AG2017/3080, Transcript of Proceedings [2018] FWCTrans 48 (28 February 2018)

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PN1

THE DEPUTY PRESIDENT: I note the appearances are the same as the other day. Have the parties discussed whose evidence is to be led first?

PN2

MS DOUST: No, Deputy President. We had rather assumed Mr Ford would go first and I think that's - - -

PN3

THE DEPUTY PRESIDENT: Yes. Well, they're the applicant. Yes.

PN4

MS DOUST: There are a couple of issues before we kick off, Deputy President. At a convenient moment - - -

PN5

MR McCARTHY: I do apologise. Just before we start, the more formal aspects of it - I notice Mr Garrett is in the room . Mr Garrett is being called as a witness and I have already mentioned to Mr Garrett the protocol as I understand it is that until witnesses are called, they shouldn't be present in the hearing.

PN6

THE DEPUTY PRESIDENT: That only applies to the parties whose evidence is being heard, that principle.

PN7

MR McCARTHY: I'm sorry, your Honour?

PN8

THE DEPUTY PRESIDENT: It doesn't apply to the party - it only applies to the party whose evidence is being led at that time. It doesn't apply to the other party's witnesses. Because they are going to be opposed anyway. Do you understand?

PN9

MR McCARTHY: I do.

PN10

THE DEPUTY PRESIDENT: Yes. The purpose of the rule, such as it is - I am not sure that it's a rule - is that parties on the one side are not influenced, because they are in the cause of that side, by the evidence of the other witnesses. That's the proposition. It doesn't apply. You don't exclude witnesses from the other side.

PN11

MR McCARTHY: Well - - -

PN12

THE DEPUTY PRESIDENT: In any event - - -

PN13

MR McCARTHY: That is my - with respect to - - -

PN14

THE DEPUTY PRESIDENT: Well, you point to me where it says that the - where the principle applies. I always apply it in the way I've just described it. Witnesses for one side must remain out, but witnesses on the other side can remain, because they are the opposing parties. They are not going to be - they're going to be opposed to the propositions anyway advanced usually by the other side.

PN15

MS DOUST: But they gain the advantage of hearing the evidence of the first witness, which may influence then their decision as to what they submit themselves - - -

PN16

THE DEPUTY PRESIDENT: Well, I don't see it that way and I don't apply it that way. Unless you can point me to a matter of principle on this or authority on this point - - -

PN17

MR McCARTHY: We are not in a position to do that, your Honour.

PN18

THE DEPUTY PRESIDENT: Okay. Well, can we - rather than have this, do you have any problem if Mr Garrett remains outside?

PN19

MS DOUST: His presence would assist, particularly in respect of giving instructions during the course of Mr Ford's cross-examination about matters to do with the operation of the business; the application of the award and so on.

PN20

I really had understood that that sort of practice was adopted where there were, for example, contests directly between two witnesses about a conversation, for example, where they were giving evidence about a conversation that each of them had had, but there is nothing of that nature, I think, in the evidence of Mr Garrett and Mr Ford.

PN21

THE DEPUTY PRESIDENT: Anyway, I have ruled on the matter.

PN22

MS DOUST: Thank you. Deputy President, is it convenient to raise the two issues that I'd flagged just a moment ago?

PN23

THE DEPUTY PRESIDENT: Yes.

PN24

MS DOUST: The first is this, you issued last Friday an order to produce documents in accordance with which we and the Commission, I think, received some documents on Friday afternoon and then some further documents this morning. As to the vessel surveys that have been produced this morning, on my instructions there are two surveys which may have been overlooked in the process. I just wish to formally raise it so that perhaps some further steps can be taken by the applicant.

PN25

On my instructions the vessel survey for Sea Cat 1 and Totally Wild have not been provided. Mr McCarthy wasn't able to shed any light on the issue, but I appreciate, given the lateness and the speed with which things are being brought together, that he may not have been in a position to deal with that immediately, but can I just flag it that those are two vessel surveys we do seek, and we do say they come within the scope of the order.

PN26

MR McCARTHY: I have had the opportunity since counsel did raise it with me, your Honour, of conferring with Mr Ford and I can provide a response in relation to why those vessel surveys were not included.

PN27

THE DEPUTY PRESIDENT: Yes. Go ahead.

PN28

MR McCARTHY: The first is that Sea Cat 1 is not included, The ship is a sister ship to Sea Cat 2, so the survey vessel documents are identical, but Sea Cat 1's survey documentation apparently is simply unable to be found so we are not in a position to provide it. However, as I say, they are identical sister ships and so the content of Sea Cat 2 - and I'm not saying that it's a hundred per cent satisfactory but, as I had explained to me, they are identical ships, but unfortunately the company simply cannot locate the survey documentation for Sea Cat 1.

PN29

THE DEPUTY PRESIDENT: From the vessel?

PN30

MR McCARTHY: From anywhere apparently. As to the second matter, (indistinct) second vessel and that is Totally Wild, Totally Wild is quite a small vessel and I understand it is what is described in the sector as a coxswain's vessel. It is therefore not covered by the agreement and as a consequence of which the production of its survey documentation wasn't necessary. They are my instructions, your Honour.

PN31

THE DEPUTY PRESIDENT: Thank you.

PN32

MR McCARTHY: And just for a moment - I do apologise for this, I had a water spill just as you walked in the door, so I am just trying to quietly tidy up.

PN33

THE DEPUTY PRESIDENT: Don't worry. That's happened to me before too. You looked a bit flustered, Mr McCarthy.

PN34

MS DOUST: Yes. I may need to come back to that, Deputy President, because on my recollection I thought there were some references to the Totally Wild within some of the time sheets that have been produced. I may have been mistaken, but we may need to come back to that issue. I will address it in cross-examination in any event. The second issue which arises out the materials that were produced last Friday, Deputy President, is in respect of time sheets 1 and 2. Have you - have those materials made their way to you, Deputy President, in the course of the Commission's operation?

PN35

THE DEPUTY PRESIDENT: We have received them, but we assumed they may have been perused.

PN36

MS DOUST: We have received them. We have had a chance to examine them. The issue that arises is this and it arises particularly in respect of the time sheets, and I can hand up a copy of those to you - a hard copy at the moment, Deputy President, just to illustrate the point.

PN37

THE DEPUTY PRESIDENT: Do you have this, Mr McCarthy?

PN38

MR McCARTHY: I have this material. Yes, your Honour.

PN39

THE DEPUTY PRESIDENT: Yes.

PN40

MS DOUST: Can I just indicate, Deputy President, the document which in the top description at the top of the page, refers to time sheet export and so on, 26 June 2017.

PN41

THE DEPUTY PRESIDENT: Yes.

PN42

MS DOUST: That is the one which in the electronic version of the document is described as "Time sheets (1)", and the other document for which the date in the corresponding position is 10 July 2017 is described in the electronic version as, "Time sheets (2)".

PN43

What this material shows us, Deputy President, and I won't make any reference to the identity of the employees, which I gather was the particular concern of the applicant in seeking confidentiality, that your Honour will see that the documents show the hours worked by various employees in the business. That's a matter that's been of contention between the parties in terms of making an assessment under the BOOT test.

PN44

We would wish to have Mr Garrett conduct an analysis and a comparison of the time sheets, comparing the operation of the agreement against the award, by reference to the examples of hours worked over a full week period here by the employees.

PN45

We would be content for Mr Garret to deal with that on the basis that the names are removed but perhaps the employees whose names appear on those documents, they be replaced by an individual identifier. So I make that application for the confidentiality order to be lifted to that extent.

PN46

THE DEPUTY PRESIDENT: When is this exercise supposed to be conducted?

PN47

MS DOUST: We are proposing to do that overnight. We will certainly do the best we can overnight. We had some difficulty over the weekend, because we only received the materials late on Friday. They were obviously covered by an order as to confidentiality that confined it to myself and Mr Jacka, and in the time available we were limited in being able to carry out that sort of comparison. And can I say Mr Garrett would be the person who would be able to conduct a comparison by far the most efficiently out of anyone on our side of the Bar Table.

PN48

MR McCARTHY: Your Honour, as you can see, I'm slightly anxious to get to my feet, given the proposal that's been put. If the matter was raised with me briefly by counsel before the commencement a few minutes before and I've raised it with my client, my client would be completely opposed to that suggestion put forward by counsel and is opposed to it significantly for this reason and that is that what we are seeing is the attempted use by the respondent of the information we have provided under the production order for use that was not intended by the production order.

PN49

The production order is very clear and it says, under its schedule, that:

PN50

The applicant was to provide, (1) any document containing a list of the employees who were offered a vote in the ballot on 11 July 2017; (2) any document necessary to show the dates on which the ballot employees commenced employment with (a) Noorton Pty Ltd and/or Manly Fast Ferry Pty Ltd; (3) any document necessary to show the three most recent shifts worked by the ballot employees prior to the ballot on 11 July 2017 and (4) any letter of employment and/or engagement of the ballot employees current as at 11 July 2017.

PN51

There is also a matter (5), to do with the surveys of the vessels.

PN52

When we were before your Honour last Thursday and we were having an argument about access and a proposal for an amendment to the order, the purpose of the documentation that was put was to establish whether or not the employees - who was the actual employer of the employees and as required under section 181(1), and I do apologise - last week I think I constantly referred to it as 181(a), but I think it's 181(1) - but to determine whether the employees who were given an opportunity to vote in the ballot were employed at the time and covered by the agreement.

PN53

The material we have produced does just that. It includes the rosters that establish that the employees were working before and after the vote; when their shifts were before and after; who was the employer by way of the name on the top of the rosters; who was the employer by way of the group certificates we provided; who was the employer by way of the redacted pay slips we've provided and who is - and then we also provided a list of the exact dates by way of an Excel - in fact, an array of material included in the Excel spreadsheet for the purposes of satisfying the Commission in relation to those matters.

PN54

THE DEPUTY PRESIDENT: But it goes further than that, doesn't it? The objection of the union relates also to the BOOT, doesn't it?

PN55

MR McCARTHY: Well, that was not put as to the access for the material.

PN56

THE DEPUTY PRESIDENT: Yes, but material is not normally identified in the notice to produce, "I need it to prove this point, this point or this point", particularly when it's already said that one of the issues here is the question of the BOOT. What would be wrong - and my understanding of your client's concern is the identification of persons' names. So isn't the proposal to redact those names - there's nothing - no work for you to do or your client to do. You've produced the material and the question of confidentiality can be preserved by simply having the names redacted and giving them a one, two, three or whatever it might be.

PN57

MR McCARTHY: With the greatest respect to the Commission, but - so what we are seeing is that the concern that we displayed about access to this material and the Commission's decision that that access would be - that concern be satisfied and waylaid by the confidentiality undertakings of who would have access to this material, at the very beginning of the hearing is now being proposed to be overridden. Right from the get go. So so much for the proposition of confidentiality of access.

PN58

THE DEPUTY PRESIDENT: What do you mean "confidentiality"?

PN59

MR McCARTHY: Well, we understood - - -

PN60

THE DEPUTY PRESIDENT: It was confidentiality about the names of the persons, wasn't it?

PN61

MR McCARTHY: It was confidentiality in relation to access to the material.

PN62

THE DEPUTY PRESIDENT: But what prejudice is your client have about what hours worked by an unnamed person? And isn't that a matter that I am going to have to look at anyway?

PN63

MR McCARTHY: In relation to it, but that's a preliminary comment. I would need to get instructions if I could, your Honour.

PN64

THE DEPUTY PRESIDENT: All right. Well, we are not at that point yet, unless you wish to cross-examine about this.

PN65

MS DOUST: I will be cross-examining on some of the documents and I imagine we will - Deputy President, if you are proposing to have a lunch break at some stage, I imagine there will be some time with Mr Ford, so it may be that if we can deal with the issue by then - - -

PN66

THE DEPUTY PRESIDENT: I won't rule on this at the moment, Mr McCarthy, if you get those instructions, but again, I stress that it is not onerous for your client to do anything here and your concerns about confidentiality can be attended to. And I am going to have to deal with the question of the BOOT. I don't quite follow.

PN67

MR McCARTHY: I do appreciate your confirmation, your Honour.

PN68

THE DEPUTY PRESIDENT: All right. Thank you. Was there another matter, Ms Doust?

PN69

MS DOUST: No. It was just those two issues at this stage, Deputy President.

PN70

THE DEPUTY PRESIDENT: All right.

PN71

MR McCARTHY: Your Honour, given the vast array of materials before you in this matter, I was going to suggest that what I might do is make some initial opening remarks before calling - - -

PN72

THE DEPUTY PRESIDENT: Yes. Go ahead.

PN73

MR McCARTHY: And I do so partly because I just feel that it might assist the Commission getting a feel for or a sense of where the applicant is coming from in these proceedings before we do call the witness.

PN74

Your Honour, the matter before the Commission is an application for approval of a single enterprise agreement. The name of the new agreement is the Manly Fast Ferry Sydney Harbour Services Onboard Crew GBH's and Host Enterprise Agreement 2017. Noorton Pty Ltd is the employer of the employees who are employed under the agreement.

PN75

The application for approval of the agreement was made on 24 July 2017 and the employer made the application after more than 27 months of negotiations with the MUA. Regrettably, after all of this time the business and the MUA did not reach a consensus on the terms of the new agreement and, in fact, it would be right to say that the MUA is strongly opposed to the agreement being made.

PN76

This left the business with no choice, after all of that time, other than to approach its employees directly about the agreement and then to proceed to have the employees vote on the proposed agreement in the face of the MUA's opposition.

PN77

The employer put the new agreement before its employees on 11 July 2017. A majority of those employees voted in favour of the employee's proposal on that day and the new agreement was made on that day. The employer Noorton Pty Ltd now seeks to satisfy the Commission that the approval requirements of the Fair Work Act are satisfied and that the Commission should approve the agreement.

PN78

If I could just mention a few highlight features of the agreement, your Honour, in some form. I think it would be safe to say that this is not the average run-of-the-mill enterprise agreement. It has a number of interesting features that make it possibly quite unique as an instrument.

PN79

The agreement replaces two previously certified agreements under the previous Act and also it replaces two otherwise applicable modern awards with a single set of conditions as a single code of employment, with a single set of rates of pay which is something that the employees who will be covered by the agreement have not previously enjoyed.

PN80

At the introduction of a single code of employment - sorry, the introduction of a single code of employment explains why the employees proposed to the business right at the outset of the negotiations, the time when the company was proposing that it simply negotiate a new agreement to cover ferry work, that the employees put forward the proposition that instead of having two agreements into the future, there should be just one.

PN81

The employees' position was put on their behalf by the MUA's negotiating officials, Mr Paul Garrett and as then was with the union, Mr Colin Drane(?) during EBA negotiations that were held in the City Fish Markets in June 2015.

PN82

At that stage, the MUA supported and was committed to this approach, which was described throughout the negotiations and was actually described within the terms of the agreement itself as a blending and average approach. That is, that one agreement would cover both parts of the employer's business and the two parts of the employer's business are ferry work and the tourism work.

PN83

Such an agreement will allow the employees to work seamlessly between the two industries under the one argument. That doesn't occur at the moment. Such an agreement and the ability for the employees to work seamlessly between the two industries makes for, under one agreement, an attractive workplace for the employees where there is then under the one agreement covered a combination of work under the ferry services during morning and afternoon peak hours, which then runs into and combines with (indistinct) tourism work, such as taking tourists and sightseers around Sydney Harbour or out to see on whale watching adventures, or on the harbour for special events like New Year's Eve, celebrating functions and promotional events.

PN84

Your Honour, another feature of the agreement is that it will promote or was designed to promote and facilitate a shift from a tradition of all employees who are employed as either deckhands or hosts being employed as casual employees, shifting to a workforce that will consist of a blend of full-time, part-time and casual employees. And there are provisions within the agreement that cater for and entitle employees who have a certain period of engagement with the company as casuals to access and be able to seek appointment as either permanent full-time or permanent part time employees right from the commencement of the agreement.

PN85

THE DEPUTY PRESIDENT: Is that six months?

PN86

MR McCARTHY: Yes. So the agreement seeks to achieve this in such a way, by the way, not only the continued engagement of either casual employees but now a shift also to permanent full-time or part-time employees and to do so in such a way that will still achieve flexibility within the hours worked by the employees which the employees have expressed throughout the long period of the negotiations to be something that they very much enjoy and desire under present arrangements and that it would be put by the employees an spokespersons on their behalf, that is, as being somewhat of a driver, that flexibility for many of the employees in choosing to remain casual - casual over long periods of time for many of them with the employer.

PN87

However, the MUA's concerted opposition to the agreement has thrown up a litany of objections on legal hurdles in these proceedings for the employer to clear and rather than talk about what the objections are, perhaps I will just quickly address the employer's response to them.

PN88

The employer's response to those objections briefly is that the work of the employees is, in fact, a mixture of ferry work and marine tourism work; that the work itself is covered by both the Ports, Harbours and Enclosed Water Vessels Award and the Marine Tourism Award, that both of these awards are to be considered for the BOOT; that the employer, Noorton Pty Ltd is the employer and has been the employer of all the affected employees at all material times and is entitled under the Act to make an application for an enterprise agreement with its employees.

PN89

That the (indistinct) issued by Noorton Pty Ltd on 6 June 2017 is a valid one, that this is so notwithstanding that the employees are employed as casuals who are involved in the voting process. The process is valid and when we come to an analysis of the periods of engagement of these employees we will substantiate that they are not an itinerant rapidly turning over casual workforce. They are a very stable casual workforce.

PN90

That the employees were asked to vote to make the proposed agreement; specifically that agreement, the title of which I have read out, and did not - and were not asked to vote as has been suggested by the MUA in its material, simply to vote on the generic concept of an agreement of some sort being made.

PN91

The applicant response to the objections of the MUA include that the mathematics calculations in the employer's calculations tables are valid and that the employees will be financially better off compared with being employed under the otherwise applicable awards. They are our preliminary comments and observations, but having done so, we would propose to now call our first witness.

PN92

MS DOUST: There are some objections to Mr Ford's statement, Deputy President. I don't know whether it's convenient to deal with it before he enters?

PN93

THE DEPUTY PRESIDENT: I take it there has been no discussion with the other side about objections to evidence?

PN94

MS DOUST: No. I'm sorry there hasn't been, Deputy President. I will try and keep it short.

PN95

THE DEPUTY PRESIDENT: Yes.

PN96

MS DOUST: Just as to the first witness statement of Mr Ford - do you have that with you, Deputy President?

PN97

THE DEPUTY PRESIDENT: Yes, I do.

PN98

MS DOUST: Paragraph 18, the witness seems to be engaging in some sort of speculation about why it is that the New South Wales government has taken particular policies in relation to ferries, including by reference to where Mr Baird, who was then Premier had his seat, and none of that really is relevant or would assist you we'd submit, Deputy President.

PN99

THE DEPUTY PRESIDENT: Yes.

PN100

MR McCARTHY: I can only observe that the witness, Mr Ford, given the fact that the service - the principal ferry service that the business operates is between Circular Quay and Manly - given the fact that the then Premier of New South Wales was a member of Parliament in the state seat of Manly, and given the fact that the Premier took significant interest in the question of the service and provision of transport, ferry and tourism services for his constituents in that seat, there was significant and regular contact between not just the department, but between the witness and Mr Baird himself. So I suppose that he is entitled to express a personal view about those matters.

PN101

THE DEPUTY PRESIDENT: Well, I don't know how I'm helped in determining what the work is for the purposes of the awards as to what happened other than the next paragraph, which is the winning of the contract.

PN102

MS DOUST: No dispute about that, Deputy President.

PN103

MR McCARTHY: But, your Honour, even if you removed or redacted the reference to the minister himself the paragraph is referring to a significant issue, and that is whether we like it or not transport in New South Wales and probably anywhere is a political issue, and what had happened in the aftermath of the company losing its original exclusive contract which had commenced in and around April 2009 and it operated only for 18 months, so it operated for approximately to about sometime late 2010.

PN104

From that period on it did not have a services contract for ferry work between Manly and Circular Quay with the government, as a consequence of which a large number of competitors just started up running services in competition with them, and the point I suppose that's being made is it got to that point where it became obvious that the government had to do something about it, because none of those operators were making any money, so the government took a policy to put out the tender for a new single operator between the Circular Quay and Manly that would be contracted with the New South Wales Government by the Department of Transport - - -

PN105

THE DEPUTY PRESIDENT: But that's all factual background.

PN106

MR McCARTHY: Other than in competition with other than Sydney - - -

PN107

THE DEPUTY PRESIDENT: That's all factual background, but I am not sure that the implication that because the premier's seat happened to be Manly that – and I am not quite sure what you're trying to infer either by the way - - -

PN108

MR McCARTHY: It's not my statement, your Honour.

PN109

THE DEPUTY PRESIDENT: No doubt you had a part in its crafting. My practice is not necessarily to - - -

PN110

MR McCARTHY: I am just trying to create - - -

PN111

THE DEPUTY PRESIDENT: Please.

PN112

MR McCARTHY: Sorry.

PN113

THE DEPUTY PRESIDENT: My practice is not necessarily to delete material from witness statements in this Commission. As everybody knows we are not bound by the rules of evidence and I will determine in the end what's relevant or not. So if that is a signpost to future objections I propose to leave the material in. As I say I don't think that it has much bearing on what I ultimately decide.

PN114

MS DOUST: Might I just address you briefly, Deputy President, then on a large swage of material that commences at about 29 and continues on until about paragraph 44, and perhaps paragraph 33 might give you, Deputy President, a flavour of the tone and style of the material. It's material that we think doesn't amount to evidence about any matter relevant to the Commission which is the steps taken in respect of the vote, the way in which eligibility to vote was determined, the provisions of the agreement.

PN115

THE DEPUTY PRESIDENT: Sorry, where are you?

PN116

MS DOUST: I am sorry, at paragraph 29 and following. I'm sorry, paragraph 29:

PN117

Importantly the business did sell on the clearly understood condition that the employee parties had to - - -

PN118

MR McCARTHY: I just can't find your reference point.

PN119

MS DOUST: Paragraph 29, page 5.

PN120

MR McCARTHY: Paragraph 29 in the first witness statement?

PN121

MS DOUST: In the first witness statement.

PN122

MR McCARTHY: Paragraph 29 starts, "After considering the employees".

PN123

MS DOUST: Yes. "Importantly" – that's halfway down. I think to try and be as fair to Mr Ford as I can he appears from there onwards to be engaging in an attempt, a rhetorical argument as to why it is a blended and average approach should be accepted, and paragraph 33 for example on page 7 gives the Commission a sense of the tenor and tone of that material, and that carries on for some pages right through to page 10. There's a number of broad assertions made in there that are extremely difficult to unpack. We are content to accept that this is Mr Ford's honestly held views, but it seems to us that most of that slides into the nature of submission or argument, it's not giving evidence about matters that are relevant to the Commission, and it's not giving evidence about something that he's seen, heard, said, done, distributed or the like, rather an argumentative tone is used. But those are our concerns about those matters and it might shorten things if I just leave it on that basis and don't necessarily wade in, in cross-examination to attempt unpack all this.

PN124

MR McCARTHY: Your Honour, at least in relation to paragraphs 27 through to 31, and I am just looking quickly, which a significant part of it is included in the material just referred to by counsel, that is important evidentiary material being put by this witness and it is firsthand the knowledge because it's referring to, as I understand it, the material includes a reference to the fact that at or around the early stages there have been enterprise bargaining negotiations between the union, a significant number of employer representatives (indistinct) present and Mr Ford himself.

PN125

The union on behalf of the employees put forward the proposition that the company should agree to expand the proposed scope of the suggested new enterprise agreement from covering just ferry work to covering ferry work and (indistinct) tourism work. It includes also reference as I understand it to the company's response, the employer's response to that suggestion which was that it would, but it did so on certain qualification and that is that – and those sorts of matters are dealt with in this material, in the part of it - - -

PN126

THE DEPUTY PRESIDENT: Yes. I don't have to hear you any further, Mr McCarthy.

PN127

MR McCARTHY: It's completely - - -

PN128

THE DEPUTY PRESIDENT: The objection is overruled. I accept opinion evidence here all the time as we do. You can cross-examine if you require to cross-examine on this material.

PN129

MR McCARTHY: I call Mr Ford to the stand.

PN130

MS DOUST: I am sorry, there's one more objection in the second witness statement, Deputy President, and this is at paragraph 22.

PN131

THE DEPUTY PRESIDENT: Paragraph 22?

PN132

MS DOUST: Yes, I'm sorry. That's on page 5. You might see at the top of the page there's a sentence starting:

PN133

Those exchanged SMS text messages were between myself and the site MUA and employee representative Beau Chippendale.

PN134

THE DEPUTY PRESIDENT: I just need to find it. Yes, go ahead.

PN135

MS DOUST: So Mr Ford annexes some text messages that he refers to. After the words "Beau Chippendale" on the third line down – does your Honour have that?

PN136

THE DEPUTY PRESIDENT: Yes.

PN137

MS DOUST: There's a sentence starting:

PN138

Through my communications with Beau the business advised that from time, that time it would now seek to negotiate directly with its employees and its site employee representatives, et cetera, to make a new enterprise agreement.

PN139

This appears to be nothing more than Mr Ford's spin on the content of the messages, and in my submission the messages speak for themselves and they are the only evidence here of any communications. It's a matter for the Commission to determine what they signify and what their relevance is. There is of course a question in this matter as to the timing of the issue of the notice of employee representational rights by Noorton on 6 June 2017 and whether that was given after either Noorton had agreed to bargain or had initiated bargaining within the meaning of section 173. So this does go to a matter that's quite important.

PN140

THE DEPUTY PRESIDENT: Isn't he saying what the company did, it advised that it would now seek to directly negotiate with its employees? You don't dispute - - -

PN141

MS DOUST: We say the text messages speak for themselves and that there is a slight variation between the content of the text messages and - - -

PN142

THE DEPUTY PRESIDENT: You can cross-examine him about this matter.

PN143

MS DOUST: Please the Commission.

<RICHARD IAN FORD, SWORN [12.26 PM]

EXAMINATION-IN-CHIEF BY MR MCCARTHY [12.26 PM]

PN144

MR McCARTHY: Mr Ford, could you tell the Commission what your position within the company is?‑‑‑I'm the CEO of Noorton Pty Ltd.

PN145

Mr Ford, you made an initial witness statement in this matter. Do you have a copy of that witness statement with you?‑‑‑I do.

PN146

Can I confirm with you that the witness statement consists of 162 paragraphs?‑‑‑It does.

*** RICHARD IAN FORD XN MR MCCARTHY

PN147

Can I also confirm with you that you have attached a number of documents to your witness statement?‑‑‑I have.

PN148

Can I confirm that you have numbered the attached documents RF1 to RF26, is that correct?‑‑‑That's correct.

PN149

Can I confirm that the witness statement was signed by you on 15 December 2017?‑‑‑Yes, it was.

PN150

Mr Ford, you have also made a further witness statement in this matter. Do you have a copy - - -

PN151

THE DEPUTY PRESIDENT: Do you tender that statement?

PN152

MR McCARTHY: Sorry, yes, your Honour, if I can tender that witness statement as an exhibit.

PN153

THE DEPUTY PRESIDENT: I have dealt with the objections.

EXHIBIT #1 WITNESS STATEMENT OF RICHARD IAN FORD DATED 15/12/2017

PN154

MR McCARTHY: Is it necessary for me to also suggest the identification of each of the attachments separately?

PN155

THE DEPUTY PRESIDENT: No.

PN156

MR McCARTHY: Thank you, your Honour. Mr Ford, you have made a further witness statement in this matter I understand. Do you have a copy of that further witness statement with you?‑‑‑I do.

PN157

Can I confirm with you that that witness statement is of 66 paragraphs?‑‑‑Yes, it is.

PN158

Can I also confirm that you have attached a number of documents to your witness statement that you've numbered RF26 to RF36, is that correct?‑‑‑That's correct.

*** RICHARD IAN FORD XN MR MCCARTHY

PN159

Can I confirm that this witness statement is signed by you on 1 February 2018?‑‑‑That's correct.

PN160

Sorry, your Honour, could I tender that witness statement.

PN161

THE DEPUTY PRESIDENT: Yes. I have dealt with the objections.

EXHIBIT #2 WITNESS STATEMENT OF RICHARD IAN FORD DATED 01/02/2018

PN162

MR McCARTHY: Mr Ford, can you confirm that to the best of your knowledge and belief that the contents of these two witness statements when read together are true and correct?‑‑‑To the best of my knowledge I have noted one small discrepancy in witness statement 1, 43 and 44, relating to the number of times the NERR we have put this to a vote. I notice that the statement on 43, in paragraph 43 we said, "The employees have voted up three previous agreements", and in the statement at 44 there's the fourth time the employees have voted up, those numbers aren't correct. I believe it to be two – two previous occasions.

PN163

Your Honour, perhaps we could note that correction - - -

PN164

THE DEPUTY PRESIDENT: I am not quite sure what is being said.

PN165

MR McCARTHY: I think what's being said is that in paragraphs 43 and 44 Mr Ford refers to the fact that on four occasions employees voted in relation to a proposed enterprise agreement, when in fact the answer is two.

PN166

THE DEPUTY PRESIDENT: I see. All right, I will note that.

PN167

MR McCARTHY: Other than that is there anything else you believe you need to amend in your witness statement?‑‑‑No, there isn't.

PN168

Your Honour, as we all know there was an amount of documentation provided filed in this matter by the applicant following orders for production issued by the Commission on 8 February, and some of the material included in those documents I would like Mr Ford in his evidence to speak to. I don't know if we need to - - -

PN169

THE DEPUTY PRESIDENT: None of that material is in evidence yet, and until such time as it is - - -

*** RICHARD IAN FORD XN MR MCCARTHY

PN170

MR McCARTHY: I was going to ask if that material can be now - - -

PN171

THE DEPUTY PRESIDENT: But if it's not relied upon by the party that sought the notice to produce you might be asking questions about a matter that doesn't arise.

PN172

MR McCARTHY: The material itself, your Honour - - -

PN173

THE DEPUTY PRESIDENT: What you can do is if questions are asked about material that was produced under the notice which is not covered by the statements, then in re-examination you can ask about it, but it's a bit counterintuitive I might say that you are going to put documents in evidence which you haven't sought to produce in evidence, which you opposed, which was sought by the union. Do you see what I mean?

PN174

MR McCARTHY: I do, your Honour.

PN175

THE DEPUTY PRESIDENT: Yes.

PN176

MR McCARTHY: Your Honour, it may be self-evident, but if I could put that this matter is quite a complex one and on that basis I would ask for your permission to lead those parts of my client's evidence that we say bear on the critical facts and important points in this case, if you will allow me.

PN177

THE DEPUTY PRESIDENT: The evidence is the evidence, Mr McCarthy. I don't quite understand.

PN178

MR McCARTHY: What I would like to propose to do is ask some initial questions of the witness with a view to having him speak to and address aspects of the material that's before you.

PN179

THE DEPUTY PRESIDENT: No, that's out of order. If there are matters that arise, as you well know, that need clarification in re-examination then you are perfectly entitled to do that, but this isn't an opportunity to say more about evidence-in-chief that directions were issued so that you have that full opportunity. If I was to allow this to happen these sort of proceedings would go on for days. Unless, Ms Doust, you have some benevolent feeling at the moment to permit that course - - -

*** RICHARD IAN FORD XN MR MCCARTHY

PN180

MS DOUST: No, Deputy President, if there's material to be relied upon we would have wanted to be served with it in advance of the hearing.

PN181

THE DEPUTY PRESIDENT: That's entirely the reason why directions are issued. Yes.

PN182

MR McCARTHY: Your Honour, the witness statements and their attachments, the first witness statement and the second witness statement are now evidence, exhibits before the Commission, and at this stage we would seek to rely on those for the initial aspects of Mr Ford's evidence.

PN183

THE DEPUTY PRESIDENT: Thank you. Yes.

CROSS-EXAMINATION BY MS DOUST [12.35 PM]

PN184

MS DOUST: Thank you. Mr Ford, in the course of making this application to the Commission you have provided the following documents, haven't you; first of all the application for approval, the F16 document. Do you agree with that?‑‑‑Yes. Yes, I have.

PN185

You have also provided a statutory declaration which was the F17 document?‑‑‑Yes, I have.

PN186

And you have provided the two witness statements which are now exhibit 1 and 2?‑‑‑That's correct.

PN187

All right. Can I ask you this; did you understand in each case that it was important to be honest and accurate in what you included in those documents?‑‑‑To the best of my knowledge that's – that's the case, those are honest and accurate.

PN188

You understood in each case that it would ultimately be you as the person who signed off on the document who would be answerable for the contents of the document?‑‑‑Yes, I did.

PN189

Are you satisfied that all of those documents that I have referred to, the F16 and the F17 and the two witness statements are truthful and accurate?‑‑‑To the best of my knowledge, yes.

*** RICHARD IAN FORD XXN MS DOUST

PN190

I will just deal briefly at the outset with the correction you just made in your witness statement about the previous votes that had been taken on an agreement. Do you recall giving that evidence?‑‑‑Yes, I do.

PN191

And that's at paragraph 44 of your witness statement?‑‑‑Yes.

PN192

You are suggesting there that you – can I start here; the initial draft of that paragraph prior to your correction suggested that the final agreement that is before the Commission now is before the Fair Work Commission for approval – I'm sorry, for the fourth time the employees voted up a proposed agreement. You're suggesting there that there were four votes of employees on a proposed agreement, aren't you, in the initial draft?‑‑‑In the initial draft.

PN193

In fact the case was that there were only two such votes?‑‑‑This – this was a long process and we went to vote a number of times. We didn't conclude the vote process on a number of occasions - - -

PN194

Let me just clarify, just stop you for a second there, Mr Ford. In fact the case was there were two votes?‑‑‑That's correct, that's why I have corrected that number.

PN195

All right. How is it do you think when you sat down to write your statement you could have got the number of votes that have been held wrong by an order of two times?‑‑‑During the process we actually notified the employees on the four times that we were going to vote and we withdrew two of those. On two of those occasions just prior to the vote we withdrew them. That's where my error was, in that, the count, that we actually had proceeded to vote but hadn't actually concluded the vote on those two previous occasions.

PN196

Is it fair to say this about that matter, rather than having focused on what actually happened and what the facts were you focused on your own frustrations about attempts to do these things?‑‑‑No, it wasn't my frustrations, it was what the employees had perceived were the notifications and the process that they've been through to get to this stage, including – including the company's.

PN197

I will ask you, Mr Ford, when you give evidence today to the Commission please just let us know your knowledge and your opinions and what you observe and know and don't attempt to speak for anyone else in the piece. Would you agree to that?‑‑‑That's fine.

PN198

Thank you. You're a director of Noorton Pty Ltd?‑‑‑I am.

*** RICHARD IAN FORD XXN MS DOUST

PN199

You commenced as a director and company secretary on 19 July 1995, is that correct?‑‑‑I don't have that record in front of me. If that's what the record states then that will be the date. I don't have that data in front of me to confirm that.

PN200

But you agree about 1995?‑‑‑Yes, I do agree.

PN201

Was the company established at your instigation?‑‑‑Yes, it was.

PN202

There is currently no other directors in that company as being in their roles for as long as you?‑‑‑No, it hasn't.

PN203

You hold a number of ordinary shares and E-class shares in the company?‑‑‑As of today, no, I don't.

PN204

You don't hold any shares in the company today?‑‑‑No, I don't because there's been a transaction in the interim that has changed the shareholding of the company.

PN205

You no longer have any shares in Noorton Pty Ltd?‑‑‑No, I don't have any shares in Noorton Pty Ltd.

PN206

When did this occur?‑‑‑The 19 January 2018.

PN207

Who were the shares transferred to?‑‑‑NRMA Marine Pty Ltd. I may be corrected on the exact name of the company, but NRMA Marine.

PN208

Are they now the majority shareholder in the company?‑‑‑Yes, they are.

PN209

They have the controlling interest now?‑‑‑Yes, they do.

PN210

That's a fairly major change in the affairs of the company, isn't it, Mr Ford?‑‑‑Yes, it is.

PN211

Can I just ask, that occurred prior to your second witness statement, didn't it, made on 1 February 2018?‑‑‑Yes, it did.

*** RICHARD IAN FORD XXN MS DOUST

PN212

Any reason why you didn't mention this fairly significant change in Noorton's position in that second witness statement?‑‑‑It was my understanding that this matter is in relation to the situation as at the date the vote was made for the EBA, and that was the situation at the time that the vote was made back on 11 July 2017.

PN213

Can I suggest this to you, you have set out at length in your witness statement about the difficulties that you had as a company getting the contract and then trying to reach an enterprise agreement and why it was so important, because you're competing in the commercial tourism industry. You agree you have addressed all those matters in your statement?‑‑‑Yes, I have.

PN214

Do you not think that what the Commission makes of those matters might have been affected by hearing that the company has now changed hands from ownership by yourself and other members of your family to NRMA?‑‑‑As I said this matter was – my understanding is this matter was negotiated and voted and that's the situation at the time of the vote, and that's what I understood we were discussing here today. I can't predict what happens in the future and I couldn't at the time of the vote predict what was going to happen in the future.

PN215

Yes. Can I ask you, do you have any role in Noorton apart from being a director?‑‑‑I'm not sure of the question. In terms of company role or - - -

PN216

Any role in respect of the company?‑‑‑I am CEO of the family, still running Noorton Pty Ltd and running Manly Bus Ferry.

PN217

You are CEO of Noorton Pty Ltd?‑‑‑Noorton.

PN218

Is that right?‑‑‑No, actually - sorry, I'll correct that. I'm now a general manager of Noorton, an employee of NRMA Pty Ltd - Marine.

PN219

Can you just tell me now what are your day to day responsibilities in the management of that company?‑‑‑I manage - I still manage the company in the operations, employment and the day to day operations, as I did previous to the transaction, and I report to my employer, which is NRMA Marine Pty Ltd.

PN220

Who is the person within NRMA Marine that you are answerable to?‑‑‑I answer to the board of Manly - they've established a Manly Fast Ferry board, which I don't have all the details of.

*** RICHARD IAN FORD XXN MS DOUST

PN221

You said, I think, that employment was one of your responsibilities. I just want to nail down over what period that has been your responsibility within Noorton Pty Ltd. Does the term "employment" there include all industrial relations matters?‑‑‑Well, I've been in charge of these industrial relations matters with the advice of Mr McCarthy.

PN222

Yes?‑‑‑Right up until 19 January.

PN223

Is there anyone within Noorton who, in your view, is better acquainted with the company's affairs, and I will limit that in time, for the period April 2015 to date?‑‑‑Affairs in relation to industrial relations?

PN224

Yes?‑‑‑No.

PN225

I just want to ask some things about Manly Fast Ferry Pty Ltd. I am sorry, just let me clarify, you retain your directorship of Noorton Pty Ltd, do you, it's just that you've divested your shareholding?‑‑‑I believe, yes, I believe that's the case.

PN226

When you say "believe", have you - why can't you be clear about that?‑‑‑Because I haven't got all the documents in front of me in relation to this, so, to be clear, I would like to just check because the transaction is very new and this - we've been focusing on the historical information in this and position coming up until the vote and our statements.

PN227

Are you saying at the moment you can't be sure whether today you are a director of Noorton Pty Ltd?‑‑‑I said I would like to check before I answer that question.

PN228

All right. Manly Fast Ferry Pty Ltd, are you a director of that company at the moment?‑‑‑The same answer as to Noorton. I'd like to check on what they're doing with that, but, at the time of the vote, I was a director of Manly Fast Ferry and up until 19 January 2018.

PN229

Manly Fast Ferry wasn't registered until January 2009, was it?‑‑‑I haven't got that date in - - -

PN230

Or about that time?‑‑‑I haven't got the date in front of me, but if that's the records, then that sounds about right.

PN231

Substantially after Noorton Pty Ltd was established?‑‑‑Yes.

*** RICHARD IAN FORD XXN MS DOUST

PN232

Do you accept that?‑‑‑It sounds about right because it was 2009 when the first Fast Ferry contract.

PN233

Yes. And with that company, you commenced as director and company secretary from the date of registration, didn't you?‑‑‑Yes, I did.

PN234

Again, was that a company that was established at your instigation?‑‑‑Yes, it was.

PN235

At one stage, I think it had been suggested that Noorton Pty Ltd held all of the shares in Manly Fast Ferry Pty Ltd?‑‑‑That's correct.

PN236

Is that still the case as a result of this transaction that's taken place?‑‑‑I am not aware today of what NRMA have done with that structure, so I can't answer for that, but up until 19 January, that was the case.

PN237

Are NRMA and their lawyers the people who are in charge of managing that whole transaction?‑‑‑Yes.

PN238

Giving effect to it?‑‑‑Yes, they are.

PN239

Do you have any other role with Manly Fast Ferry Pty Ltd, with that entity, apart from director and company secretary?‑‑‑No, I don't, except operationally I have the role.

PN240

What role is that?‑‑‑I would be CEO of Manly Fast Ferry Pty Ltd as well.

PN241

Would be or are?‑‑‑I was up until - if I'm speaking up until 19 January, if I can put a fence on 19 January, after that date, I need to get clarification on. I know my position now. I'm still general manager, but we're still having a first board meeting to change the structure or - so that isn't locked in yet.

PN242

For the period April 2015 through to July 2017, can you tell me what were your day to day responsibilities in the management of that company?‑‑‑I was in charge of managing most of the company with my brother. We shared the responsibilities, but I was mostly in charge of the employment, industrial relations, marketing operations.

*** RICHARD IAN FORD XXN MS DOUST

PN243

Is there anyone associated with Manly Fast Ferry Pty Ltd - and I'm talking about the entity here - who, in your view, is better acquainted with the company's industrial relations and employment affairs?‑‑‑No, no, I believe I'm the person who's most across that area.

PN244

All right. Manly Fast Ferry Pty Ltd is the company that was party to the contract or is party to a contract with Transport for New South Wales; it's that entity that's the party to it?‑‑‑After the fast ferry contract, yes, it is, for the provision of the fast ferry.

PN245

That is in respect of the ferry service as defined in that contract?‑‑‑That's correct.

PN246

And you accept, don't you, the ferry service is defined in that contract as a high speed ferry service along the route with a maximum scheduled travelling time of 20 minutes for each separate scheduled trip between the relevant wharves?‑‑‑That sounds correct, yes.

PN247

And the route is defined as that between Circular Quay and Manly?‑‑‑Yes.

PN248

Under that contract, Manly Fast Ferry Pty Ltd had no right to assign its interest in the contract without Transport for New South Wales' permission; do you agree with that?‑‑‑That's correct.

PN249

Has Transport for New South Wales given permission for the assignment by Manly Fast Ferry Pty Ltd of its interest in the contract?‑‑‑Yes, it has.

PN250

Is that an assignment to NRMA that has taken place - - -?‑‑‑That's correct.

PN251

- - - prior to July - I'm sorry, I'll finish that sentence - it looks terrible on transcript. That's an assignment that's taken place as a consequence of the transaction with NRMA and Noorton on about 19 January 2018; is that right?‑‑‑That's correct.

PN252

As at July 2017, had Transport for New South Wales given permission for the assignment of any interest under that contract?‑‑‑No, it hadn't.

PN253

You accept this: the only entity entitled to operate that service and make a profit from the provision of that ferry service was Manly Fast Ferry Pty Ltd?‑‑‑That's correct.

*** RICHARD IAN FORD XXN MS DOUST

PN254

In addition to that service, Manly Fast Ferry Pty Ltd also has the benefit of an exemption from Transport for New South Wales in respect of certain regulatory provisions in respect of the Manly, Darling Harbour, Nelson's Point ferry service?‑‑‑That's correct.

PN255

So no party other than Manly Fast Ferry Pty Ltd, that entity, is entitled to operate that service and make a profit from it, is it?‑‑‑That's correct.

PN256

I just want to take you to the F17 that you prepared for the purpose of support of the application in this matter. Do you have a copy of that with you?

PN257

THE DEPUTY PRESIDENT: If you are going to a new subject matter, we might adjourn now until 2 pm. Thank you.

<THE WITNESS WITHDREW [12.55 PM]

LUNCHEON ADJOURNMENT [12.55 PM]

RESUMED [2.00 PM]

<RICHARD IAN FORD, RECALLED [2.00 PM]

CROSS-EXAMINATION BY MS DOUST, CONTINUING [2.00 PM]

PN258

MS DOUST: Yes. Mr Ford, I'll go back in a second to the entities that I was questioning you about before the lunchbreak, but at the moment I just want to ask you a couple of questions about a couple of the vessels in the company's fleet: the first is Seacat 1. Are you familiar with that vessel?‑‑‑I am.

PN259

Is that vessel operating today?‑‑‑As in actually today? One of the Seacats is actually undergoing an engine change today, so I am not up on whether it is Seacat 1 or Seacat 2, so in relation to operating today I can't confirm, but one of the Seacats is out of operation, one of them is in operation today.

PN260

You know there has been a request in the – sorry. There has been an order made by the commission in these proceedings for the production of certain documents?‑‑‑Yes.

PN261

One of the categories of documents in respect of which an order has been made is certificates of survey for the vessels?‑‑‑Yes.

*** RICHARD IAN FORD XXN MS DOUST

PN262

And is it your evidence that there is no certificate of survey that can be found for Seacat 1?‑‑‑No, it is my evidence that I wasn't able to source the document over this weekend.

PN263

Why is that?‑‑‑I simple ran out of time to do it this weekend and I didn't realise that I had missed that particular vessel survey certificate.

PN264

But the vessel, when it operates, moved between, what, Manly and Circular Quay and Darling Harbour and various other - - -?‑‑‑It operates on the harbour, yes.

PN265

And at points along the way you would have had an opportunity to drop off a copy of that document, wouldn't it - - -?‑‑‑Yes.

PN266

- - - to your staff members?‑‑‑Yes.

PN267

So is that something that can be obtained overnight and provided?‑‑‑Yes, it can.

PN268

Second thing I want to ask you about is the certificate of survey for Totally Wild?‑‑‑Yes.

PN269

That is a vessel your company operates, isn't it?‑‑‑It operates but the reason I didn't include that vessel is that it doesn't operate with a GPH, so it is not – it is not covered under this EBA.

PN270

Are there any hosts or hostesses or juniors on that vessel?‑‑‑No, there is not.

PN271

And you read the order, did you, as limited to the vessels that you considered relevant to the proceedings?‑‑‑I don't have a copy of the order with me, but that was my understanding.

PN272

Well, did you look at the order yourself?‑‑‑I did look at the order myself.

PN273

And did you not see that you were asked to produce any document - or you were required to produce, I'm sorry, any document necessary to show the vessel surveys for all vessels which employers of the applicant are employed to perform work on?‑‑‑Yes, and I took that to mean the GPHs in relation to this application.

*** RICHARD IAN FORD XXN MS DOUST

PN274

Can I go back, Deputy President, to the documents that gave you, the timesheets, 1 and 2?

PN275

THE DEPUTY PRESIDENT: Yes.

PN276

MS DOUST: I wonder if they might be marked "MFI 1" and "MFI 2" respectively?

PN277

THE DEPUTY PRESIDENT: All right. Well, they're covered by the confidentiality provision.

PN278

MS DOUST: Yes, I accept that.

PN279

THE DEPUTY PRESIDENT: Yes. So I'll mark documents for the moment, yes.

PN280

MR McCARTHY: No, I'm just getting a copy of the document, Your Honour.

PN281

THE DEPUTY PRESIDENT: A confidential MFI 1 is the first dated document June 26 and confidential MFI 2 is the second document headed July 10.

PN282

MS DOUST: Yes. Might the witness – might we give the witness copies of those documents? Could you mark them MFI 1 and MFI 2, please? No, that is MFI 1 (indistinct) yes.

PN283

(To witness) I'll just ask you to go to MFI 1, would you please, Mr Ford. Would you look at the pagination at the bottom of that page of that document which is 34 of 60? Do you have that document?‑‑‑I do.

PN284

And I don't wish you to make any reference to the name of the employee. Do you understand that?‑‑‑Yes.

PN285

And can I just clarify: your concern in respect of the confidentiality of these documents goes to the names of the individuals, doesn't it?‑‑‑It goes more than the names of the individual.

PN286

What is it otherwise about, say, the details on this page, page 34, that you say should be treated as confidential by the commission?‑‑‑Well, this is how we operate our business, this information is commercially confident to the operator.

*** RICHARD IAN FORD XXN MS DOUST

PN287

That you roster employees to perform shifts is commercially confidential?‑‑‑How we roster the employees to perform the shifts, yes, is commercially confidential.

PN288

Do you think there is some value in that concept (indistinct) know other employers ever thought to roster employees?‑‑‑How they roster their employees and how we roster out employees is different, and how we roster our employees is information commercially confident to our company.

PN289

I don't want you to make any mention of any information in this page, but do you have a concern about confidentiality about the fact that the document adopts a certain format that it has boxes or tables on it? Is that confidential of itself?‑‑‑No, it's not.

PN290

Well, if you look at the top row on the column second from the left - do you have that?‑‑‑I do.

PN291

You see the reference there?‑‑‑Yes.

PN292

Do you say that in respect of what is referred to in that row, that that is something not covered by your proposed agreement?‑‑‑I'm sorry, could you be more specific? In the top row? Are you talking about the row that days, "Date, role, title"?

PN293

No, the row just below that?‑‑‑Where it outlines the shift?

PN294

Yes?‑‑‑Yes, I believe that is confidential.

PN295

Yes, the question I was asking you about though is – are you saying that the information here shows work that was performed which was not covered or would not be covered by your proposed agreement?‑‑‑Yes, there are certain shifts on that roster that would not be covered by this agreement.

PN296

Please identify which ones?‑‑‑Shifts on Monday 26.

PN297

Yes?‑‑‑And shifts on Friday 07/07.

PN298

Yes?‑‑‑Shifts on Tuesday 04/07.

*** RICHARD IAN FORD XXN MS DOUST

PN299

Yes?‑‑‑Shifts on Monday 03/07.

PN300

Yes?‑‑‑And shifts on Tuesday 27/06.

PN301

Yes?‑‑‑And I think I've covered all shifts.

PN302

So let us just go through: the first three shifts that are set out there, going from the top of the page down?‑‑‑Yes, that's correct.

PN303

Then the shift on 03/07, the second entry?‑‑‑Yes – no – the second entry on the 3rd, yes, sorry, yes.

PN304

Shift on 04/07?‑‑‑Yes.

PN305

Shift on 07/07?‑‑‑The second shift on 07/07.

PN306

Yes. Now, just want to come back. Do you have a copy of the proposed agreement with you? If you don't have one or - - -?‑‑‑I don't believe I have one.

PN307

All right, we might be able to provide one.

PN308

THE DEPUTY PRESIDENT: That has been attached, the form 17, wasn't it?

PN309

MS DOUST: Yes. But I'm not sure the witness has it. We have a clean one if there is not one there with that, Mr Ford?‑‑‑Yes.

PN310

Now, can I just take you to the coverage calls of that agreement, please, on page 5, clause 5E? Is your view about coverage in the examples that we just discussed arising in respect of the classification of the work rather than the definition of the vessel?‑‑‑The classification of the work in coverage covers the areas and the operations. The references I'm making that aren't relevant is the role that particular employee is doing at the time is not covered by this agreement.

*** RICHARD IAN FORD XXN MS DOUST

PN311

Yes, yes. But you don't say, do you, that that vessel would never be a vessel on which either a general purpose hand or a host or a hostess might work on?‑‑‑That vessel historically has been a vessel that the general purpose hand or host does not work on – historically. I can't say that in the future that wouldn't happen, but historically, since we've owned it, we haven't had a general purpose hand or host on that vessel.

PN312

Thank you. Now, you can put that side now, I've finished dealing with that. I come back now to the entities that you're associated with. Do you have your F17 handy there, Mr Ford?‑‑‑I'm not sure which one you refer to as F17. Is it labelled F17 on the front?

PN313

So statutory declaration in respect of this application.

PN314

MR McCARTHY: (Indistinct) just trying to help here. No, you can explain it.

PN315

MS DOUST: Sorry, do you have a copy of that there with you?‑‑‑The application for approval for the Manly Fast Ferry?

PN316

No, that should be in F16, but there should be – well, I think you referred to it earlier; there is an F17 document form, F17 employers statutory declaration, that should be the heading. No, I'll give you a clean one. Might I hand the witness a copy of that document, extraction of a promise that will be returned ultimately.

PN317

(To witness) Now, do you recognise that document?‑‑‑I do.

PN318

You see, this is a document you completed and signed, correct?‑‑‑With the insistence of Mr McCarthy, yes.

PN319

Yes, but you were the person that ultimately executed it or made the declaration on pain or penalty, didn't you?‑‑‑Just looking for my signature.

PN320

I'm sorry, it is at page 21 of 31?‑‑‑I can't find my signature on that. Yes, the signature is there then this is my call.

PN321

Just if you look at the numbering down on the bottom of the page, Mr Ford, there should be a notation in the bottom right-hand corner, 21 of 31?‑‑‑Yes, that is correct, yes.

PN322

So you're satisfied now this is a document you signed?‑‑‑Yes.

PN323

And you declared it under the Statutory Declarations Act?‑‑‑Yes.

*** RICHARD IAN FORD XXN MS DOUST

PN324

You declared in there that Noorton Pty Ltd was the legal name of the employer and that the trading name was Manly Fast Ferry?‑‑‑Yes.

PN325

Were you suggesting there that Noorton Pty Ltd was trading as Manly Fast Ferry?‑‑‑I'm suggesting there that the legal name is "Noorton Pty Ltd", the name that people refer to it is "Manly Fast Ferry".

PN326

No, I'm asking you are you suggesting there that "Noorton Pty Ltd" was trading as "Manly Fast Ferry"?‑‑‑No, I'm not. I'm suggesting that "Noorton Pty Ltd" is the legal name and the name that people understand we trade as is "Manly Fast Ferry".

PN327

Who is the "we" trading as?‑‑‑"We" is both "Noorton Pty Ltd" and "Manly Fast Ferry Pty Ltd".

PN328

So Noorton Pty Ltd in part trades as "Manly Fast Ferry", does it?‑‑‑No, it is the understood name on Sydney Harbour, but people associate out company as "Manly Fast Ferry".

PN329

Mr Ford, let me just take you to a couple of documents, if I might. Might the witness be shown a copy of Mr Garrett's statement? Do you have a clean copy? No, that is fine, thank you. Might the witness be shown that?

PN330

(To witness) Just wonder whether you would go to page 113 of that statement. And do you see the numbering is in the bottom right-hand corner?‑‑‑Yes, I do.

PN331

You see there how the employer is characterised in the top of that document?‑‑‑I do.

PN332

Is that a document you prepared?‑‑‑Yes, it is.

PN333

It says there, "Noorton Pty Ltd trading as Manly Fast Ferry"?‑‑‑Yes.

PN334

So you were suggesting that Noorton Pty Ltd was operating a business under the trading name of "Manly Fast Ferry". Is that correct?‑‑‑Well, I go back to my previous statement as that is what is understood. If you ask our staff on the harbour who they work for they say "Manly Fast Ferry" despite the fact that they get their payslips, group certificates and rosters from Noorton Pty Ltd, that is the vernacular that is used on Sydney Harbour, and that is what we're proposing there.

*** RICHARD IAN FORD XXN MS DOUST

PN335

Well, when you are filling out the form F17, you understood, didn't you, that that wasn't asking you about what the employee's understanding was. Didn't you understand that?‑‑‑Yes, yes, and that is what (indistinct).

PN336

It was asking you whether or not that business was operating under a different trading name to its own name – I'm sorry, that company was operating under a different name to its own name?‑‑‑And that is – that is understood on the harbour, on Sydney Harbour.

PN337

I'll take you to page 120 of that document, if I might. Do you see the top of that document there?‑‑‑Yes, I do.

PN338

Do you recognise that document?‑‑‑Yes.

PN339

That is a draft agreement that was provided to Mr Garrett from the MUA, wasn't it?‑‑‑From the MUA? To the MUA?

PN340

Sorry, Mr Garrett from the MUA. It was provided to him?‑‑‑Yes, it was.

PN341

And that document also refers to Noorton Pty Ltd trading under the name Manly Fast Ferry?‑‑‑Yes, it does.

PN342

So you appreciate the gravamen of what I'm asking you about, don't you, Mr Ford?‑‑‑I appreciate that the – this agreement and negotiation has been going on for some time. We operate under two company names on Sydney Harbour but it is grouped under one commonly understood name on Sydney Harbour, and that is – that has - through the process, when we originally started with Noorton Pty Ltd, we were going to change the employees to Manly Fast Ferry Pty Ltd when – once this – when this agreement - - -

PN343

Mr Ford, I'll stop you there. The gravamen that I'm referring to is that a company that carries on business under a business name that isn't registered to it on the business name's register commits an offence. You're familiar with that provision, aren't you?‑‑‑No, I'm not.

PN344

You're not familiar with the fact that a company is not entitled to carry on business under a trading name if it doesn't have that trading name registered?‑‑‑Well, the Many Fast Ferry Pty Ltd is wholly owned by Noorton Pty Ltd, so it is wholly owned.

*** RICHARD IAN FORD XXN MS DOUST

PN345

Well, that is an entity. You understand the difference between an entity and a trading name, don't you?‑‑‑I do.

PN346

And you accept, don't you, that Noorton Pty Ltd hasn't registered the name "Many Fast Ferry" to it?‑‑‑No, it hasn't.

PN347

And that is because Noorton Pty Ltd isn't carrying on any business of receiving revenue for the provision of services, is it?‑‑‑It is, not the services from Manly Fast Ferry but it is - - -

PN348

Not the ferry services themselves?‑‑‑But it does carry on business with the provision of revenue separate to the Manly Fast Ferry.

PN349

Does Noorton get its revenue from anything other than the provision of labour to Manly Fast Ferry?‑‑‑Yes, it does. It gets its revenue from the provision of tourist services on Sydney Harbour.

PN350

So it takes some of the ticket revenue in the business?‑‑‑Well, it takes the revenue from the tourist services in the business.

PN351

And Manly Fast Ferry takes other revenues?‑‑‑From the ferry services.

PN352

Nonetheless, are you saying that you never appreciated that a company carrying on business other than a name that is registered to it commits an offence?‑‑‑In the market we don't carry on business in separate names. This here was a result of the changes, and I – and because we weren't – this was in negotiation, it was never actually trading, and it was to go into place then I wasn't aware that we were doing anything wrong.

PN353

Mr Ford, I'd just like to take you through a couple of references in Mr Garrett's statement, first of all: paragraph 120, do you see the characterisation there of Noorton Pty Ltd trading under the name Manly Fast Ferry?‑‑‑I'm sorry, I've got to get to 120.

PN354

I thought you had it in front of you just before?‑‑‑Is it on page 121?

PN355

Yes, 120, it is a draft agreement, it is on the left-hand side?‑‑‑Sorry, I thought you were saying "statement 120", page 120.

*** RICHARD IAN FORD XXN MS DOUST

PN356

No, do you see there is a reference, "Noorton Pty Ltd trades under the name 'Manly Fast Ferry'"?‑‑‑Yes, I do.

PN357

Now, that is not a reference that got in there without you being aware of it, is it?‑‑‑I may have overlooked that on this draft, but this agreement wasn't put to a vote and it wasn't finalised. It was a draft agreement.

PN358

All right. Well, let us just see whether or not you might have overlooked this issue again. Can I ask you to go to page 246 of Mr Garrett's statement which is PG18? You recognise that document?‑‑‑Yes, I do.

PN359

It is an email from you to a staff member, isn't it?‑‑‑Yes, it is.

PN360

And you've signed it off on the following page?‑‑‑Yes, I have.

PN361

You sent it and you drafted it, didn't you?‑‑‑With the assistance of Mr McCarthy, yes.

PN362

Did Mr McCarthy write in the bit about Noorton Pty Ltd TA Manly Fast Ferry in the signature on the second page?‑‑‑I can't recall.

PN363

But ultimately you send it out under your email?‑‑‑Ultimately I sent it off, yes.

PN364

You take responsibility for it, don't you?‑‑‑Yes, I do.

PN365

And was that just another oversight, was it?‑‑‑Yes, it appears to be.

PN366

All right. Let us just go then to page 260 of Mr Garrett's statement. This is information that you provided, isn't it, to staff in respect of the proposed vote on the enterprise agreement?‑‑‑Yes, it is.

PN367

And that is PG23 for the record on page 260 of Mr Garrett's statement. Is this a document you prepared?‑‑‑With the assistance of Mr McCarthy, yes.

PN368

You ultimately sent it out though, didn't you?‑‑‑Yes.

*** RICHARD IAN FORD XXN MS DOUST

PN369

And you refer to Noorton Pty Ltd trading as Manly Fast Ferry both in the opening text of that letter, if we can call it that – you see that reference up the top?‑‑‑Yes, I do.

PN370

And you sign it off on that basis as well?‑‑‑Yes, yes, and - - -

PN371

Was that an oversight?‑‑‑Well, it goes to - - -

PN372

Were you intending to convey something about Noorton's interest in the Manly Fast Ferry's Pty Ltd's business?‑‑‑No, it wasn't an oversight in relation to the understanding of the crew and our employees because our employees understand that they work on Manly Fast Ferry. The agreement - - -

PN373

No, no, Mr Ford, do you recall just before lunchtime I asked you - - -?‑‑‑Yes.

PN374

- - - whether in the evidence you gave you would refrain from expressing a view about what someone else was thinking? Remember your promise to do that?‑‑‑No, this is a view of what I believe.

PN375

All right. Well, what I'm asking you is that document has two references to Noorton Pty Ltd trading as Manly Fast Ferry. Are you saying that they just got in there completely by mistake?‑‑‑No, I'm not. I'm saying I put them in there because our employees understand the name of the agreement is "Manly Fast Ferry", so the consistent reference to Manly Fast Ferry with Noorton Pty Ltd being the employer has them understand what we're talking about because it is a Manly Fast Ferry agreement for Sydney Harbour Services, on-board crew, GPH and hosts enterprise agreement. "Noorton Pty Ltd" is the employer. "Manly Fast Ferry" is the agreement.

PN376

I'll ask you to go to page 261, if you would. You see that document?‑‑‑I do.

PN377

That is also a notice that you sent out to employees, is it?‑‑‑Yes, it is.

PN378

You accept responsibility for this document?‑‑‑Yes, I do.

PN379

I refers at the top that Noorton Pty Ltd is trading as Manly Fast Ferry?‑‑‑Yes.

*** RICHARD IAN FORD XXN MS DOUST

PN380

Do you accept now that that is not actually a correct and truthful statement about Noorton Pty's activities?‑‑‑I accept that it is – Noorton doesn't trade as "Manly Fast Ferry" to in – in the relationship with the revenue and income, but I still maintain that to our employees the agreement is Manly Fast Ferry.

PN381

All right. Now, let me just ask you this though: can you point to any document prior to 6 June 2017 where you have described Noorton Pty Ltd in those terms?‑‑‑In which terms? In - - -

PN382

Noorton Pty Ltd trading as Manly Fast Ferry?‑‑‑I would have to spend some time to go back through the documents.

PN383

Is it possible that this is a practice that you have adopted once you became aware in, say, late May 2017 that you wish now to proceed on a basis that Noorton Pty Ltd be respondent to an enterprise agreement?‑‑‑No, that is not the case at all.

PN384

At around about that time, May 2017, did you have some of these discussions on foot about sale of the business? Were they in the pipeline?‑‑‑Yes.

PN385

With the same party that ultimately executed the sale or a different party?‑‑‑Different party.

PN386

So when did those discussions commence?‑‑‑Can I answer your previous question?

PN387

Which question would that be?‑‑‑You asked if this was a planned position to change to Noorton Pty Ltd and purported to be as Manly Fast Ferry.

PN388

What is your answer to that?‑‑‑No, that wasn't the case.

PN389

Right. Let us go back to the question that I was asking: when did these negotiations with NRMA Pty Ltd start – or NRMA Marine something; what is the actual entity?‑‑‑NRMA Marine. That is commercially confidential. I can't disclose that here.

PN390

Now, I think you have agreed, haven't you, Noorton Pty Ltd hasn't registered the business name "Manly Fast Ferry"?‑‑‑I have agreed that.

*** RICHARD IAN FORD XXN MS DOUST

PN391

Thank you, I don't need to ask you anything further about that. Just want to go back to the employment of employees in this business. In the proceeding before the commission you understand the commission made an order for the production of any letter of employment and/or engagement of the employees who were offered a vote in the ballot?‑‑‑Yes.

PN392

Do you say there is nothing to produce that meets that description?‑‑‑Yes.

PN393

You're quite certain that there has never been a letter of offer issued to any one of the employees who fall within the cohort who were offered a ballot?‑‑‑I don't believe there is any document that the GPH is – or host that falls within this, I'm not aware of them. I can't recall any documents. I did put out documents to other classifications, but not to this classification.

PN394

No, I'm just dealing with the letters, just dealing. Are you saying that there were emails that offered employment to the employees?‑‑‑Not from me.

PN395

You think it is possible there might have been emails from somebody else to employees that made the offers of employment?‑‑‑There may have been.

PN396

Did you not check the records of Noorton Pty Ltd to see whether such documents existed? Did you take the view that "letters" simply meant a document that has been sent in the post?‑‑‑I was of the view that it was documents prepared by me as the director to send out to staff at GPHs.

PN397

I'm sorry, did you exclude from your enquiries in relation to the order to produce documents that might have been produced by a member of staff in the company or some other person?‑‑‑I didn't make all of the documents. As far as I'm aware, all the documents that get sent out get sent through me. There are emails that get sent out from staff members, but I don't – I didn't check through everybody's emails of what they may and may not have sent out at the time.

PN398

Let me just ask you this: do you exclude the prospect that there were letters of offers, offer of employment – I'm sorry, I withdraw that. Can you exclude the prospect that there were emails offering employment sent out to any of the employees that fall in this cohort?‑‑‑I can't answer for all of my employees of what they may have sent out with an email.

PN399

MR McCARTHY: Your Honour, must say I have to object because he - - -

PN400

THE DEPUTY PRESIDENT: Well, he has answered the question.

*** RICHARD IAN FORD XXN MS DOUST

PN401

MR McCARTHY: Well, only in the sense that the order itself makes clear that it is for letters. The proposition being put here is that an email is a letter, offer of employment.

PN402

MS DOUST: No, it is not.

PN403

MR McCARTHY: I'm sorry?

PN404

MS DOUST: No, it clearly wasn't.

PN405

MR McCARTHY: What clearly wasn't?

PN406

MS DOUST: Wasn't (indistinct) the proposition. Proposition's not being advanced, Deputy President, that an email is a letter. I'm just enquiring whether there are in fact documents that meet the description of an offer of employment, but because they have some other format they haven't been produced in response to this call. I don't say that there's necessarily been a contravention of the order if an email hasn't been produced, I just wish to ascertain whether they exist: that is what the question is directed to, not suggesting that there has been a contravention.

PN407

MR McCARTHY: Yes, the implication of what is being asked is the suggestion that the order has been breached.

PN408

THE DEPUTY PRESIDENT: It has just been disavowed.

PN409

MS DOUST: Mr Ford, can you exclude the possibility that there were contracts of employment that weren't in some sort of letter form? So I'm talking about not letters, not emails but actually a written document contract between two parties?‑‑‑I just answered that. I can't confirm or deny it because I haven't checked with what emails were sent out by our – by my staff.

PN410

What documents do you say positively exist, if at all, recording the agreement between each of the relevant employees and Noorton Pty Ltd to enter into an employment relationship?‑‑‑Their payslip.

PN411

No, no. I'm asking you what document records the agreement. So you understand a contract is entered into by making an offer and someone accepting?‑‑‑Yes, I do, yes.

*** RICHARD IAN FORD XXN MS DOUST

PN412

You understand that?‑‑‑I do understand that.

PN413

Are there any documents that Noorton Pty Ltd has in its possession, custody or control that record the entry into that agreement with employees?‑‑‑No, I'm not aware of those documents.

PN414

How do employees go about seeking employment with Noorton Pty Ltd – prospective employees, shall I say?‑‑‑They contact the company by phone or in person and they speak to one of our staff and those staff then discuss with them the arrangements and usually put them on some trial shifts and from there they send through the required paperwork to the office.

PN415

Is there an application form that prospective employees are required to complete?‑‑‑Yes, some of them (indistinct) an application form.

PN416

But not all of them?‑‑‑I can't answer whether all of them do or not. I haven't checked all the documents.

PN417

Does Many Fast Ferry Pty Ltd adopt a different approach in the way it goes about engaging anyone in its employ?‑‑‑Many Fast Ferry doesn't employ anybody.

PN418

All right. Now, in your role with the business between – sorry, I withdraw that. In the roles that you describe that you have with Noorton Pty Ltd and Manly Fast Ferry Pty Ltd, you have responsibility for all industrial relations matters?‑‑‑With the advice of Mr McCarthy. I'm not trained in industrial relation but ultimately the responsibility lands with me.

PN419

Yes. In that capacity you've been involved in discussions with the MUA since 2015?‑‑‑I have.

PN420

In April 2015 an NERR or Notice of Employee Representational Rights was issued to employees working on the Circular Quay to Manly Ferry, wasn't it?‑‑‑That's correct.

PN421

You were responsible for the issue of that document, weren't you?‑‑‑Yes, I am.

*** RICHARD IAN FORD XXN MS DOUST

PN422

You knew that you were legally required to have the correct content in that document if an agreement was ultimately to be approved?‑‑‑Under advice from Mr McCarthy, yes. (Indistinct) aware it was a legal document (indistinct) part of the process of negotiating an enterprise agreement.

PN423

You knew that one of the things you had to have correct in that document was the name of the employer of the employees affected by the notice?‑‑‑Yes.

PN424

And you would accept, wouldn't you, that it would be an important part of that process that he employer be correctly named?‑‑‑Yes, but through the process I wasn't aware that the employer – at that time I wasn't aware that the employer had to employ the employees at the time of the notice. I believe that once we made the agreement we could move the employees to that particular entity – to a particular entity because prior to that: how do you employ the employees?

PN425

Right. So before you issued that notice in April 2015, who did you believe was the employer of the employees who were provided the notes?‑‑‑Noorton Pty Ltd.

PN426

You believe that?‑‑‑Yes.

PN427

Now, that Notice of Employee Representational Rights only concerned employees working on the Circular Quay to Manly Ferry, didn't it?‑‑‑At that time of issue, yes.

PN428

And do you say that Manly Fast Ferry Pty Ltd had any employees in the period between April 2015 and 14 September 2015?‑‑‑No, it didn't.

PN429

You say that about this time you changed your strategy, didn't you?‑‑‑Yes.

PN430

Tell me about that strategy?‑‑‑Well, initially we proposed to the MUA an agreement which covered the GPHs and hosts working on the ferry service between Manly and Circular Quay. The feedback from the employees and the MUA was that the desire was to have one agreement that covered both the tourism work and the ferry work operated by the two separate entities, and so then it was – prior to April 2015 we had two workplace agreements, one was under the name of "Manly Fast Ferry" and one was under the name of Noorton Pty Ltd. So once the company agreed with the MUA's request and the staff's request to put them under one entity – one agreement, the decision was made by the company that we should employ under Manly Fast Ferry so that the one agreement and all employees would be covered under the one company, and that was out intention after the initial negotiations.

*** RICHARD IAN FORD XXN MS DOUST

PN431

So in paragraph 15 of your statement you say you changed your strategy to one of transferring all employees across to Manly Fast Ferry Pty Ltd?‑‑‑That is correct.

PN432

When did that occur?‑‑‑When did the decision occur or we didn't actually change?

PN433

Let us start with decision. When did you make that decision?‑‑‑It was sometime after we agreed with the MUA and the employees to make – to change the scope and coverage of the agreement. I don't have the date.

PN434

Are you able to give me a month?‑‑‑I don't have a particular month. It would have been around July, June, July.

PN435

And what do you say? Do you say that that was implemented?‑‑‑No, it wasn't.

PN436

Well, tell me this: your view is that you could simply pick up employees that you say you believed were employees of Noorton Pty Ltd and move them to Manly Fast Ferry Pty Ltd?‑‑‑We could transition employees from one company to another.

PN437

I think the term you used was "transfer" in your statement?‑‑‑Transfer, transition, yes. The same meaning - - -

PN438

You could just move them?‑‑‑I believe. I don't know the implications of the term "transfer to transition" but - - -

PN439

Well, tell me this - - -?‑‑‑I understand they keep their - whatever rights they have as they go across.

PN440

Well you use the term transfer there in your statement. What that suggests is that you decided that you could move them. You made the decision you could just move them and they could then have a different employee. That's what you're describing in the statement isn't it?‑‑‑Yes, under the - once the agreement was up that was what I understood, that we can transfer them across.

PN441

Do you maintain that view, that the employer can at any stage transfer employees to a different entity if it meets the employer's strategy?‑‑‑I believe that with the retention of all their existing rights they can.

PN442

You can just transfer them?‑‑‑That's my understanding.

*** RICHARD IAN FORD XXN MS DOUST

PN443

So if Noorton Pty Ltd was so minded it could just transfer its employees to Manly Fast Ferry Pty Ltd tomorrow?‑‑‑I'd expect there'd be a process that we would have to go through but I believe we could make that effect at no detriment - - -

PN444

Or a part of them. You might - - -?‑‑‑With no detriment to the employees.

PN445

So in any event one thing that appears from the evidence you've given here is that it was clear in your mind as at this period about July/August 2015 that the employees that were involved in both the Manly to Circular Quay ferry service and the employees who were working on the other parts of your business were employees of Noorton Pty Ltd?‑‑‑Yes, they were.

PN446

Had you asked the employees whether they were agreeable to simply transferring across to a different entity?‑‑‑We hadn't got to that stage as we were still negotiating with the union about the agreement. So we never - we never took that action.

PN447

So let me just ask you this. As at 14 September 2015, do you remember that point in time?‑‑‑Yes.

PN448

That's when you issue a further notice of employee representational rights, and this is at page 15 of Mr Garrett's statement. Do you have that document?‑‑‑Yes, I do.

PN449

Do you recognise that as the notice of employee representational rights that you caused to be issued?‑‑‑Yes.

PN450

About 14 September 2015?‑‑‑Yes.

PN451

At that stage you believed that the employees who received this notice were employees of Noorton Pty Ltd?‑‑‑Yes, they were.

PN452

You gave them a notice stating that Manly Fast Ferry Pty Ltd was the employer and that it was Manly Fast Ferry Pty Ltd that was bargaining with them?‑‑‑My reading of the notice is that Manly Fast Ferry Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement.

PN453

Yes?‑‑‑A new enterprise agreement.

*** RICHARD IAN FORD XXN MS DOUST

PN454

Yes?‑‑‑Manly Fast Ferry Pty Ltd, Sydney Harbour Services, which is proposed, so it's not in place yet. It's proposed to cover employees what are employed by MFF as general purpose hands, deckhands, so I believe that's a notice to say what is going to happen at the - as what we're negotiating at the moment, as of that point.

PN455

It refers to employees that are employed by MFF, so Manly Fast Ferry Pty Ltd?‑‑‑That's correct.

PN456

That's the reference above?‑‑‑Well, I - - -

PN457

You understood that this was a notice that needed to be given to existing employees didn't you?‑‑‑No, I didn't. I understood that that was a notice that that was what we were doing to get a new agreement in place. As I stated before, I was unaware that the company who employed the employees had to be the company issuing the NER.

PN458

See what I want to suggest to you is this, that you knew on your evidence at the time you issued this notice that Manly Fast Ferry Pty Ltd was not the employer of anyone?‑‑‑I did know that, yes.

PN459

That the contents of the statement at the top of this document was not a truthful statement?‑‑‑I read that differently to what you're explaining. I read that to say that this will be the arrangement going forward. We are negotiating with the union and this will be the situation going forward. That's what I understood. It wasn't until later in May 2017 that Mr McCarthy explained to me that the companies - and that's when we re-issued the NER under Noorton Pty Ltd.

PN460

Did you not take any advice at that time about the nature of a document such as this?‑‑‑I believe there was a miscommunication between Mr McCarthy and myself as to the status of the employees.

PN461

So you took some advice from Mr McCarthy. You had legal advice from an experienced industrial relations lawyer about the content of the notice of employee representational rights?‑‑‑Yes, and the discussions we've had around this is that the intention was to move the employees to Manly Fast Ferry and we were clear on that. The communication breakdown was in timing when that had to - when that was supposed to occur.

PN462

What I want to suggest is this, you understand don't you the basics of contract law. You understand it's about offering and accepting?‑‑‑Yes.

*** RICHARD IAN FORD XXN MS DOUST

PN463

You must have understood as a consequence of that that employment is about an agreement between two parties; offer and acceptance. You understood that?‑‑‑I understand - yes, I understand that that's a contract between the employer and the employee.

PN464

And it wasn't open to you as an employer to simply assign your employees off to another entity?‑‑‑Well, they haven't - I didn't do that.

PN465

Well the account you give of it appears to suggest that you thought you were entitled to do that?‑‑‑No, I thought that - my account is that I understood I was able to change. I have said that we didn't go through the process of what's required to do that. Obviously if we want to change a contract between two parties, then you discuss with the two parties and you can change the contract.

PN466

Is it that on a day to day basis you're not entirely clear where Noorton Pty Ltd ends and Manly Fast Ferry Pty Ltd starts?‑‑‑No, Noorton Pty Ltd has and has always been the employer of the employees.

PN467

Just move ahead now. After September 2015 and prior to 26 April 2016, was there any further development on this process of transferring, I use your term, employees to Manly Fast Ferry Pty Ltd?‑‑‑No, there wasn't.

PN468

Did you take any further step to implement that decision?‑‑‑No, I didn't.

PN469

Did you have any consultation with employees at that stage advising them that you were considering transferring them to a different entity?‑‑‑No, I didn't.

PN470

As at 26 April 2016, you say that the deckhands and hosts and hostesses working on the Manly Ferry Service were employed by Manly Fast Ferry Pty Ltd or Noorton Pty Ltd?‑‑‑Noorton Pty Ltd.

PN471

What about the deckhands, hosts and hostesses working in what you describe as the company's maritime tourism activities?‑‑‑Noorton Pty Ltd.

PN472

Now the employees I've just described are the employees who fell within the scope of the further notice of employee representational rights that was issued on 26 April 2016, wasn't it?‑‑‑Sorry, can you ask the question again?

PN473

I've just described two classes of employees?‑‑‑Right, GPH and host.

*** RICHARD IAN FORD XXN MS DOUST

PN474

Yes, working on the Manly Ferry Service and in what you describe as the maritime tourism activities?‑‑‑Yes.

PN475

They were employees who fell within the scope of the NERR issued on 26 April 2016?‑‑‑I believe it was around that time that the group of employees wanted to change the coverage and drop the masters and engineers from the negotiations.

PN476

Is that a yes?‑‑‑Well, I can't recall exactly the dates, I don't have the document in front of me but I believe - - -

PN477

If you go to Mr Garrett's statement at page 16 please. Do you recognise that document?‑‑‑Yes, I do.

PN478

Is that a document you were responsible for issuing to the two classes of employees I've just described?‑‑‑I don't believe we issued the form F16 to the employees.

PN479

I'm not referring to the form F16, I'm referring to the document that's on page 16?‑‑‑Am I in the wrong one?

PN480

On the left-hand side?‑‑‑I'm sorry. So that still has the masters and engineers in?

PN481

Yes. Well, do you accept that this is a notice of employee representational rights - - -?‑‑‑Yes, I do.

PN482

- - - that was issued at your directive?‑‑‑Yes.

PN483

Again, the reference is in there to Manly Fast Ferry Pty Ltd?‑‑‑Yes, because that was still the intention.

PN484

Is it your evidence that at this stage you believe that Noorton Pty Ltd was the employer?‑‑‑Yes, it was.

*** RICHARD IAN FORD XXN MS DOUST

PN485

What I want to suggest to you is that if Noorton Pty Ltd - if you believe that Noorton Pty Ltd was the employer, it was not truthful to complete this document in a way that suggested or that stated that Manly Fast Ferry Pty Ltd was the employer?‑‑‑Well, once again I draw your attention to the form. It says that this - Manly Fast Ferry gives notice that it is bargaining because it intended to employ the people to an enterprise agreement which is proposed to cover, it doesn't cover them yet, but is proposed to cover the employees. So I took this form, I understood this form was a future position once the negotiations were finished and - - -

PN486

You didn't have to - you didn't have to be an employer to engage in enterprise bargaining under the Fair Work Act. That was your belief?‑‑‑That was - that was what I understood at the time.

PN487

Let's just move on a little bit if we might. You issued a further NERR, a notice of employee representational rights, to employees on 20 May 2016 didn't you?‑‑‑2016.

PN488

Yes?‑‑‑Can you draw my attention to it? I don't have that date in front of me.

PN489

Well there's a reference on page 25 of the F16 document that appears at PG4 - I'm sorry, it's 25 in Mr Garrett's statement?‑‑‑Are you referring to scope 2.2 or - I'm not sure.

PN490

No. Page 25, would you go to the bottom of the page, the final paragraph?‑‑‑On 20 May? Yes.

PN491

20 May, NFF issued a notice of employee representational rights, yes?‑‑‑Yes.

PN492

You attach at attachment 1 to that document which is not included here unfortunately, a copy of that document?‑‑‑Right.

PN493

Was that a document in the same form as the document from 26 April 2016 that we've just seen?‑‑‑I don't have that document here, do I?

PN494

Do you have any recollection of it? The document that you sent?‑‑‑You're asking in relation to specific documents a year ago, a year and a half ago. I just want to be able to see the document so I can answer whether - because there's been a lot of negotiations and as you can see a lot of changes in this whole process over two and a half years.

PN495

Have you - after the issue of the notice of employee representational rights in April 2016, had you changed your mind about which employer should be included in the notice of employee representational rights?‑‑‑I answered this earlier that - - -

*** RICHARD IAN FORD XXN MS DOUST

PN496

No, I'm asking you about whether or not you changed your mind after 26 April 2016, and I haven't asked you that question before?‑‑‑I didn't change my mind as to who the preferred company should be the employer.

PN497

No, let me just ask you - let me be clear about this. After the issue of the notice of employee representational rights dated 26 April 2016, did you change your mind about who was the employer of the employees?‑‑‑No, I've always been - I've always been of the mindset that Noorton Pty Ltd was the employer. The difference is - - -

PN498

You believe that it was Noorton?‑‑‑ - - - who the future employer would be of the employees.

PN499

Well let's just go through this document shall we?‑‑‑Which document are you referring to?

PN500

The F16, it starts at page 17. The applicant there is Manly Fast Ferry Pty Ltd?‑‑‑Yes.

PN501

It says it's the employer or one of the employers to be covered by the agreement?‑‑‑Yes.

PN502

You understood didn't you that an enterprise bargaining agreement is an agreement between an employer and its employees?‑‑‑Yes.

PN503

Not an agreement between a third party and employees to benefit a different employer in the future. You understood that didn't you?‑‑‑But in the context of what I was explained is that the employer was to be Manly Fast Food, we were negotiating as Manly Fast Food to employ these employees once the agreement was made. That was my understanding.

PN504

Let me just take you through at the bottom of - I'm sorry, it's the - would you move on to page 23. You refer there at point 1.1:

PN505

What's the name of the employer? Manly Fast Ferry Pty Ltd.

PN506

Do you say you read that as giving you the right to fill in who was intended to be the employer?‑‑‑Yes.

*** RICHARD IAN FORD XXN MS DOUST

PN507

Down the bottom of page 25, where you say:

PN508

On 20 May 2016, MFF issued a notice of employee representational rights by email to each of its employees employed in classifications.

PN509

What you meant was that Manly Fast Ferry Pty Ltd issued a notice to each of its prospective employees in classifications to be covered?‑‑‑Yes, that's what I understood.

PN510

What I want to suggest to you, Mr Ford, is that that is just simply not a sensible explanation for how you went about proceeding with these applications. Do you have anything to say in response to that?‑‑‑No, I think it's - as I've explained to you it's an oversight in the communication between Mr McCarthy and myself that I was of the understanding that the only other workplace agreement negotiations I've been involved with were greenfields in the original workplace agreements, where we made new agreements for employees. So I was of the opinion that that's what could be done. In May 2017, as I've explained the error came to light. Mr McCarthy advised we needed to issue a new NERR under Noorton, as the employer of the employees. So that is what we did and we issued the NERR under the correct company once I got the advice.

PN511

Mr Ford, as at the time of this application that was made to the Commission in late 2016, you included an entry that suggested that these employees were employees of Manly Fast Ferry, didn't you?‑‑‑It was my understand that they were - that that was going to be the case once this was made. They couldn't be employed until the agreement was made.

PN512

Are you saying your understanding of enterprise agreements is that you can't employ the employees to be covered by them until the agreement is made?‑‑‑My understanding was, which I've explained was that once we got this agreement in the name of Manly Fast Ferry, we could then go through the process of employing the people under Manly Fast Ferry. That was my understanding and I have said it's since been explained to me that that was incorrect.

PN513

Just a couple of propositions, Mr Ford. You understood didn't you that it was extremely important that you tell the truth in this material that was being provided to the Commission, didn't you?‑‑‑Yes.

PN514

You understood that the truthful position in respect of the employment of the employees was a very important matter for the Commission to consider, didn't you?‑‑‑Yes, and the way I read - - -

*** RICHARD IAN FORD XXN MS DOUST

PN515

Nowhere in your document is the Commission advised that in fact one of these employees are employed by Manly Fast Ferry Pty Ltd but this is what we intend to do in future?‑‑‑And that was how I read the notice of employee representational rights and the next document.

PN516

Your view - - -?‑‑‑That was how I understood it.

PN517

Your view, Mr Ford, was this wasn't it? You could go off and make an agreement that covered Manly Fast Ferry and perhaps in the future you could or may decide not to transfer employees who voted on that agreement across to that other entity?‑‑‑No, that was never the belief, that once this was agreed, whichever company, those employees would be covered under that enterprise agreement. That was our intention and that was the discussions right the way through the process.

PN518

Let's just go to page 26 of this document if you don't mind. You see at 2.4.4 there:

PN519

What steps were taken by the employer and on what date were they taken to ensure that the relevant employees were either -

PN520

and so on and so forth?‑‑‑Yes.

PN521

You gave the answer to this question, didn't you?‑‑‑Yes.

PN522

Your answer described NFF as the employer sending an email to all relevant employees advising in respect of the package of information documents?‑‑‑Yes.

PN523

You were referring to a period in November 2016 where documents were being circulated to the employees in respect of the agreement that was being put to the vote?‑‑‑Yes, and I've explained on the other occasion - - -

PN524

No, no, Mr Ford, please wait and listen to my question. You were suggesting weren't you by the answer that you've given that Manly Fast Ferry Pty Ltd was presently the employer of those employees as at 29 November 2016, weren't you?‑‑‑In that documentation it says MFF the employer sent an email.

*** RICHARD IAN FORD XXN MS DOUST

PN525

Yes?‑‑‑Regarding the proposed new enterprise agreement. So it's consistent with my previous position that the new enterprise agreement Manly Fast Ferry would be the employer.

PN526

THE DEPUTY PRESIDENT: Ms Doust, I presume you're going to get to it but aren't we dealing with the relevant NERR, which is the one that was issued on 28 June?

PN527

MS DOUST: Yes, I'll come to that in due course.

PN528

THE DEPUTY PRESIDENT: Right. I can understand why you're traversing this history but - - -

PN529

MS DOUST: It goes to the liability of any account of the events and appreciation of the import of relevant facts and matters. Mr Ford, an agreement was put out to employees on about 25 November 2016, correct?‑‑‑I have to look at my documents on that one.

PN530

This is as part of the process in the F16 I'm taking you to?‑‑‑All my information I have here is in relation to the NERR that we're putting out now not the Manly Fast Ferry previous NERR, so I don't have the - - -

PN531

I think - no, you have Mr Garrett's statement there which includes all of these documents?‑‑‑Which page are you - which page are you referring to?

PN532

Twenty-seven of that document?‑‑‑"When did you notify", is that what you're referring to, section 2.5?

PN533

Let me - perhaps I can shortcut this. You made an application to the Fair Work Commission for them to approve your document and give it legal status. Do you accept that?‑‑‑Yes.

PN534

You're aware that was a very serious step don't you?‑‑‑Yes.

PN535

You appreciated that it was important to be truthful in the information you provided in respect of that application?‑‑‑Yes.

*** RICHARD IAN FORD XXN MS DOUST

PN536

What I want to suggest to you is, you provided material to the Commission which identified Manly Fast Ferry Pty Ltd as the present employer of the relevant employees. I make that suggestion to you, do you accept it or do you deny it?‑‑‑Well, no, I don't accept - I don't accept that suggestion.

PN537

I want to suggest that on your state of knowledge or belief at that time you knew that to be wrong?‑‑‑Well, I didn't - I don't agree that that makes that suggestion. It says that the employer, consistent with my previous statements, if this application were successful would be Manly Fast Ferry.

PN538

Now that application before the Commission was ultimately discontinued, wasn't it?‑‑‑Yes, it was.

PN539

You issued a further notice of employee representational rights to employees on 23 February 2017?‑‑‑Do you have the page reference?

PN540

Yes, it is - I'm sorry, I think it might be page 15 of Mr - no, I'm sorry, I don't have the reference for you. Do you agree that you - I think you put it in your reply statement, you issued a further notice of representational rights after that matter was concluded?‑‑‑Yes, there has been a number of notices gone out.

PN541

You took the same approach of identifying Manly Fast Ferry Pty Ltd as the employer?‑‑‑Consistent with my understanding.

PN542

You're now seeking approval of an agreement to which Noorton Pty Ltd is named as the party?‑‑‑We are. Yes, I am.

PN543

In the period since the discontinuation of that application in February 2017 and 6 June 2017, the Maritime Union of Australia hadn't asked you or asked Noorton Pty Ltd to make an agreement with the MUA have they?‑‑‑I'm sorry, I don't understand the question.

PN544

After you issued that further notice of representational rights, after you'd discontinued the first application for approval?‑‑‑Yes.

PN545

The MUA didn't approach you and say look, let's start bargaining for an agreement with Noorton?‑‑‑No.

PN546

That was the case from the time of the issue of the notice of employee representational rights after the discontinuance of your application, right up until 6 June 2017 wasn't it?‑‑‑No, we negotiated with the union, issued a new NERR on 6 June.

*** RICHARD IAN FORD XXN MS DOUST

PN547

I'm talking about prior to 6 June?‑‑‑Prior to 6 June there was continued discussions and negotiations with the MUA.

PN548

Let me be clear about something. I'm asking you about whether or not the MUA approached you and asked for Noorton to be party to an enterprise agreement. Do you appreciate that question?‑‑‑I do.

PN549

No such approach was made, was it?‑‑‑No such approach was made.

PN550

Between the notice of employee representational rights issued under the name Manly Fast Ferry Pty Ltd in February 2017, and the further issue of the notice of employee representational rights by Noorton Pty Ltd on 6 June 2017?‑‑‑Once again, I don't - I'm not right across the technical nature of the constitution of bargaining but the MUA may have written a letter addressed to Noorton Pty Ltd in relation to - or an email in relation to the enterprise agreement negotiations. So there may - - -

PN551

Let me just stop you there for a second, Mr Ford. You are attempting now to suggest aren't you that there was some communication from the MUA to Noorton Pty Ltd in that period that I'm talking about?‑‑‑No, I'm saying I don't have all the records here, there may have been and I'm not clear on - I haven't checked the detail on the top of the emails and who they wrote to.

PN552

You have no recollection of that matter, do you?‑‑‑I have recollection - through the whole two and a half years we've been - - -

PN553

Of Noorton being asked by the MUA to engage in enterprise bargaining?‑‑‑No, that's why I answered the question. I don't know what constitutes a request for bargaining and I am not clear and don't have the records of all the correspondence between the MUA and Noorton Pty Ltd during that time.

PN554

Well you were the person in that period that had responsibility for these matters on behalf of Noorton Pty Ltd weren't you?‑‑‑I am, yes.

PN555

So if anyone would know, as you accepted earlier, it would be you?‑‑‑Yes.

PN556

You can't point us to any communication from the MUA seeking to enter into enterprise bargaining with Noorton?‑‑‑Not without notice - - -

*** RICHARD IAN FORD XXN MS DOUST

PN557

You can't point us to anything in that period where Noorton Pty Ltd has approached the MUA and said we, Noorton, want to enter into some enterprise bargaining?‑‑‑The negotiations were ongoing for two and a half years. The correspondence was going back and forward.

PN558

Please focus on my questions, Mr Ford?‑‑‑I am focusing on your question.

PN559

You can't point to anything in that period, 23 February 2017 to 6 June where Noorton approached the MUA and said we want an agreement with the MUA, by the way this is Noorton here communicating with you as opposed to Manly Fast Ferry?‑‑‑I can't answer that without looking at my records.

PN560

Now you refer in your reply statement to a text message with Beau and Nick?‑‑‑Yes.

PN561

Who was Beau employed by?‑‑‑Noorton Pty Ltd.

PN562

In what role?‑‑‑At the time he was employed as a master 5, I believe.

PN563

So not someone who would be covered by this agreement?‑‑‑He just recently moved to master 5 so he continued, as is the practice in our company - - -

PN564

Mr Ford, please focus on my question?‑‑‑I am.

PN565

This proposition?‑‑‑Yes.

PN566

Not someone who would be covered by this agreement?‑‑‑Yes, at times - - -

PN567

Do you agree with that proposition?‑‑‑No, I don't agree with that proposition.

PN568

He wouldn't be covered by this agreement?‑‑‑No, I don't agree with that proposition.

*** RICHARD IAN FORD XXN MS DOUST

PN569

He would be covered by the agreement?‑‑‑He may have been covered by the agreement, because as master - he got his masters ticket. He started off as a deckhand and the delegate negotiating for this EBA as a deckhand. Through the two and a half years he progressed to master, but he continued - and I don't have the details of when he finished doing shift as a deckhand, but as a master they don't get it automatically. They work up for a period until they get enough shifts to be a full master 5. So he may have been covered by this agreement. I haven't got the details in front of me of when he last did he his deckhand shift and whether he did deckhand shifts after, but he didn't vote on the agreement.

PN570

You can't tell me now - - -?‑‑‑I'm sure he didn't do - - -

PN571

- - - that he was a person who was at the time of this communication in one of the classifications covered by the agreement?‑‑‑He was a master 5 at the time of this agreement.

PN572

Not covered by this proposed agreement you want the Commission to approve?‑‑‑I don't believe he did shifts after as a deckhand.

PN573

He hadn't been nominated as a bargaining representative in the negotiations after the issue of the notice of employee representational rights on 23 February 2017, had he?‑‑‑Beau continued to negotiate as a delegate right through the process.

PN574

You understand what a bargaining representative is under the agreement?‑‑‑I don't know - - -

PN575

You understand that employees have a right - - -?‑‑‑Yes.

PN576

- - - to nominate a specific person as their representative?‑‑‑No, he wasn't nominated as a bargaining representative.

PN577

Yes. Nick, who is that?‑‑‑Nicole Sparta.

PN578

What does she do?‑‑‑She works for the company in the office and on the vessels as a general purpose hand at times.

PN579

What does she do in the office?‑‑‑She manages the roster.

PN580

Which office are you talking about? The office at Pyrmont?‑‑‑No, the office at Darling Harbour.

*** RICHARD IAN FORD XXN MS DOUST

PN581

She hadn't been appointed by a bargaining agent by any employee who would be covered by the agreement following the issue of the NERR on 23 February 2017, had she?‑‑‑No.

PN582

Now, you didn't suggest anywhere in your text message - which is attached to your reply statement - that it was Noorton that wanted to make an agreement and not Manly Fast Ferry?‑‑‑No.

PN583

In fact you refer in your statement to MFF, don't you?‑‑‑Yes, it's consistent with the vernacular in the workplace that Manly Fast Ferry - that our staff work for Manly Fast Ferry.

PN584

Well, you're actually using that term there - you are saying, "It's time for MFF to stand up as a group and talk to management"?‑‑‑Yes.

PN585

So you weren't talking about Manly Fast Ferry, the proprietary limited company, were you? You were talking about the members of crew that were employed in the business?‑‑‑Of Noorton, but we don't have an abbreviation for Noorton Pty Ltd.

PN586

What you were suggesting was that they do something. You weren't yourself saying you were doing anything, were you? You were saying it's time for them to stand up and talk to management?‑‑‑And I'm management, so I was participating in that discussion.

PN587

You would accept this, wouldn't you: the notion that Noorton Pty Ltd would be the employer covered by the agreement rather than Manly Fast Ferry Pty Ltd was a significant change from the previous course of events?‑‑‑Well, the negotiations started with Noorton Pty Ltd, so the fact that it was then - and that they were employed by Noorton Pty Ltd, it was a change. Both companies are related, so I didn't see it as significant to the employees.

PN588

Three or possibly more notices of employee representational rights sent out identifying Manly Fast Ferry Pty Ltd, one application for approval made in the name of Manly Fast Ferry Pty Ltd and you're saying that the notion that it wouldn't be Manly Fast Ferry Pty Ltd that was party to the agreement or covered by the agreement, but Noorton Pty Ltd, was not a significant change. Do you seriously adhere to that, do you?‑‑‑Not to the employees. Not to the employees.

*** RICHARD IAN FORD XXN MS DOUST

PN589

Nothing in your text signalled that such a change had happened, did it?‑‑‑No, because to the employees - they told me that they wanted this agreement done. They referred to the agreement, to me, as "the agreement", so they were motivated to work with the company and meet with management to get an agreement in place. The fact that it was Noorton Pty Ltd or Manly Fast Ferry was irrelevant to the employees. They wanted an agreement in place.

PN590

Mr Ford, I think I asked you before to refrain from expressing an opinion about what other people were thinking?‑‑‑This is something they told - - -

PN591

Would you please abide by that?‑‑‑This is something that the employees told me.

PN592

You don't identify in your statement any material that shows that as at the time of that text message a decision had been made by Noorton Pty Ltd to bargain, do you?‑‑‑Could you ask the question again.

PN593

You don't identify in your statement any material that shows that at the time of that text message to Mr Chippendale that a decision had been made by Noorton Pty Ltd to bargain?‑‑‑In paragraph 22 of my second witness statement I note that:

PN594

After Paul Garrett notified that enterprise bargaining between the business and the MUA was concluded, Noorton Pty Ltd through myself communicated with its employees, on‑site employ representatives, for the purpose of negotiating an agreement directly with our employees.

PN595

Can I cut you short there. Is this what you say represents any material in your statement showing Noorton's decision?‑‑‑This is a statement by me - a witness statement by me - and it's my statement that we made that decision as Noorton Pty Ltd to continue negotiating directly with the employees.

PN596

Now, I want to take you to the list of employees that were offered a vote in this matter. I'll get to that shortly, but a notice of representational rights was distributed by email on 6 June 2017, wasn't it?‑‑‑Yes, it was.

PN597

That was distributed by email?‑‑‑Yes, it was.

PN598

So you had a distribution list at that stage? It's page 113 of Mr Garrett's statement, just in case you need to make reference to that?‑‑‑Yes, it is.

PN599

So do you have an email distribution list?‑‑‑Do I have one? Did I have it?

PN600

Did you have one?‑‑‑Yes, I did.

*** RICHARD IAN FORD XXN MS DOUST

PN601

Who put that together?‑‑‑I did.

PN602

How did you determine who would go on the list?‑‑‑I did a report from our employee system, which - downloaded a CSV file of all the people who were currently employed by Noorton Pty Ltd in the role of GPH host or hostess and working on the vessels at that time, and had been and were still employed.

PN603

So you downloaded some electronic files?‑‑‑That's correct.

PN604

You refer in an email to Mr McCarthy on 19 June 2017 to there being new employees added all the time?‑‑‑Yes.

PN605

You say there were numerous employees who commenced employment after the issue of the NERR on 6 June 2017?‑‑‑Just let me check. I have a start date here on the - - -

PN606

Was that your recollection; that there were numbers that had come on between 6 June and 19 June?‑‑‑No, it was my - the nature of my email was a concern that I captured all eligible employees to vote and what was the - and I sought advice as to how we determined the eligible employees, because people do start with the company from time to time and I was wanting to be clear on how I captured those within the list of - - -

PN607

Mr Ford, let me just focus you on this?‑‑‑Yes.

PN608

In your email to Mr McCarthy, 19 June, you say, "New employees are added all the time"?‑‑‑Yes.

PN609

You sent that on 19 June?‑‑‑That's correct.

PN610

The NERR has gone out on 6 June?‑‑‑Right.

PN611

Now, are you saying that in the intervening period there were numerous employees who were engaged who fell within the cohort of employees to be covered by this agreement?‑‑‑No, it didn't say that. It said new employees are added all the time. I wasn't being specific to the period between the NERR and the vote. It was that they were added all the time.

*** RICHARD IAN FORD XXN MS DOUST

PN612

Now, you have produced a list of names in answer to the order to produce?‑‑‑Yes.

PN613

Do you have a copy of that?‑‑‑I do.

PN614

Might that be marked - I think you should have that, Deputy President - MFI 3.

PN615

THE DEPUTY PRESIDENT: Yes.

MFI #3 LIST OF NAMES IN ANSWER TO ORDER TO PRODUCE

PN616

MS DOUST: You agree there are 49 names on that list?‑‑‑Yes, I believe that's correct.

PN617

There is a column that says "Email voted"?‑‑‑Yes.

PN618

The entry under the column indicates - - -?‑‑‑I'm sorry, can I correct you on that?

PN619

Yes?‑‑‑The column before it is called "Valid email".

PN620

Right?‑‑‑The column after is called "Voted". There is a separation in the columns.

PN621

I see. So what is entered under "Voted" is whether or not the employee lodged a vote or not?‑‑‑That's correct.

PN622

That column records that five of the employees on that list did not vote?‑‑‑That's correct.

PN623

That accords with the F17 statutory declaration you've prepared?‑‑‑Yes.

PN624

Who prepared this list? Is that you?‑‑‑This list is prepared by the Simply employer web site.

PN625

You can - - -?‑‑‑Download it.

*** RICHARD IAN FORD XXN MS DOUST

PN626

- - - press a button and it will print out a document with all these entries on it?‑‑‑No, it doesn't have - it has the first - sorry, column number, the name, the email address which isn't shown.

PN627

Yes?‑‑‑The next column - but I have added the shift details in relation to the shift before it and shift after.

PN628

Yes?‑‑‑And have also added the start and last log‑in date.

PN629

This is a document that you have prepared?‑‑‑Yes.

PN630

For the first one, two, three, four columns, that's kept in your Simply Voting system. Is that right?‑‑‑It's an online Simply Voting system. It's not my - - -

PN631

For the next column "Shift on or before" - you've got a date there. What did you refer to in order to complete that?‑‑‑Our easyemployer roster system.

PN632

So these entries haven't been automatically generated by getting an automatic report?‑‑‑No, no.

PN633

You have gone and accessed - - -?‑‑‑I've had to go and access the system to get the data.

PN634

You have gone accessed material?‑‑‑Yes.

PN635

You've entered it in there?‑‑‑Yes.

PN636

"Shift on or before"?‑‑‑Yes.

PN637

You've also gone and entered in the entry, "Next shift after vote"?‑‑‑Yes, this was - the shift detail may not - the label may not be totally correct, because some of the information came off the payslips, but it doesn't have the exact date.

PN638

THE DEPUTY PRESIDENT: Ms Doust, where do I find MFI3?

*** RICHARD IAN FORD XXN MS DOUST

PN639

MS DOUST: Do you not have that in the bundle of material that was - it was provided in response to the notice to produce. It's a single-page document, and it looks like that, Deputy President. I'm sorry, I thought you had the materials - - -

PN640

THE DEPUTY PRESIDENT: It's all right. Proceed.

PN641

MS DOUST: So I was just asking you, so far as there's entries in that column, "Shift on or before", that's an entry that you've inserted, having reference to other primary records?‑‑‑That's correct.

PN642

And so far as, "Next shift after vote" is concerned, that's an entry that you've made, having reference to other records?‑‑‑That's correct.

PN643

You've also gone and entered in the start date, have you?‑‑‑Yes.

PN644

And also last login?‑‑‑Yes, I have.

PN645

So we're not getting the primary records of the company that show these things; we're getting your transcription of these matters?‑‑‑Yes.

PN646

And do you accept that some of these, you may have got it slightly wrong?‑‑‑To the best of my knowledge, this information in the first four columns is a complete electronic download from Simply Voting.

PN647

Yes?‑‑‑The shift before, I went through and checked. The shift after, some of these dates I picked up from the payslips. It was the next payslip after, so it may not be specifically on the day.

PN648

Yes?‑‑‑And the start and login date is an electronic download from the easyemployer system, which I have imported into this spreadsheet.

PN649

Well, let's just go to the timesheets, because - you've got them there; they should be MFI 1 and 2. Now, you understood, didn't you, you were asked to provide records to show the three shifts worked by the employees prior to the vote?‑‑‑Yes.

PN650

Three most recent shifts worked by the employee. All right. I want to just go through and take you to some of these examples, and ask you to respond, if I might. First of all, can we go to the employee who is second on that list?‑‑‑MFF1(sic) or MFF2?

*** RICHARD IAN FORD XXN MS DOUST

PN651

MFI - I think we're up to 3 or 4.

PN652

THE DEPUTY PRESIDENT: Four.

PN653

MS DOUST: Four, I'm sorry. What's 3?

PN654

THE DEPUTY PRESIDENT: Three is just the list.

PN655

MS DOUST: Yes. I'm sorry, Deputy President, you haven't issued MFI4 yet.

PN656

THE DEPUTY PRESIDENT: No.

PN657

MS DOUST: All right, yes, thank you. Go to the person that's second on the list?‑‑‑Yes.

PN658

Now, in MFI1, we don't have any record for this person having performed a shift prior to the date of the vote, do we?‑‑‑I believe it was there. I would have to check -

PN659

I'll just stop you there. I just want to go back. You've prepared these bundles of timesheets generally in this format, haven't you? The timesheets that are in MFI1 contain records of shifts in the period from about 26 June, leading up to the vote; is that correct?‑‑‑Yes, that's correct.

PN660

And the timesheets that are in the document that's MFI2 have timesheet records for the period thereafter?‑‑‑Not completely. There were some timesheets -

PN661

Tenth of July onwards?‑‑‑There were some timesheets for particular employees who worked earlier in the period. We did specific timesheet prints for them, so they wouldn't have electronically printed out in this bundle alphabetically. They would've been done separately. So I'm just checking to see that they were completed. I do recall doing the timesheet for that employee prior to the vote.

PN662

I'm sorry, would you go to MFI2 in respect of that employee?‑‑‑Yes.

PN663

Do you see those entries?‑‑‑Yes.

*** RICHARD IAN FORD XXN MS DOUST

PN664

So what we have is a couple of days worked, 22 and 23 June, and then a couple of days worked, 20 and 21 July?‑‑‑Yes.

PN665

So, not at work at the date of the vote, and not at work for a fair time either side of that vote?‑‑‑Well, ten - nine days later.

PN666

Let's go, if you don't mind, to the person who is at the sixth entry down the page, on MFI3. Now, these are generally arranged in alphabetical order?‑‑‑Yes.

PN667

We see some entries in respect of this person in MFI2, about four pages in?‑‑‑Yes.

PN668

And what we see is that we have some work being done in the period up until 2 June?‑‑‑That's correct.

PN669

There's then no further work done by this employee, on the material that is available in these timesheets, up until the date of the vote?‑‑‑Yes.

PN670

And in fact, what we do have is an indication, from 3 June, that this employee was off travelling in South America?‑‑‑That's correct.

PN671

So this was an employee who hadn't been in the business for some five weeks prior to the vote?‑‑‑Started with the company in August 2013.

PN672

Casual employee?‑‑‑And has worked consistently up until four weeks before, and was notified -

PN673

Five weeks, I think you'll find, Mr Ford?‑‑‑Five weeks.

PN674

Well, just tell me, do you say that's four weeks, do you?‑‑‑No, his last shift was on 2 June, and the vote was on 11 July, so I haven't counted the weeks. But, as noted by the notifications on his roster, there was all intention that he was returning to work.

*** RICHARD IAN FORD XXN MS DOUST

PN675

You haven't provided us with any evidence of any particular communication about that arrangement, have you?‑‑‑Well, the fact that it doesn't say here that he has left work, that there's a notification in there - like, although he's a casual, they've put it in as leave, would indicate that the communication between our roster people and the employee was that he was intending to come back, and we were intending to re-employ him.

PN676

Who writes the entries under the messages?‑‑‑We have one, or one of a number of people. I don't know who wrote this entry. There's three or four people in our office who could write the entry.

PN677

So we don't know how that entry came to be made there?‑‑‑Well, I know that one of the three or four people would've made that entry.

PN678

Could we go, please, to - - -?‑‑‑The employee may also have made that entry himself, because there is a system on there where they can leave messages.

PN679

Can we go a further five down from that last employee we were just referring to. If we go to the second lot of timesheets, it's the seven leaf in, if they're double-sided, printed?‑‑‑I think I have the correct employee.

PN680

Do you have that?‑‑‑I think I do.

PN681

It should have an entry up top, "May 15 2017 timesheet"?‑‑‑Yes.

PN682

Am I confusing the Commission?

PN683

THE DEPUTY PRESIDENT: Mine is double-sided, but I'm sure I can -

PN684

MS DOUST: Might Mr Jacka be excused, Deputy President. He has other obligations to another member of the Commission.

PN685

THE DEPUTY PRESIDENT: Sure. So this is in MFI2?

PN686

MS DOUST: Yes, it is.

PN687

THE DEPUTY PRESIDENT: How many pages in?

PN688

MS DOUST: It's seven.

*** RICHARD IAN FORD XXN MS DOUST

PN689

THE DEPUTY PRESIDENT: Of double-sided, or -

PN690

MS DOUST: One, two, three.

PN691

THE DEPUTY PRESIDENT: All right.

PN692

MS DOUST: On the right-hand side. So we've got - I want to put a proposition to you about what these record show, Mr Ford. This employee worked some hours on 26 May 2017; do you agree with that?‑‑‑Yes.

PN693

Did not work any further hours prior to the vote, that was on 11 July 2017?‑‑‑That's correct.

PN694

Next worked on - if we go over the page, on 7 October 2017?‑‑‑That's correct.

PN695

So, not working in the business for a period of some four months and two weeks?‑‑‑If that's the count, then that's correct.

PN696

If you go to the next page along, on the right hand of that page, you'll see there's an entry there, in relation to a new employee, who is immediately below that employee on the MFI3 list?‑‑‑Sorry, are we talking about the next employee down?

PN697

Yes, down in the list, and then the next page along, in MFI2?‑‑‑All right.

PN698

So, the description here of the role is - do you have any objection to me using those five words under the heading "Role", or is that commercial in confidence?‑‑‑No, that's fine.

PN699

"Darling Harbour, arrow, area." Is this someone who is working in the Darling Harbour area?‑‑‑Yes, it is.

PN700

"Arrow, sales staff." Is this someone performing sales duties?‑‑‑On that particular shift, yes.

PN701

And also, on each particular shift thereafter, for the rest of that week. Then, Wednesday, 19/07, "Rarotonga, Cook Island, whale research"?‑‑‑I suspect it was an entry made by the employee, knowing the employee.

*** RICHARD IAN FORD XXN MS DOUST

PN702

What I want to ask you is this. Were you aware that this employee was planning to go off and do that?‑‑‑This - yes. I was aware he was going to Rarotonga for a holiday, he was on leave. The fact that he has put that comment in there is consistent with his nature. It wasn't on request of the company.

PN703

Let's just be clear about something. This leave that employees are having: they weren't paid in respect of it, were they?‑‑‑No, they weren't.

PN704

And you have no obligation to put any of these employees back on for any further shifts when they put their hand back up again?‑‑‑Well, I'm not sure on that statement, because under the - under the unfair dismissals, there'd be some obligation for us to have a reason not to put them back on, because of their - despite their casual nature. But these employees, who have been longstanding - and you look at this employee, he has been with us since 2009, so he had every expectation, and I had every expectation that, on his return, he'd be back on the roster.

PN705

These entries in the left-hand column don't show the performance of deckhand duties, do they?‑‑‑Not in these particular shifts, no.

PN706

And they don't show the performance of host or hostess duties?‑‑‑Not in these particular designations.

PN707

And this was an employee - the company knew well in advance of this that the employee was going off to the Cook Islands; is that what you're suggesting?‑‑‑For a week, yes; maybe two.

PN708

Well, let's just be clear on this. How long are you saying this employee went off to the Cook Islands?‑‑‑The only information I have in here is that he was off for one, two, three, four, five days. But I am aware that he was longer than that, but I don't have the details with me right now.

PN709

All right. None of the material you've given us shows that this was a person who was performing deckhand duties at the time of the vote, or after the vote; is that correct?‑‑‑The information shown doesn't demonstrate that he was performing deckhand duties.

*** RICHARD IAN FORD XXN MS DOUST

PN710

And looking at the entries at the bottom of that page, this looks to be someone that's going off for a fair period of time, if they're conducting some research?‑‑‑Well, as I explained, he wasn't conducting research. I think that's a flippant comment made by him into the system. But with the nature of his relationship with the roster people, it was understood.

PN711

But there's nothing that indicates, in here, that there's some sort of scheduled date for return?‑‑‑We would have a date in our system, but I haven't provided that date. But that employee is still employed with the company, and, as you can see on the list, his last access of the system was 4 February 2018.

PN712

Well, Mr Ford, you haven't provided us with any documentation to show that there was some sort of access to the company from this time. That's just your assertion about what had happened, isn't it?‑‑‑No, as I explained, as it's the download from the system's records.

PN713

It doesn't show us whether that person worked a shift in one of the classifications covered by the agreement, does it?‑‑‑No, it doesn't show that.

PN714

Now, can we go further down. If we go down below that employee, another one, two, three, four - and again, this is an employee - you accept, in respect of this employee, that they weren't - - -

PN715

THE DEPUTY PRESIDENT: Just tell me how many you've gone down there.

PN716

MS DOUST: I'm sorry. It has gone down four.

PN717

THE DEPUTY PRESIDENT: From the top?

PN718

MS DOUST: No, gone down four from the last - - -

PN719

THE DEPUTY PRESIDENT: Yes, I know that, but can you tell me how many it is from the top?

PN720

MS DOUST: Yes, I'm sorry, I understand now. Sixteen.

PN721

THE DEPUTY PRESIDENT: Thank you.

PN722

MS DOUST: So if we go to 16, and we look at the timesheets, what we see is that this employee is recorded from 26 June - that's at page 18 of 60 in MFI1, Mr Ford and Deputy President.

*** RICHARD IAN FORD XXN MS DOUST

PN723

THE DEPUTY PRESIDENT: Yes.

PN724

MS DOUST: Now, none of the entries on that page show this employee working any shifts; do you agree with that?‑‑‑Yes, that's - that's an oversight of mine, because I looked down the first column, and it had him listed as a deckhand, and I didn't read the messages on the right-hand side. So, yes, I accept that. Are you talking about MFI1?

PN725

MFI1. I'm looking at page 18 of 60 in that bundle?‑‑‑Yes.

PN726

And this is the employee who is 16th on the list. So we don't have any records to show - - - ?‑‑‑And that's consistent with my notice on the MFI3, that says his last shift was 10/06, but I haven't picked that up in the timesheets.

PN727

Well, I don't see any entry on MFI3 referring to 10/06?‑‑‑Shift on or before for that employee is 10/06, isn't it?

PN728

I don't see that. We might be referring to someone different?‑‑‑Sorry, am I looking at the wrong - I'm on page 18 of 60, on the MFI1.

PN729

Yes, and I'm looking at the entry on MFI3 in respect of that employee. I'm not sure whether your Honour has an entry, 10 June 2017.

PN730

THE DEPUTY PRESIDENT: The first entry I have is 10 July, MFI2.

PN731

MS DOUST: Yes, I'm referring to MFI3.

PN732

THE DEPUTY PRESIDENT: Yes, 26 June is the first entry.

PN733

MS DOUST: Yes, although it's not a work shift; it's referred to as leave.

PN734

THE DEPUTY PRESIDENT: Yes.

PN735

MS DOUST: I'm sorry. MFI3 is the list.

PN736

THE DEPUTY PRESIDENT: Yes.

*** RICHARD IAN FORD XXN MS DOUST

PN737

MS DOUST: And I don't see an entry on that list as being - the shift on or before is 10 June.

PN738

THE DEPUTY PRESIDENT: Yes, I'm with you now.

PN739

MS DOUST: Correct me if I'm wrong, Mr Ford, but nothing in the timesheets shows that was a date that was worked?‑‑‑No, that's correct. I scanned the sheet, looked in the first column, which showed him working on those - he appeared to be working on those days, but didn't check the hours. So that's an oversight by me, and my other list is consistent. It says that his last shift before the vote was 10/06. So that would be consistent with that oversight.

PN740

There's no document that we have, is this right, that you've provided under the order to produce, that shows that employee working a shift on 10 June?‑‑‑I haven't come across one. I haven't been through each one of these. If it got mixed up - no, I haven't found one.

PN741

Can we go to the employee who is the 20th on the list. Do you have him? I'll just ask you to go in the MFI2, to the entries in respect of that employee. Do you have that?‑‑‑I do.

PN742

Does your Honour have that?

PN743

THE DEPUTY PRESIDENT: Yes.

PN744

MS DOUST: There should be entries for 10 July, 11 July, and then the 12th. Do you see, there's an entry there, "Can you please pay out my annual leave? Also, I have been getting any super" - I think that might mean, "Have I been getting any super?" but it might mean also, "I have not been getting any super", "Is this correct? Please call" - and it identifies someone there, "to discuss if any questions"?‑‑‑Mm-hm.

PN745

First of all, none of these employees was paid out any annual leave, were they?‑‑‑This employee was a trainee, on a traineeship.

PN746

And was asking for their annual leave to be paid out, on the 12th?‑‑‑It appears so.

*** RICHARD IAN FORD XXN MS DOUST

PN747

And no evidence of any work thereafter by that employee, in the timesheets?‑‑‑Well, they worked on the - deckhand, on the 10th and the 11th and 12th (indistinct) hours.

PN748

No, I understand that, but after that, after the 12th, there's no indication of any further hours?‑‑‑Not on this paperwork, no.

PN749

And a traineeship - did he finish up a period of training and was seeking the payout of his - any accrued entitlements?‑‑‑I'd have to check on the details of what he actually was doing.

PN750

Had he completed his traineeship?‑‑‑I'd have to check on that. I don't have that detail in front of me.

PN751

Well, you couldn't say this was a person who was going to be covered by the agreement if it was a trainee who was finishing up on the very day after the vote was held, could you?‑‑‑Well, if I - yes, I could, because at the time of the vote, he was employed as a deckhand on the vessels. And going forward -

PN752

Do you say - the employees left after the 12th, haven't they? Isn't that what has happened?‑‑‑I don't know.

PN753

You don't know?‑‑‑I don't know. I would have to check. It doesn't show on this record what has happened. The employee is still -

PN754

Well, can I suggest this, Mr Ford: if this employee had got up on the 12th, without notice, and disappeared, that would be something you'd recall?‑‑‑No, he hasn't got up on the 12th, without notice, and disappeared.

PN755

I'm saying, if that had happened, you would recall?‑‑‑I recall a conversation with this employee and the person that it references. And I also have records here that he last accessed the system on 30 October 2017.

PN756

Well, I'm not asking you about accessing the system, Mr Ford. I'm asking you this: this employee came to the completion of a period of traineeship, did he?‑‑‑I don't know. He has asked if he can pay out his annual leave. I can't determine from this whether he has finished or hasn't finished. He is simply asking for it. I don't know.

*** RICHARD IAN FORD XXN MS DOUST

PN757

In your experience, when do employees ask for their annual leave to be paid out?‑‑‑When they're leaving.

PN758

Right, and are you saying you can't tell us whether or not that was the circumstance that occurred in this instance with this employee?‑‑‑Yes. I don't know; I can't tell you that for certain here, because I don't have the full records of this employee with me.

PN759

And you could've had no expectation, as of the time you were scheduling the vote, that this agreement would be approved and in operation by 12th July, could you?‑‑‑There's only - my advice from Mr McCarthy was that he was employed at the time of the vote and covered by the agreement.

PN760

No, Mr Ford, I'm not asking you that. You appreciated, when you put the agreement out to the vote, that, after the agreement was voted on, if the vote was in favour, you would then need to make an application to the Commission, go through a process of approval, and the Commission would need to make a decision?‑‑‑Yes.

PN761

You didn't think that would happen the very day after the vote, did you?‑‑‑But I can't - but I don't know that I was notified prior to this that he was leaving.

PN762

Does that mean your answer to my question is, yes, you didn't think that would happen the day after the vote?‑‑‑Can you ask the question again?

PN763

You must have understood that it would take a period of some weeks after the ballot was held for the agreement to operate; correct?‑‑‑Yes, I understood that.

PN764

And I suggest to you, you would've known, prior to 11 July, if this employee was going to be ceasing shifts and asking for their annual leave to be paid out, effective on the 12th?‑‑‑No, I wouldn't have.

PN765

So this just caught by surprise on that day, did it?‑‑‑This may have been his first reference to it. He has worked the shift, and then he said, "I've decided to leave, and I've left." I don't have that information in front of me.

PN766

You don't know? You're saying you don't know?‑‑‑I don't have that information in front of me.

*** RICHARD IAN FORD XXN MS DOUST

PN767

You can't tell us for sure now? Would you accept this: it would be a fairly unusual circumstance, wouldn't it, where your employee simply tells you at the end of a shift, "All right, that's it for me now, please pay out my annual leave"?‑‑‑Not in relation to this particular employee.

PN768

Is this something that happens quite a bit with the casual employees at Manly Fast Ferry?‑‑‑No, it's not.

PN769

All right. Now, you can't point us to any point in time at which you're aware that this employee would be finishing up on 12 July, can you?‑‑‑Not with these documents, but I'm sure - maybe someone has something, records. But this employee is a particular case, and there's personal circumstances around his employment and his relationship with employees. So he is a special consideration within (indistinct) and we've worked very closely with his father and him to provide him employment and a secure place for him to come to work.

PN770

Tell me something. Do you say that the agreement you've put up covers trainees?‑‑‑No. We tried to cover trainees, but I don't think - I think we removed the traineeship from the agreement.

PN771

All right?‑‑‑And it was this particular incident that was an example of why we wanted to include that.

PN772

THE DEPUTY PRESIDENT: Are you moving to another example.

PN773

MS DOUST: Yes.

PN774

THE DEPUTY PRESIDENT: Well, I'll adjourn, then, until 10 am tomorrow.

PN775

MS DOUST: Sorry, I hadn't realised. Thank you.

PN776

THE DEPUTY PRESIDENT: Thank you.

PN777

MS DOUST: I'm sorry, Deputy President. The issue of providing Mr Garrett with the timesheet material, with the names excised, overnight, for the purpose of undertaking a BOOT analysis - I raised this earlier on today, and I wonder whether you would seek to hear that application, so that we can deal with that tomorrow, and in fact proceed with that analysis overnight.

*** RICHARD IAN FORD XXN MS DOUST

PN778

THE DEPUTY PRESIDENT: Is the objection still pressed?

PN779

MR McCARTHY: Yes.

PN780

MS DOUST: Our submission on it is simply this, that it is necessary, in order to undertake a proper analysis of the Better Off Overall Test, which the Commissions is required to do, that some reference be made to actual working patterns of employees. These materials show us the actual working patterns of employees. On my instructions, this issue has been canvassed with the employer on several occasions in the past, and the employer has provided what it refers to as "Indicative rosters". Deputy President, you might recall seeing a number of BOOT comparisons which have been completed by Mr Ford, which appear in his statement I think at RF16.

PN781

Now, there's a number of assumptions that are fed into the analyses that he undertakes, and the assumptions are about when the employees are working, because, as you would appreciate, having applied the BOOT on a number of occasions, it will very much depend upon when the employee is working, what penalties, shift loadings and so on are payable. So we say it's not appropriate for the Commission to be left simply conducting an analysis on the basis of an imaginary roster, the MUA being a bargaining representative. It should have a fair opportunity to make submissions by reference to the real evidence about working patterns of employees, and that evidence is contained within MFI1 and MFI2. Those are the submissions.

PN782

Mr Garrett - can I say, if the Commission is minded to limit access to those documents, it would be limited to Mr Garrett. He well understands his obligations to the Commission in respect of these matters.

PN783

MR McCARTHY: I don't want to repeat what I've already said, your Honour, and our situation hasn't changed in that regard. But it does occur to me that there is another possible problem, issue, and that is this. We're now, after so many, many months of preparation of materials to even get here today, at this late stage, talking about an overnight analysis by the MUA of shift rosters. I'm not quite sure how the applicant is going to be in a position to effectively respond to that tomorrow, even if it was to go ahead. I raise that as an issue.

PN784

THE DEPUTY PRESIDENT: Well, if Mr Garrett has to stay up all night - - -

PN785

MR McCARTHY: I meant from our perspective.

*** RICHARD IAN FORD XXN MS DOUST

PN786

THE DEPUTY PRESIDENT: Well, if a document is produced with which you take issue, then leave will be granted for you to be able to respond.

PN787

MR McCARTHY: Thank you, your Honour. It's a matter that - my instructions are very clear to stand on the opposition for the reasons I've explained this morning, in terms of the confidentiality and the other concerns.

PN788

THE DEPUTY PRESIDENT: Well, I again repeat, there is no confidentiality issue here. I have to determine questions of the BOOT. And Ms Doust is correct; it must be based upon examples of rostering. If the union - a bargaining representative challenges those rosters, then it's perfectly entitled to do so. No, you can't say anything, thank you.

PN789

MR McCARTHY: My client can't say anything, and I received these instructions early this morning, before he went into the witness box, your Honour.

PN790

THE DEPUTY PRESIDENT: Well, do you want to take some further instructions now? I'll released the witness from the witness box.

PN791

MR McCARTHY: Perhaps we can take five minutes. Is that possible?

PN792

THE DEPUTY PRESIDENT: Yes. All right, I'll adjourn for five minutes.

<THE WITNESS WITHDREW [4.07 PM]

SHORT ADJOURNMENT [4.07 PM]

RESUMED [4.11 PM]

PN793

THE DEPUTY PRESIDENT: Yes.

PN794

MR McCARTHY: Your Honour, the applicant remains opposed to the proposal but I believe I can better explain why the exercise itself would be futile and that is this, that what emerged from the production of the material under the order on Friday - the order to establish the last three shifts worked by employees and who was the employer et cetera - now has generated what shifts were worked by employees back then.

*** RICHARD IAN FORD XXN MS DOUST

PN795

What is significant is to understand how that will all change when the new agreement comes in. For example, under the current situation that impacts on those shifts worked under the material provided last Friday is the fact that under the Noorton Pty Ltd Tourism Agreement they're in the penalty rates on weekends. Under the Ferries Agreement, there are penalty rates under its old Ferries Agreement.

PN796

So at the moment, the way - and this is reflected in that material, the approach taken by the rostering employee is that they favour longer serving employees for the rosters on ferries on weekends to allow them to earn more, because of their long period of service.

PN797

The indicative rosters that have been prepared and were used extensively in the negotiations before - not only between the parties but also in proceedings before Cambridge C, Dean C, Watson DP and were not debated, in fact, they were regarded as very useful tools in the discussion and negotiations between the parties, are designed to take into account the approach and the provisions proposed by and that would operate under the new agreement.

PN798

For example, talking in comparison to what I was just alluding to as to what is the situation now and was the situation last July when this work was done, under the new agreement everybody would be on the same rates survey, Sunday, any day of the week, because it is a common arrangement as a consequence of which it was very well understood during all of these discussions that what was is not going to be relevant for the purposes of comparison purposes as to what will be.

PN799

I might also add that there is material already before you which was attachment RF36 to Mr Ford's second witness statement, which was provided 1 February, and there is in response to the material raised by the union at attachment RF36 at a request from Mr Jacka by email on 18 January, the details of the roster from the company provided to the MUA underpinning the indicative calculations.

PN800

In other words, the material has been there since 18 January 2018, as requested by the MUA, for the MUA to be able to do the type of calculations that it asserted that it is not capable of doing.

PN801

So there are two significant issues here. The first thing is what's going to happen is if the union's application is granted, we are going to be taken off down a rabbit hole of having a debate about the BOOT test in relation to hours worked under arrangements that are going to be irrelevant under the enterprise agreement.

PN802

What is also being put forward is that on any number of previous occasions during these negotiations, be it in front of the Tribunal and between the parties, have been very well understood as to the significance and appropriateness of using indicative rosters over a four-week period and the material to allow the union to calculate that was provided on 18 January.

PN803

Might I also say this, why the indicative rosters are further understood between the parties and appreciated in front of the Commission as to their appropriateness and relevance, because they also try to take account of the notion that not everything is a casual employee, but certain employees will be casual employees, certain employees will be part-time employees and a certain number of employees will be full-time employees.

PN804

And, as a consequence of that, it's going - it allows the Commission to get a sense of not just the status of casual employees under the old instruments, but rather what will be or not be the financial benefits of the employees under the new agreement in those various categories of part-time, full-time and casual into the future. And that's why those calculations are so significant.

PN805

It is why they play such a substantial role in the negotiations. It is why they are regarded as substantial and valid, and significant in front of the Commission itself on at least three occasions and it's on the basis of that that we think, putting aside anything else, the task that is now proposed at such a late hour by the MUA is an irrelevance, quite frankly, to the question of the BOOT for the reasons I've just mentioned.

PN806

MS DOUST: Well, Deputy President, nothing beats in my submission looking at the real position as revealed in that material and we say that we shouldn't be confined to examining a hypothetical, within the limitations dictated by the employer if the Commission is to get - - -

PN807

THE DEPUTY PRESIDENT: It's not a hypothetical. The examination of the BOOT is against the awards and what is proposed in the agreement, not the shifts that were worked previously.

PN808

MS DOUST: No, I understand that, but - - -

PN809

THE DEPUTY PRESIDENT: Mr McCarthy has a very good point.

PN810

MS DOUST: But what that shows us is it enables us to test whether or not the employer's contentions about what are representative shift patterns is correct. So we can look at one point in time, have a look at the shift pattern that are worked in that period, compare them with - - -

PN811

THE DEPUTY PRESIDENT: The shift patterns won't be the same under the new agreement. Don't you concede that?

PN812

MS DOUST: No. That's not conceded. We say that under the agreement it is very much in the discretion of the employer as to how it will organise its labour and so far as - - -

PN813

THE DEPUTY PRESIDENT: Ms Doust, I repeat again, the Commission does not go behind what was worked before. It looks at what the shifts that apply under the terms of the agreement are in comparison to the modern awards.

PN814

MS DOUST: I accept that. I accept that, but we say that the hours that have been worked in the past will be of assistance to the Commission in understanding the hours that will be worked in the future, the spread of hours.

PN815

THE DEPUTY PRESIDENT: The spread of hours will be governed by the award in comparison to what the spread of hours say in the agreement. That is where the comparison lies, not on what occurred five years ago or two years ago or one month ago - - -

PN816

MS DOUST: No. This is at the time of the vote. Yes.

PN817

THE DEPUTY PRESIDENT: Yes. That's got nothing to do with the vote. I can see why these documents were sought in respect to the question of whether people were eligible to vote.

PN818

MS DOUST: Were employed at the time. Yes, I accept that was the purpose in seeking them, but we now say that that evidence about working patterns is relevant to the question about whether or not the BOOT will be satisfied. Because if you take those examples and do a comparison of if those patters were worked now, compare what would be paid under the award, compared with what would be payable under the agreement, then that is - - -

PN819

THE DEPUTY PRESIDENT: But the patterns have to be allowable under the modern award.

PN820

MS DOUST: I'm sorry?

PN821

THE DEPUTY PRESIDENT: The patterns have to be consistent - - -

PN822

MS DOUST: Yes.

PN823

THE DEPUTY PRESIDENT: - - - in the modern award to show what happens under the agreement.

PN824

MS DOUST: Under the agreement, yes.

PN825

THE DEPUTY PRESIDENT: So what has the old pattern got to do with it?

PN826

MS DOUST: Well - - -

PN827

THE DEPUTY PRESIDENT: How do you make a comparison against the old material?

PN828

MS DOUST: Will you just excuse me, Deputy President? I think we might be speaking at cross purposes and I would appreciate an opportunity just to get some clarification about that.

PN829

THE DEPUTY PRESIDENT: All right.

PN830

MS DOUST: We say that under the agreement whilst there's a span of hours, there's not set rosters, so there's not any limitation. What we have been presented with is a bunch of what is said to be indicative rosters, and we thing the way - - -

PN831

THE DEPUTY PRESIDENT: That's not what is said at all. They are said to be documents produced under a notice to produce to demonstrate who and what people were working at the time of the vote.

PN832

MS DOUST: No, I accept that. I am talking about the material which is annexed at the end of or in Mr Ford's statement at RF16, and then annexed to his statement, his reply statement at RF36.

PN833

Now, we have no basis - this was annexed purely on the basis that it is asserted by the employer that these are working patterns that are relevant in the business. So it's purely their say so as to what patterns it has worked and/or intends to work, and we don't say that there is anything in the agreement that provides exactly how those patterns must be worked if the agreement is approved and comes into effect.

PN834

THE DEPUTY PRESIDENT: Well, I presume you are going to take me to the terms of the agreement at some point.

PN835

MS DOUST: I will - - -

PN836

THE DEPUTY PRESIDENT: Well, I am going to defer consideration of this matter until you do so, because I am not convinced that you are correct about this.

PN837

MS DOUST: Yes.

PN838

THE DEPUTY PRESIDENT: And I apprehend that it might have something more to do with an underpayment claim that has been agitated throughout these proceedings, and if that's the case, you can get this documentation, if you take it to another place.

PN839

MS DOUST: Deputy President, can I respond to that immediately and say this; I can assure you that the notion of conducting an analysis of the time sheets is one which is entirely mine, because it appears to me that analysing the hours that were worked in that period might shed some light on whether or not the indicative rosters proposed by the employer hold up, and I can give you every assurance that the desire to have that analysed is something that comes from the legal representatives and certainly not from the union or Mr Garrett.

PN840

THE DEPUTY PRESIDENT: All right. Well, that would - - -

PN841

MS DOUST: I want to make that clear.

PN842

THE DEPUTY PRESIDENT: Ms Doust, that would be the case in every approval process.

PN843

MS DOUST: Yes.

PN844

THE DEPUTY PRESIDENT: That we would have to see what the indicative rosters are proposed to be.

PN845

MS DOUST: Yes.

PN846

THE DEPUTY PRESIDENT: Well, I can tell you, it is putting this whole exercise into disrepute. Is it any wonder that people are critical of this exercise, because that would be an impossible task. The roster could change next week. How would we ever know?

PN847

MS DOUST: I accept that and we say that what gives us the best indication as to future behaviour is past behaviour. That's the basis on which we advance our argument about access to the material.

PN848

THE DEPUTY PRESIDENT: Well - - -

PN849

MS DOUST: That if you want to know what someone will do in the future, you look at what they've done before.

PN850

THE DEPUTY PRESIDENT: Well, that's a rather crude approach I must say.

PN851

MS DOUST: I don't always purport to rise above the level of crudity, Deputy President. I hope occasionally I get there.

PN852

THE DEPUTY PRESIDENT: Well, as I've already indicated, I will defer further consideration of this matter when you discuss the matter.

ADJOURNED UNTIL TUESDAY, 13 FEBRUARY 2018 [4.25 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

RICHARD IAN FORD, SWORN........................................................................ PN143

EXAMINATION-IN-CHIEF BY MR MCCARTHY....................................... PN143

EXHIBIT #1 WITNESS STATEMENT OF RICHARD IAN FORD DATED 15/12/2017 PN153

EXHIBIT #2 WITNESS STATEMENT OF RICHARD IAN FORD DATED 01/02/2018 PN161

CROSS-EXAMINATION BY MS DOUST........................................................ PN183

THE WITNESS WITHDREW............................................................................ PN257

RICHARD IAN FORD, RECALLED................................................................ PN257

CROSS-EXAMINATION BY MS DOUST, CONTINUING........................... PN257

MFI #3 LIST OF NAMES IN ANSWER TO ORDER TO PRODUCE......... PN615

THE WITNESS WITHDREW............................................................................ PN792

Fair Work Commission Transcripts

AG2017/3080, Transcript of Proceedings [2018] FWCTrans 48 (28 February 2018)