutes ago. Is there any utility - I'm happy to sit till 4.30 or so, we could do another half an hour with the - - -

PN1121

MS JARDINE: I'm not sure whether Mr Jones would be finished with Mr Bregiannis - - -

PN1122

THE COMMISSIONER: Well, it didn't sound like it. It might be more desirable to start again tomorrow morning.

PN1123

MS JARDINE: I get the feeling that it's unlikely we're going to finish tomorrow, what is your position, if we don't finish tomorrow?

PN1124

THE COMMISSIONER: That we'll set further days and finish eventually, and we will discuss that tomorrow. It's really - yes, I think your prophesy will come to pass, at the current speed, without too many difficulties. But I think we'll just see how far we get. Sometimes with these matters things pick up speed, it depends on if you think every witness is going to take the same amount of time, but they don't, we might go more quickly, but we'll see how we are placed tomorrow and we can deal with that at that stage. Mr Jones, have you got any views about the programming?

*** LUKE BRENDAN McCRONE RXN MS JARDINE

PN1125

MR JONES: Commissioner, I was about to say that I'm of the view that this matter probably will go beyond tomorrow and I agree, we'll hopefully set some dates tomorrow in relation to that.

PN1126

THE COMMISSIONER: Yes. All right, well we'll reconvene at 10 am tomorrow morning and we'll continue with the cross-examination of Mr Bregiannis at that time.

ADJOURNED UNTIL FRIDAY, 15 JUNE 2018 [3.58 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FWC1 QUESTIONS AGREED BY PARTIES............................. PN100

ARTHUR BREGIANNIS, AFFIRMED............................................................. PN107

EXAMINATION-IN-CHIEF BY MS JARDINE.............................................. PN107

EXHIBIT #A1 WITNESS STATEMENT OF ARTHUR BREGIANNIS WITH 20 ATTACHMENTS................................................................................................. PN141

EXHIBIT #A2 FURTHER WITNESS STATEMENT OF ARTHUR BREGIANNIS WITH TWO ATTACHMENTS....................................................................................... PN144

EXHIBIT #A3 THIRD WITNESS STATEMENT OF ARTHUR BREGIANNIS PN203

CROSS-EXAMINATION BY MR JONES........................................................ PN204

THE WITNESS WITHDREW............................................................................ PN570

LUKE BRENDAN McCRONE, AFFIRMED................................................... PN574

EXAMINATION-IN-CHIEF BY MS JARDINE.............................................. PN574

EXHIBIT #A4 WITNESS STATEMENT OF LUKE McCRONE DATED 08/05/2018 PN587

EXHIBIT #A5 FURTHER WITNESS STATEMENT OF LUKE McCRONE DATED 07/06/2018................................................................................................................................. PN587

CROSS-EXAMINATION BY MR JONES........................................................ PN594

THE WITNESS WITHDREW.......................................................................... PN1064

LUKE BRENDAN McCRONE, RECALLED................................................ PN1081

CROSS-EXAMINATION BY MR JONES, CONTINUING......................... PN1081

RE-EXAMINATION BY MS JARDINE......................................................... PN1092

THE WITNESS WITHDREW.......................................................................... PN1119

Fair Work Commission Transcripts

C2018/1611, Transcript of Proceedings [2018] FWCTrans 233 (6 July 2018)