C2019/557, Transcript of Proceedings [2019] FWCTrans 101 (26 April 2019)

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PN1

THE COMMISSIONER: Good morning everyone. I'll take the appearances in this matter please.

PN2

MS L DOBSON: Good morning. If the Commission pleases, Dobson, initial L, for the applicant.

PN3

THE COMMISSIONER: Thank you very much, Ms Dobson.

PN4

MR COONEY: Thanks, Commissioner. Justin Cooney for Transport Workers Union and with me is Peter Banbury.

PN5

THE COMMISSIONER: Thank you very much, Mr Cooney. All right. We've obviously dealt with this matter previously in conference and that it was not able to be resolved. We're here today to deal with the matter in arbitration. I have obviously received and read the submissions and witness statements that you both provided. Thank you very much.

PN6

I might just ask firstly, I think, Ms Dobson, you have one witness that you seek to rely upon?

PN7

MS DOBSON: Yes, that's correct.

PN8

THE COMMISSIONER: Mr Cooney, do you intend to cross-examine Mr Rolfe in regard to his evidence?

PN9

MR COONEY: Yes, I do, Commissioner.

PN10

THE COMMISSIONER: Mr Cooney, I think you've got three witnesses. Ms Dobson, do you intend to cross-examine each of those witnesses?

PN11

MS DOBSON: Yes, Commissioner.

PN12

THE COMMISSIONER: All right, fine. Anything further that we need to deal with at the outset?

PN13

MR COONEY: No, Commissioner.

PN14

THE COMMISSIONER: No? All right, Ms Dobson, over to you.

PN15

MS DOBSON: Thank you very much. With your permission I will call Mr William Rolfe.

PN16

MR COONEY: That's a demarcation dispute right there.

PN17

THE COMMISSIONER: Yes, she's not to go out there.

PN18

THE ASSOCIATE: Please state your full name and address.

PN19

MR ROLFE: John Anthony John Rolfe (address supplied).

PN20

THE COMMISSIONER: Thank you very much, Mr Rolfe.

<WILLIAM ANTHONY JOHN ROLFE, SWORN [10.09 AM]

EXAMINATION-IN-CHIEF BY MS DOBSON [10.09 AM]

PN21

MS DOBSON: Mr Rolfe, could you please state your name and occupation for the record?‑‑‑William Anthony John Rolfe and I'm employed as the general manager for Express Parcels in Victoria and Tasmania.

PN22

Have you made a statement in these proceedings?‑‑‑Yes.

PN23

Does it run to 28 paragraphs?‑‑‑Yes.

PN24

Is it dated the 14th of March 2019?‑‑‑Yes.

PN25

Have you had an opportunity to review your statement recently?‑‑‑I have.

PN26

And is the statement to your knowledge true and correct?‑‑‑It is

PN27

If the Commission pleases, I tender that statement.

*** WILLIAM ANTHONY JOHN ROLFE XN MS DOBSON

PN28

THE COMMISSIONER: Thank you I'll mark the statement of Mr William Rolfe of 28 paragraphs dated 14th of March 2019. I'll mark that TT1. Thank you.

EXHIBIT #TT1 STATEMENT OF WILIAM ROLFE DATED 14/03/2019

PN29

MS DOBSON: Thank you. Mr Rolfe, a couple more questions please. Can you please tell the Commission what is the impact of freight volumes around public holidays at your site?‑‑‑So within our transit matrix, our road business doesn't operate on public holidays. So, as a result of that we see volume from five days' worth of activity pushed into four or in some cases pushed into three days. So, we see the average volume per day swell. And when you couple that together that we service the retail sector as one of the major players, it then obviously has a big impact on the amount of volume that we move on a given day.

PN30

Thank you. And Mr Rolfe, if I can hand you this document please. To the best of your knowledge, Mr Rolfe, does this graph correspond to your recollection, and is it a true representation of unplanned absenteeism of employees at the Toll site at Melbourne Airport. Yes, it is. And what does this document show in relation to unplanned absenteeism at the Melbourne airport?‑‑‑Yes, it is.

PN31

What does this document show in relation to unplanned absenteeism at the Melbourne Airport site?‑‑‑It shows that our average for unplanned absence per day is between 15 and 16 employees, which is the red line. Then our blue bars indicate the days or the individuals absent the day before or after a public holiday.

PN32

Can you please explain to the Commission about operations on public holidays?‑‑‑So, for public holidays as a result of our transit matrix being closed the site doesn't operate for National Public holidays where all states have alignment. We only see a small operation at Melbourne Airport for a non-aligned public holiday on a Tuesday Wednesday or Thursday where we're required to reset the long-haul network and empty out those trials so they can return to Sydney or Queensland, and that's with a very small handling workforce.

PN33

Great. Then if I can provide you with one final document please?‑‑‑Thank you.

PN34

To the best of your knowledge, does this document reflect a true representation of the 2019 roster published on the 31 December 2018?‑‑‑Yes, it does.

*** WILLIAM ANTHONY JOHN ROLFE XN MS DOBSON

PN35

Can you please explain to the Commission your intention in relation to the implementation of that roster?‑‑‑So, the intention of this roster was to meet the obligations under the local agreement. As per the provision, we're required to present our proposed roster for 2019 by the end of the calendar year. The intent of this roster was to show the workforce that there was going to be a change to the new rostering program. We obviously were having ongoing consultation with the TWU and the workforce at that time and we needed to put a roster up of such because we knew that had to be had to be a level of change. The intent of this was to show that change and we recognised that through this that there's the potential for some unfairness through the allocation of Mondays and Fridays particularly. So, the intent would have been to put back the blackout days which helped trigger the rotation of those days because the goal throughout this process is to ensure that the rostering is fair whilst also meeting the needs of our customers.

PN36

Thank you. That's the evidence in chief of this witness.

PN37

THE COMMISSIONER: Thank you. Just before I ask Mr Cooney whether he has anything further for you, I think Mr Rolfe, from what I understand from the submissions, in 2018 your submissions or the submissions provided on behalf of Toll indicate that there were 12 blackout days in 2018?‑‑‑So the 12 blackout days which you're referencing attached to that day of rotation for, so in each month there is a blackout day which allows for then the sequence of days to push forward a day. So then that allows for there to be a fairer distribution of the RDOs which fall on a Monday or a Friday.

PN38

Yes. In terms of the changes that the business had proposed to introduce in 2019 how many additional blackout days would that add to the existing number of twelve?‑‑‑In the roster which is presented now?

PN39

Yes?‑‑‑It would have added 1 2 3 4 5 6 - 23.

PN40

23 plus the 12?‑‑‑Yes.

PN41

Thank you. Mr Cooney.

PN42

MR COONEY: Sorry, just on matter.

PN43

MS DOBSON: Sorry, I moved a bit quickly there, Commissioner. My intention was to have each of those documents and entered.

PN44

THE COMMISSIONER: That's fine. I'm happy to - no objection to that, Mr Cooney?

PN45

MR COONEY: No, Commissioner.

*** WILLIAM ANTHONY JOHN ROLFE XN MS DOBSON

PN46

THE COMMISSIONER: No? Well, I'm happy to mark the unplanned absent days adjacent to public holidays document TT2 and the final document that was handed up with the proposed dates for 2019, TT3.

EXHIBIT #TT2 UNPLANNED ABSENT DAYS ADJACENT TO PUBLIC HOLIDAYS DOCUMENT

EXHIBIT #TT3 PROPOSED DATES FOR 2019

PN47

MS DOBSON: Thank you.

PN48

MR COONEY: Just with TT3, Commissioner, we've also attached that to the statement.

PN49

THE COMMISSIONER: Yes.

PN50

MR COONEY: Yes. Thank you.

CROSS-EXAMINATION BY MR COONEY [10.16 AM]

PN51

Mr Rolfe, I'm guessing that (indistinct) got a slight headache this morning?‑‑‑It does.

PN52

So, if I could take you to item four of your statement and I think you might have dealt with this a bit earlier on examination with Ms Dobson?‑‑‑Yes.

PN53

But for clarity, on Victorian-only public holidays the site does open at the limited capacity?‑‑‑Yes.

PN54

If I could take you to item seven of your statement?‑‑‑Sorry?

PN55

Item 7 of your statement?‑‑‑Yes. Sorry. Yes.

PN56

You talk there about increases in freight volumes and customer demands and then use the time periods. Is there any information about that being provided to employees? And I think you referred earlier to a transit matrix?‑‑‑Yes.

PN57

Has the information from that been shared with the employees?‑‑‑No.

*** WILLIAM ANTHONY JOHN ROLFE XXN MR COONEY

PN58

Again, at item 9 of you statement you talk it out express parcels financially and operationally under-performing. Has the details around that being shared with employees?‑‑‑No. I actually - can I correct that answer? So, overall business updates are provided to the employees from time to time. So, in that we cover off safety, service and cost messages. But they're more general as a global view versus a specific Melbourne Airport view.

PN59

So when you say global view, I'm guessing that's not encompassing all the Toll Group's operations. But what - what operations kind of narrow that down for your?‑‑‑So, that's how Toll globally is performing.

PN60

But the specifics is to Express Parcels?‑‑‑No.

PN61

If I could take you to item 16 of your statement?‑‑‑Yes.

PN62

Now, at the risk of getting lost in semantics, the blackout days that you refer to under the 2019 - well, proposed 2019 calendar, should be marked TT3?‑‑‑Yes.

PN63

They're not black out days in the same sense as currently operates, which I think and I'm not sure whether you had the benefit of reading Mr Packer's statement but he describes in the step dates and you alluded to it earlier when he said that the blackout days under the 2018 calendar and presumably earlier calendars, are there to ensure they're the roster for roster for RDOs ensures each employee gets a different week day, month by month. So effectively, you won't have a group always getting a Friday and a group always getting a Monday in RDOs?‑‑‑Sorry, is there a question?

PN64

The question to that is that the blackout days that you referred to in 2019?‑‑‑Yes.

PN65

That's a different concept to the blackout days as used in the context of the 2018 and previous calendars?‑‑‑I would disagree because the day - the way in which - whether it is called step day or blackout day, we as the employer have no ability to roster an RDO on that day.

PN66

So putting aside the proposed 2019 calendar?‑‑‑Yes.

PN67

When you refer to the blackout dates 2018 and previous, Toll has no capacity to roster an employee to work on that day?‑‑‑For an RDO be rostered on that day.

*** WILLIAM ANTHONY JOHN ROLFE XXN MR COONEY

PN68

And why do you say that there's no ability?‑‑‑Because as per the previously communicated rosters those days are blacked out. So once the roster is set for the 12 months the roster is set.

PN69

But your evidence and I guess the intention of the case is to say that Toll has - it's Toll's prerogative to set that roster at the beginning of each calendar year?‑‑‑I'm not sure whether it's our prerogative. We're obligated under the local agreement to roster the RDO roster for the following twelve months.

PN70

And that gives you no discretion at the beginning of each calendar year to set the step days as you might wish?‑‑‑So, I can't speak for the rostering of the 28 team schedule because I wasn't part of that. Obviously, I'm part of the 2019 roster and as a result of us being here today I think demonstrates it's not that easy to change the roster.

PN71

I think you commenced with Toll late 2017?‑‑‑3 April 2018.

PN72

Thank you. I'll take you to item 19 of your statement?‑‑‑Yes.

PN73

And you say there that the current system does not have blackout days structured around the needs of the operation or to service high flight levels and higher customer demands around the peak times?‑‑‑Hm-mm.

PN74

Given your previous answers and that this is the first calendar where you've had the ability to - or you're the one that's actually doing the roster?‑‑‑Yes.

PN75

How to the best of your knowledge - how do you understand that the previous calendars were done then?‑‑‑How were they done?

PN76

Yes?‑‑‑My understanding was that the rolling pattern continued. So, in terms of if you look at the 2019 table that was presented that you'll notice that the first allocated work group on 2 January was work group five. Then you'll notice on - at the bottom which has been cut off, but you could see that on 31 December 2019 that that work group would have been work group 10. Yes?

PN77

Yes?‑‑‑Yes. So then obviously, that then workgroup 11 would have been on the 1st and then work group 12 would have been on the first working day of the 2020 calendar. So my understanding, it was just a continuation of that rolling period and then there would be all the way through to 20 days and then there would be a blackout day and then work group one would start again.

*** WILLIAM ANTHONY JOHN ROLFE XXN MR COONEY

PN78

Right. I think there's going to be evidence given that this system commenced some 16, 17 years ago. On what you've just said there's basically a continuation from year to year of the allocation of days. So you take into account the previous year where a particular work group might have finished and that factors into the following year in setting the calendar. Is that a fair comment?‑‑‑It's a fair comment for you to make, yes. So, I can't speak to the rostering prior to my time.

PN79

Yes?‑‑‑So, all as I can communicate is from my understanding is that it rolls and then as over that, just is a continual cycle. So, it doesn't take into account any analysis of the previous year or any the redistribution of RDOs, et cetera. It's just a pure rolling mechanism that moves from one month to the next.

PN80

Yes, but the other thing I guess is that given your seeking efficiencies out of the proposed calendar year, you'd have some understanding of how the previous calendars have worked, just for the nature of your job and what you did?‑‑‑So, that's my understanding. It's that rolling mechanism.

PN81

I'm going to take you to item 20?‑‑‑Yes.

PN82

You say the effect of this is the most experienced, efficient and productive employees are absent on days which are most critical to the operation. How would you define the most experienced, efficient and productive employees?‑‑‑As our permanent workforce.

PN83

So, it's purely on the basis that if you're a permanent employee ergo, you're the most experienced, efficient and productive employee?‑‑‑Yes.

PN84

I'll take you to item 23(c) of your statement?‑‑‑Yes.

PN85

You say there that each employee will be guaranteed 12 RDOs per calendar year, instead of some work groups only been allocated eleven RDOs?‑‑‑Yes.

PN86

Now again, I accept this isn't within your direct knowledge, but on the system that you were describing as currently in operation it's a multi-year system so in fact some employees could be getting 13 RDOs in one year and then 11 RDOs in the next?‑‑‑In the current rolling process?

*** WILLIAM ANTHONY JOHN ROLFE XXN MR COONEY

PN87

Yes?‑‑‑Yes. Yes. There is an unevenness to the distribution of days taken. Yes. And for clarity, that's in reference to the work groups that start or finish at the end of the year which we've described earlier.

PN88

If I could take you to 24(a) of your statement?‑‑‑Yes.

PN89

You say there it is anticipated there'll be a reduction in the risk of incidents. What evidence have you got for that?‑‑‑So, in reference to no physical evidence with me today, but in reference to we - there's a familiarity that comes with engaging your permanent workforce. So, every time that we need to move away from that permanent workforce we bring an inexperienced operator into our network. And as a result of that inexperience, comes risk. So, the goal is to have more of our experienced operators available at our busiest times.

PN90

Is there hard data around that?‑‑‑Yes.

PN91

I'll take you to item 24(d) of your statement. efficiencies and high productivity associated with handling and delivery of freight during peak times?‑‑‑Yes.

PN92

Is there hard data around both efficiencies and higher productivity during peak times and the employees that perform it?‑‑‑Yes.

PN93

And has that been provided to the employees? Are they aware of?‑‑‑No.

PN94

Just one final question at item 17 of your statement, you talk about employees have the ability to work on their allocated and cash in the RDO, instead of being required to be absent. Are employees ever requested to work an RDO and in return, I think alternate days are set or compensation is paid to them?‑‑‑So, there is - in reference to compensation, compensation is only the payment of the hours worked on that nominated day.

PN95

Yes?‑‑‑Or the taking of the accrued RDO on another day. So, there's no increase to compensation for them and that the request to work in RDO is at the discretion of the employee.

PN96

Yes. All right, nothing further Commissioner.

PN97

THE COMMISSIONER: Thank you. Mr Rolfe, just before I ask Ms Dobson whether she has anything further for you?‑‑‑Yes.

*** WILLIAM ANTHONY JOHN ROLFE XXN MR COONEY

PN98

Can I just clarify my understanding? I think you've said that whatever you want to call these days - blackout day, step days, whatever it is, that you indicated in your responses in cross-examination that they are the same in that the business has no ability to roster RDOs on any of those days within the field?‑‑‑There's no RDOs on that day.

PN99

Yes. But is it also fair to say that the purpose of the days is different, in that if you want to call them - well, the days in 2018 and prior to that were simply blocked out to ensure that employees didn't have their RDOs falling on the same day. So, they were days that were put into the roster to ensure that employees took their RDOs on different days over the cycle?‑‑‑Yes.

PN100

Whereas now, the days that you're proposing have a different intention and that intention is to enhance the productivity and the cost saving objections that you've spoken about. Is it fair to say that the days that were blocked out in 2018, compared to the new days that are now intended to be blocked out in 2019, they do have that different objective?‑‑‑Yes.

PN101

Yes, okay, that's fine. Thank you very much. I just wanted to test my understanding in regard to that. So, I guess the days in 2019 now have two objectives. One to enable that rolling roster but also to enhance the productivity and the cost saving objectives you've identified?‑‑‑Yes.

PN102

Thank you very much. Ms Dobson, anything further for Mr Rolfe.

PN103

MS DOBSON: Just a few more questions thank you Commissioner. For the purposes of consultation in this matter wit the TWU and site delegates, what information was provided?‑‑‑In terms of a formal presentation there was none. It was just an ongoing discussion in terms of how do we increase the amount of the - or the available workforce on given days. So, it was more of a general discussion in terms of the theme which we were trying to achieve in terms of increasing the amount of workforce which is available at those peak periods. Because if you look at the absenteeism discussion you can see that on average, we've got 15 people or 16 people away a day. Then you increase that with the amount of annual leave and I appreciate that annual leave is planned and that - the decision of the company. And then you've also got a further now 15 to 20 which are unavailable due to the RDO rosters, where they're in a position where we've potentially got 50 of our 250 people away on a given day. So that the feedback then was the guys that we need to reduce the amount of people which are away on those days and then explain to them that you know the reality is, of those 15 to 20 which are in that nominated RDO work group, that that's a resource which has to be then replaced and as a result of that replacement requirement there is then an increasing cost. So that was the outlining of that discussion versus a formal presentation.

*** WILLIAM ANTHONY JOHN ROLFE XXN MR COONEY

PN104

What, if anything, was explained in terms of why, or the impact of what you were trying to talk about?‑‑‑So, again we communicated that the current financial performance without going into specifics of express parcels is not where our shareholder would like it. And as a result of that the business has been gone through a number of transformational changes over the last three years which is investment in equipment, investment and IT, consolidation of sites et cetera to improve our current operating model.

PN105

Other than the requirement to publish the calendar each year which you've given evidence about, are you aware of any other restriction or requirement in the local agreement or otherwise, in relation to the schedule and of RDOs?‑‑‑No, I'm not.

PN106

Thank you very much.

PN107

Thank you very much, and thank you very much Mr Rolfe. You might not stand down. You're obviously free to remain in the hearing room now, if you wish to do so.

PN108

THE WITNESS: Thank you for your time.

PN109

THE COMMISSIONER: Thank you.

<THE WITNESS WITHDREW [10.35 PM]

PN110

Ms Dobson, that completes the evidence you seek to rely upon in regard to this matter?

PN111

MS DOBSON: Yes.

PN112

THE COMMISSIONER: Thank you very much. Mr Cooney.

PN113

MR COONEY: Thank you Commissioner. We'd seek to call Mr Rowe and then Mr Packer and then Mr Joud, if that - I'd ask if Mr Rowe.

PN114

THE COMMISSIONER: Thank you very much.

PN115

MR COONEY: Yes.

*** WILLIAM ANTHONY JOHN ROLFE XXN MR COONEY

PN116

THE ASSOCIATE: Please state your full name and address.

PN117

MR ROWE: John Rowe (address supplied).

<JOHN ROWE, SWORN [10.36 AM]

EXAMINATION-IN-CHIEF BY MR COONEY [10.36 AM]

PN118

THE COMMISSIONER: Thank you very much Mr Rowe?‑‑‑Thank you.

PN119

MR COONEY: Mr Rowe, if I could ask you just to state for the Commission your name and address please?‑‑‑John Rowe (address supplied).

PN120

Do you have with you a witness statement - and unsigned witness statement dated 4 April 2019?‑‑‑Yes, I do.

PN121

Are there any corrections or alterations you've used to make that statement?‑‑‑No.

PN122

If I could take you to clause 6 of that statement you say "I've been involved in all enterprise agreements atoll, by local agreements and national heads of agreement". Could you just give the Commission a brief description of your involvement in the negotiation of those agreements?‑‑‑I've been a 30 year employee involved with the national agreements through the TWU. And part of my role is as a delegate. I've been involved with the majority of the local trades done with Toll.

PN123

If I could take you to clause 13 of your statement. You talk there about the so-called peak periods. Has any material been provided to you from management which would give you some information about the peak periods in the ebb and flow of the business?‑‑‑No.

PN124

I'll take you to clause 19 of your statement and you talk there about the current system of RDOs operating over a number of years. In what sense do you say that?‑‑‑So my position, as a full time employee, it's been to the best of my knowledge, it's been running over 17 years and see that it has the fairest system.

PN125

All right. Thank you that's all Commissioner.

PN126

THE COMMISSIONER: Thank you very much Mr Cooney. I take it you want that statement marked as an exhibit.

*** JOHN ROWE XN MR COONEY

PN127

MR COONEY: Sorry, yes.

PN128

THE COMMISSIONER: I'll mark this statement of Mr John Rowe, 29 paragraphs dated 4 April 2019. I'll mark that TWU1.

EXHIBIT #TWU1 STATEMENT OF MR JOHN ROWE DATED 04/04/2019

PN129

Ms Dobson.

CROSS-EXAMINATION BY MS DOBSON [10.40 AM]

PN130

MS DOBSON: Thank you. Mr Rowe, I take you to item 8 of your statement. My apologies, sorry item 9 and your statement, where you say that the fleet on public holidays runs at fifty per cent capacity. The site only operates on public holidays when there are non-aligned public holidays with New South Wales. Isn't that right?‑‑‑The majority of the time, yes.

PN131

Right.

PN132

THE COMMISSIONER: Sorry, what was that? When they're not aligned with New South Wales.

PN133

MR COONEY: When they're not aligned with New South Wales.

PN134

THE COMMISSIONER: Thank you. So they're Victorian days only?

PN135

MS DOBSON: That's right, yes. And when that occurs that is because the linehaul freight from New South Wales is processed using a shift AM dock hands to process that freight isn't that right?‑‑‑Correct.

PN136

The fleet itself is not running at 50 per cent on those public holidays?‑‑‑There are drivers there present doing deliveries.

PN137

And they would mostly be linehaul drivers, though?‑‑‑No, no, as in the company fleet.

*** JOHN ROWE XXN MS DOBSON

PN138

Right and you say at paragraph 19 of your statement that the RDO roster operates so that everyone gets their fair share of Mondays and Fridays. Is that correct?‑‑‑It's the fairest system to my knowledge, yes.

PN139

And is it fair to say that the RDO roster is fair because should an RDO fall on a Monday or Friday around a public holiday, that give somebody a four day weekend or a five day weekend as opposed to say a three day weekend, in those cases?‑‑‑Yes.

PN140

I have a document for you to give you, Mr Rowe. This is the same document previously marked Commission, as TT2, I believe.

PN141

THE COMMISSIONER: Thank you.

PN142

MS DOBSON: This is a graph showing unplanned absence at the Melbourne airport site. Can you tell us what the orange line on that graph represents please?‑‑‑Average per day.

PN143

Right, and where is the line sitting, at just above 15?‑‑‑Yes. Sorry, yes.

PN144

At item 22 of your statement where you say that there is not between 15 and 20 people absent each day, that would be incorrect?‑‑‑Are we talking about sick leave or RDOs?

PN145

Well, that's just the graph showing sick leave, so unplanned leave. That's not including RDOs or annual leave. So, you were incorrect in your statement when you said you weren't aware - sorry, that there weren't 15 to 20 people absent?‑‑‑Are we talking about RDOs - I'm sorry, I'm having trouble understanding. What are we talking about; RDOs or sick days?

PN146

You say in your statement that you don't believe that normal absenteeism is 15 to 20 people?‑‑‑So are these RDO and sick days together, or are these - - -

PN147

That graph just shows unplanned absence. So, of course if there's more than that, that would be more than 15 to 20 people, wouldn't it?‑‑‑Then you'd need to talk about the specifics about why they're not there. So, that could be WorkCover; that could be annual leave. Is it - yes.

*** JOHN ROWE XXN MS DOBSON

PN148

Are you aware of what the word unplanned, means, Mr Rowe?‑‑‑Just - so, are we talking about sick days, is that what you're saying? People that ring up on the day and aren't present?

PN149

That's right?‑‑‑So it does involve annual leave.

PN150

That's right?‑‑‑Nothing else?

PN151

No. But you've said in your statement that you don't agree that 15 to 20 people at all are away each day. That would be incorrect then?‑‑‑Possibly, yes. Going by this graph, yes.

PN152

There's nothing in the local agreement or any other agreement that covers this site, is there, that restricts the rostering of RDOs or in any way provides any information about the rostering of RDOs, is there?‑‑‑No.

PN153

No. Is it common that you would receive hard data or commercially sensitive data in your role as a delegate from the business?‑‑‑No. So are you talking verbally or on paper or - - -

PN154

You've said you've received no data?‑‑‑No data. No.

PN155

So I was asking if it was - - -?‑‑‑That I'm aware of, no. About this issue, no.

PN156

It's not common for you to receive hard data or commercially sensitive information. You've just answered no?‑‑‑Yes.

PN157

Thank you. And taking you to item 16 of your statement you have said that there has been previously a change to the RDO system on this site, yes?‑‑‑Sorry, what was the question again?

PN158

Has there previously been a change to the RDO system on this site?‑‑‑As in - what are you trying to infer that the roster has changed, or.

PN159

Yes, that was a simple question?‑‑‑To my knowledge, no. The roster has been run in basically the same way for the last - yes.

PN160

But there has been a change before, to your knowledge?‑‑‑A change?

*** JOHN ROWE XXN MS DOBSON

PN161

To the roster?‑‑‑As in the way it's running or in the way that it's implemented, or - - -

PN162

Mr Rowe, I'm talking about your statement here. It says previously where there's been a change to the RDO system. I'm just asking you to confirm that once upon a time, in a prior time, there has been a change to the RDO roster?‑‑‑ Sorry, my apologies, yes. So, 17 years ago, yes. It wasn't running the same way, correct. Sorry, my apologies.

PN163

That's all right. Thank you.

PN164

THE COMMISSIONER: Thank you, Ms Dobson. Mr Cooney, anything arising?

PN165

MR COONEY: Yes, Commissioner.

RE-EXAMINATION BY MR COONEY [10.46 AM]

PN166

If I could take you to TT2, the exhibit?‑‑‑Sorry, what's that?

PN167

TT2, which is that document there, the paragraph. It outlines a number of days there. 29 March, 3 April, 26 April. So, presumable dates around Easter, then around Anzac Day. Then Queen's birthday and Christmas Day for 2018, and the week leading into Christmas 2018?‑‑‑Yes.

PN168

One of those dates is 24 December 2018. To the best of your recollection have you ever been provided with any evidence about the peak times or peak requirements for Toll on that particular day being Christmas Eve?‑‑‑No.

PN169

If not then what has been your experience of business on?‑‑‑Leading up to Christmas, say the last couple of days before the 25th, it's actually very quiet.

PN170

And Christmas Eve itself?‑‑‑Extremely quiet.

PN171

Thank you. Nothing further, Commissioner.

PN172

THE COMMISSIONER: Thank you, and thank you very much Mr Rowe for your involvement in these proceedings. You may now stand down.

*** JOHN ROWE RXN MR COONEY

PN173

THE WITNESS: Thank you.

<THE WITNESS WITHDREW [10.48 AM]

PN174

THE COMMISSIONER: You're obviously free to remain in the hearing room now if you wish.

PN175

Next, we have Mr Packer is it?

PN176

MR COONEY: Yes Commissioner.

PN177

THE COMMISSIONER: Thank you.

PN178

THE ASSOCIATE: Please state your full name and address.

PN179

MR PACKER: Brett David Packer, (address supplied).

<BRETT DAVID PACKER, SWORN [10.49 AM]

EXAMINATION-IN-CHIEF BY MR COONEY [10.49 AM]

PN180

THE COMMISSIONER: Thank you very much Mr Packer?‑‑‑Thank you.

PN181

MR COONEY: Mr Packer, could I ask, you to state your name and address for the Commission please?‑‑‑Sure. Brett David Packer (address supplied).

PN182

And you have with you an unsigned copy of your statement dated 4 April 2019?‑‑‑Yes, I do.

PN183

Are there any corrections or alterations you wish to make to that?‑‑‑No. I've read that this morning, thank you.

PN184

I tender that, Commissioner.

PN185

THE COMMISSIONER: Thank you. I'll mark the statement of Mr Brett Packer, 13 paragraphs dated 4 April 2019. I'll mark that TWU2.

*** BRETT DAVID PACKER XN MR COONEY

EXHIBIT #TWU2 STATEMENT OF MR BRETT PACKER DATED 04/04/2019

PN186

MR COONEY: Thank you, Commissioner. If I could take you to clause 60 of your statement. You say there that you don't agree with the term blackout days, and you think they are better referred to as step days? Could you describe to the Commission why?‑‑‑Yes, thank you. So, the term blackout is not mentioned in any of our documents. But the day that we have in between our roster number 20 and roster no one is there to push out the roster, one day. And also, we only get so many hours per month to build up an RDO and as we take one RDO in that month we're not accruing that time. Therefore, we do need that actual one day to build time up again so that the roster does work.

PN187

Could I take you to clause 10 of your statement which refers to the attachment BP1? Could I ask you where you obtained BP1 from? So that's it, that's the - - -?‑‑‑Yes, so this is a copy of the roster that was posted on the roster board which is at the ticket office at Toll IPEC in Tullamarine or Melbourne Airport. This is - it was once this roster was posted that we had a few discussions with the company.

PN188

Right. Nothing further Commissioner.

PN189

THE COMMISSIONER: Thank you very much. Ms Dobson.

CROSS-EXAMINATION BY MS DOBSON [10.52 AM]

PN190

MS DOBSON: Mr Packer, I take you to item 8 of your statement. You define step days in your statement as a day on which no group is allocated and RDO. Is that right?‑‑‑Yes, that is correct.

PN191

THE COMMISSIONER: Mr Cooney, anything arising?

PN192

MR COONEY: No, nothing further, Commissioner.

PN193

THE COMMISSIONER: No. Thank you. Mr Packer, thank you very much for your involvement in these proceedings. You now stand in. You're free to remain in the hearing room now, if you wish.

<THE WITNESS WITHDREW [10.52 AM]

PN194

THE ASSOCIATE: Please state your full name and address.

*** BRETT DAVID PACKER XXN MS DOBSON

PN195

MR JOUD: Mouhammed Joud (address supplied).

<MOUHAMMED JOUD, AFFIRMED [10.53 AM]

EXAMINATION-IN-CHIEF BY MR COONEY [10.53 AM]

PN196

THE COMMISSIONER: Thank you very much, Mr Joud.

PN197

MR COONEY: Mr Joud you have with you a copy of your unsigned statement dated 4 April 2019?‑‑‑Yes.

PN198

I'm sorry can I just ask you to state for the Commission your name and address?‑‑‑It's Mouhammed Joud (address supplied).

PN199

And are there any amendments or changes you'd like to make to that statement?‑‑‑Not that I'm aware of, no.

PN200

Commissioner, we tender that.

PN201

THE COMMISSIONER: Thank you. I'll mark the statement of Mouhammed Joud, nine paragraphs, dated 4 April 2019, TWU3.

EXHIBIT #TWU3 STATEMENT OF MOUHAMMED JOUD DATED 04/04/2019

PN202

MR COONEY: If I could take you to clause 8 of your statement. You talk there about information which was previously provided to you from management about the operation of the business?‑‑‑Yes.

PN203

Is that still the situation today, or?‑‑‑As in the diapo?

PN204

Yes, and that type of information?‑‑‑Well, when we first moved there, every day we'd get a report on the diapo and then probably about 20 months ago, that just stopped for some reason.

PN205

All right, nothing further, Commissioner.

PN206

THE COMMISSIONER: Thank you very much. Ms Dobson.

*** MOUHAMMED JOUD XN MR COONEY

CROSS-EXAMINATION BY MS DOBSON [10.55 AM]

PN207

MS DOBSON: Mr Joud, just because you don't know the diapo metric doesn't mean it's not used by the business, is it?‑‑‑No, it doesn't mean that.

PN208

Thank you.

PN209

THE COMMISSIONER: Mr Cooney, anything arising?

PN210

MR COONEY: No, Commissioner.

PN211

THE COMMISSIONER: Mr Joud, thank you very much for your involvement in these proceedings. You may now stand down?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.55 AM]

PN212

Mr Cooney, that completes the witness evidence you seek to rely upon?

PN213

MR COONEY: It does, Commissioner.

PN214

THE COMMISSIONER: Thank you very much. Now is obviously the time for any closing submissions. We've obviously got plenty of time. Do either of you want a brief adjournment before you provide closing submissions, or are you happy to proceed?

PN215

MS DOBSON: I'm happy to proceed.

PN216

MR COONEY: Commissioner, I've got about five or six hours. So, if I could have a 10 minute break, to - - -

PN217

THE COMMISSIONER: Five or six hours?

PN218

MR COONEY: Closing submissions.

PN219

*** MOUHAMMED JOUD XN MR COONEY

*** MOUHAMMED JOUD XXN MS DOBSON

THE COMMISSIONER: I'm happy to allow - we'll resume again at five minutes past 11:00. The matters is now - - -

PN220

MR COONEY: Just one minute, Commissioner, we use the conference room of remain in here - just for logistics?

PN221

THE COMMISSIONER: You can do whatever you like Mr Cooney, during the next 10 minutes. And, if you do go for five or six hours in terms of closing submissions, we do have some procedural issues, given matters I have listed this afternoon, but we'll deal with those as they arise.

SHORT ADJOURNMENT [10.56 AM]

RESUMED [11.18 AM]

PN222

THE COMMISSIONER: Thank you. Ms Dobson.

PN223

MS DOBSON: Thank you, Commissioner. Commissioner, as you are aware, the dispute in this matter can be summarised very briefly in our position. Toll wishes to make minor changes to its roster structure for employees to take a rostered day off each month. Toll's proposal is to include days on which an RDO cannot be taken, namely either side of a public holiday, a day in the week immediately to, or prior to or subsequent to Easter, and the two working weeks prior to Christmas Day.

PN224

The respondent does not want this change to occur because, as it says it disagrees that it is a necessary change or as Mr Rowe provided in evidence today, they consider this unfair because a small percentage of employees who ordinarily would be able to take a four or five day block around public holidays, might not necessarily get to do so.

PN225

In Toll's proposal there is no reduction in entitlement to RDOs. If anything, the new structure is more fair because everybody gets their full entitlements in each year, whereas, at the moment some do not. You've heard evidence today from Mr Rolfe that the intention is to comply with all other current practices in relation to the use of what the union calls step days and the fair allocation of cross RDOs across different days of the week.

PN226

We say that that overcomes the respondents raised objection in relation to fairness and therefore the only - - -

PN227

THE COMMISSIONER: Sorry, what overcomes the objections in regard to fairness?

PN228

MS DOBSON: In that the step days, as Mr Rolfe indicated earlier, will still be included in the proposal or in the 2019 roster and thereafter.

PN229

THE COMMISSIONER: Do you accept that there is some unfairness in that employees will not now be able to take blocks of days in the way that they once - that they might previously have been able to?

PN230

MS DOBSON: We you say that there is still a fairness element if you include the step days in the roster that allow for different days of the week and we still say that there is fairness because there is still a practice that those days can be cashed in. And of course, there are other elements around annual leave or personal leave and those sorts of things that are still relevant in relation to the taking of leave. It is just simply around the actual RDO itself. We're saying it's restricted in that way.

PN231

THE COMMISSIONER: In any case, where do any concepts of fairness or unfairness come in? Do they - are they only relevant in the context of perhaps some of the overriding objectives that are contained in the relevant agreements? You obviously rely upon objectives in regards to productivity enhancement and whatever.

PN232

MS DOBSON: Yes.

PN233

THE COMMISSIONER: I'm just looking at the - well, yes. Well, one of the objects of the agreement is enhancing the safety and fairness of Toll's operations. I presume that's fairness in regard to the business and the employees. I guess, would you acknowledge that fairness does have some relevance from an employee point of view? I understand the submissions that you make about fairness anyway, but.

PN234

MS DOBSON: Yes. But we would say that it is an objection of the enterprise agreement. But so is the objectives that we've listed in our written submissions which are objectives in relation to productivity, efficiency profitability and those sorts of measures.

PN235

THE COMMISSIONER: Yes.

PN236

MS DOBSON: We would say that Toll's proposal here balances both of those objectives. It provides still for fairness and safe working conditions in the protection of those conditions, but it also includes an element that better and more appropriately balances the productivity efficiency and other objectives in the agreement. Or as we say that the union's position which is the position of status quo, essentially means that their idea of fairness trumps other objectives in the agreement. Whereas what we're trying to do is balance all of those objectives Commissioner.

PN237

THE COMMISSIONER: Thank you. I understand this submission.

PN238

MS DOBSON: We would also say that the justification for this change, as I've mentioned in relation to the objectives of productivity and efficiency, have been well evidenced by Mr Rolfe who is the general manager of this business unit and the person directly responsible for the management sustainability of this business.

PN239

We would say that Mr Rolfe's evidence should be preferred over the evidence provided by the witnesses in this matter. No doubt they are senior members of the team and have been long term employees. But, as was provided today they are not involved in the commercial decision-making or across all of the commercial metrics that are relevant to the running of this site. Whereas, Mr Rolfe is directly responsible and accountable for dealing with some of those productivity measures as we discussed.

PN240

THE COMMISSIONER: Yes, I think just as a general proposition and Mr Cooney may wish to make submissions about this to the contrary, but I think my starting point in regard to the claims that are made about productivity improvement, I don't see it as my role or the Commission's roles to necessarily be second guessing decisions that are made by the business about productivity and efficiency.

PN241

They may well be well-founded. Some may be of the view they're misguided. But if I'm content that they are legitimately made for that reason, I don't believe that the Commission or myself has a role to necessarily be questioning the rationale behind that decision-making process.

PN242

MS DOBSON: Yes. Thank you, Commissioner. We would say that an extension of that then, is that this is a case in which Toll is seeking to exercise its managerial prerogative in relation to making those decisions and implementing those matters that it needs to, in relation to giving effect to those objectives. I note that it's well established in the XPT case which I think we both referred to in our written submissions, in which it was held:

PN243

The Commission should not interfere with the right of an employer to manage his own business unless he is seeking from the employee something which is unjust or unreasonable.

PN244

And we say that nothing in Toll's proposal is so unjust or so unreasonable to reach a threshold whereby the Commission would interfere with the reasonable managerial prerogative that Toll is seeking to assert in the circumstances.

PN245

we also again note that another reason for this is that this is not a new concept that Toll is seeking to introduce. whilst I do note that of course these are additional days that are currently involved in the roster, it's not the case that the Commissioner's asserted that we're comparing apples and oranges here and this is a case where we are just seeking to increase the number of days in a concept that is already in a roster structure.

PN246

THE COMMISSIONER: I've already had this interchange with Mr Rolfe and you obviously are aware of that. But I accept what you say in terms of those submissions but these days these new proposed days are being introduced for a different purpose than the days that existed in 2018. You would acknowledge that?

PN247

MS DOBSON: Yes, we acknowledge that. And again, that would be giving effect to both of those objectives that I referred to before, which is both the fairness but also of course, the commercial requirements of the site which we would say has been well established by Mr Rolfe and challenged.

PN248

Just in dealing with the point raised by the union in its written submissions and my final point in this matter Commissioner, the union has asserted that the RDO structure without additional blackout days is an implied, and thus unalterable term, in the employment contracts, due to its prevailing custom and practice on the site. Toll would submit that there is no common law or statutory basis on which the concept of those blackout days is an implied contractual term.

PN249

We refer to the case of BP Refinery (Westernport) Pty Ltd v The Shire of Hastings which was accepted by the well-known case of Commonwealth Bank of Australia v Barker by the High Court. That held what were the specific requirements for an implied term to be inserted into an employment contract. There are a number of factors, but central amongst those were that:

PN250

The implied term must be reasonable and equitable. It must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it, and it's so obvious that it goes without saying

PN251

It tells me that none of these factors in this case apply when we're just talking about adding additional blackout days to the RDO structure.

PN252

We say that implying the term here or allowing for this term to be implied into the contract is not reasonable and equitable to Toll's required commercial practices as an employer. We also say that it is not necessary to give effect to the employment contract. The employment contracts of its employees are effective without the invitation of this implied term. The implied term also does not give effect to the express terms of the employment contract and current practices are not so obvious that they go without saying.

PN253

There is a requirement in the local agreement that the roster is published each year as both Mr Rowe and Mr Rolfe provided evidence. There's nothing in the local agreements that provide any guidance or restriction on the details that can be put in that roster structure. Therefore, we say that presumably, it is changeable each year. It's certain and changeable in terms of the step days that are allocated. We say that this means it's not so obvious that it goes without saying enough to be an implied term of the contract.

PN254

The union has referred to the case of Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd in relation to custom and practice becoming an implied term.

PN255

We say that in the circumstances that case does not have direct application here. In that case, the High Court held that:

PN256

The custom and practice must be so well known and agreed upon that all parties to the agreement would have agreed to its imputation.

PN257

We say that that is not the case here. Toll has not and does not agree to the imputation of that clause.

PN258

The custom and generic usage is so well known or acquiesced that (and I quote from that case) everyone making a contract in that situation can reasonably be presumed to have imparted that term into the contract.

PN259

In applying that principle, the high court said that:

PN260

The custom must be so notorious that everyone in the trade enters into a contract with that usage as an implied term.

PN261

And in that case the threshold applied was whether the customary practice was so notorious to everybody in the insurance industry that a particular term was implied. Here we say that not only is any RDO structure without the proposed blackout days not so notorious across the transport industry, we say it's not even notorious across Toll. As Mr Rolfe gave evidence today, it's not even a common practice across Toll or across its other sites.

PN262

Whilst we say there might be an argument that the RDO itself and the taking of the RDO itself might be an implied term, again we come back to that this matter is about just the inclusion of additional blackout days and not anything that affects the employees' entitlements in relation to RDOs.

PN263

We further submit as we have in our written submissions Commissioner, that we also say that any restriction placed on the applicant in relation to this matter is against the express terms of both the enterprise agreement but also the underpinning award which is the Road Transport and Distribution Award 2010. What we say those provisions provide is that the commercial imperatives can rightly trump the scheduling of RDOs and that is what we're seeking here.

PN264

THE COMMISSIONER: Just so I understand the submissions in that regard, and I think if I recall, you said that in your written submission that the industrial the various industrial instruments do not restrict RDO rostering and ultimately allow - I think you might have even said unilateral change. Is that subject only in your submission to the broad objectives around fairness towards employees that we've already made reference to? And ultimately, your position is that if there's no agreement that's able to be reached the business can make changes unilaterally in regards to RDO arrangements, subject to those fairness considerations being satisfied.

PN265

MS DOBSON: Yes, we would say that but we're also saying that this proposal does balance those challenges.

PN266

THE COMMISSIONER: I understand what you say about fairness.

PN267

MS DOBSON: Yes, it's more that the point I raise in relation to the award is more that part of the industrial framework for this site is that there can be unilateral changing of RDOs. It's not a completely alien concept to this side or to the underpinning industrial instruments.

PN268

THE COMMISSIONER: Right, yes, thank you.

PN269

MS DOBSON: That really brings to an end my submissions in relation to this matter, Commissioner. Again, just to summarise, the applicant would say that any restriction on its ability to make a commercial decision and exercise its managerial prerogative in this matter would be in our view, unreasonable and set an unreasonable precedent, meaning that the business could never change or evolve as it needs to.

PN270

Again, we think we've balanced the needs of fairness and other objectives in the agreement in implementing this proposal. But it's a proposal that is required in order to keep the business functioning as it needs to commercially. Thank you.

PN271

THE COMMISSIONER: Thank you very much, Ms Dobson.

PN272

Mr Cooney.

PN273

MR COONEY: Thanks Commissioner. What we say in essence is that the RDO calendar posted at the beginning of each year has in fact become a custom and practice to the extent it's become an implied term of the contract of the employees. It's been a practice that's been going on for 16 or 17 years. It's a practice which is essentially over a multi-year period as evidence was given by Mr Rowe that you have a - you may have 11 RDOs in one year but it's counter-balanced by having 13 RDOs in the following year.

PN274

We say that it's certainly notorious within the business itself if not across the various other parts of Toll Group. But that's the important thing, that the employees and the managers have had an expectation around how this calendar is going to operate. Mr Rolfe was well aware of that in seeking to alter the system.

PN275

We would also say though that there is no prevention of the RDOs being altered. It's just that it must be by agreement. So that - and we've touched on the XPT case. While the managerial prerogative exists, it's not a unilateral prerogative and that it's got to be exercised according to fairness and legal constraints. And in this particular situation the legal constraint is to become applied term of the contract.

PN276

THE COMMISSIONER: What about the provisions in the award which, without looking them up, I think allow - well, seek to vary RDO ranges by agreement. But ultimately, if no agreement can be reached, simply by 48 hours' notice being given.

PN277

MR COONEY: Commissioner, what we say about that is, that's in regard to RDOs which have already been programmed and so, if for instance, Toll's aware that it's going to be a particularly busy day, four days hence, they can then make the arrangements to vary the award. What we'd also say about that is that it gives a deal of flexibility to Toll to vary RDOs to the level they may require. There are other ways that they can do that.

PN278

The local agreement I think, provides start times or spread of the hours from 5am to 7pm. So, there's an ability for Toll to vary to start times of employees if they envisage that there's going to be a particularly heavy workload. And again, you can vary RDOs through alternate days or paying out an RDO and have the employee work it.

PN279

I think as your Honour's pointed out, there's a question of fairness here in that, under the proposed system you'll have employees having two RDOs a week apart. You'll have employees who will go without RDOs for a month just so the calendar can be, or the proposed calendar can be facilitated.

PN280

What we also say about that is that there's been - while there's been consultation, we think there's been a lack of evidence provided to employees to be able to undertake meaningful consultation. Mr Rolfe certainly gave evidence that he hadn't provided the information - the hard information to employees. For instance, TT2. That was the first time that the three gentlemen in the room today had seen that particular chart. Again, Mr Rowe gave evidence that for instance - and which was unchallenged, and on the 24 December, there is in fact not a great deal of freight that needs to be moved.

PN281

Yet that particular day along New Year's Eve, is being presented as a day where there is either 25 or over employees, who have unplanned absences. In our submission, while that might be the case and we haven't seen the raw data on that, they are in fact, quiet days, the 24th and the 31st.

PN282

What we'd also say is that again, there's not a hard and fast position from the union that we're not going to change the days at all, or deal with what are purportedly high volume days. It's a matter of how management seek to do that. The evidence from the witnesses is that there are mechanisms for providing for that, if they're given sufficient evidence that there is a reason to do that.

PN283

Commissioner, finally what we would like to say is that the system of RDOs is one that's cemented by the agreement. I think in particular in regard to custom and practice. I take a Commission to clause 85 of the heads of agreement and at 85(c) there are references that custom and practice where the parties have unintentionally failed to reflect the custom practice in a local agreement.

PN284

What we say about that is that when these agreements have been negotiated, within the negotiators' minds; within the parties' minds is that custom and practices do exist. And that while the local agreements - during the negotiation of local agreements, it's intended to capture those custom and practices, the heads of agreement makes provision for the fact where a custom and practice isn't captured in the local agreement, that it will continue on.

PN285

Now again, just because it's a custom and practice and exists, it doesn't mean it can't be varied. But it's the manner in which you go around varying that. As we've said there's provisions in both the award and the heads of agreement to vary RDOs to vary start times, but that Toll haven't yet sought to utilise those in any sort of meaningful discussion with employees. So, I think the union will finish on that. Thank you, Commissioner. Unless there's any further questions.

PN286

THE COMMISSIONER: Just on the fairness question, Mr Cooney. You've heard the submissions that have been made about the fact that these changes, whilst they're designed to improve productivity, cost saving measures, that they also provided an additional degree of fairness for the employees in that they will be more equitably receiving the same number of RDOs in each calendar year. What do you say about the fairness benefits for employees that the business attributed to these changes?

PN287

MR COONEY: Commissioner, in that respect I think it was the unchallenged evidence of Mr Packer in explaining the differences between what a step day is and the introduction of blackout days, that the employees themselves regard it not as a single year system, but as a multi-year system. And in that respect, there's swings and roundabouts. So there's an acceptance of fairness that each employee will get a certain number of Monday Tuesday Wednesday Thursday Fridays in each calendar year.

PN288

And if you have a lesser number of Fridays. Well, that's been ameliorated with the following year when you'll get more Fridays and another employee will get less. I think that feeds into the fact that this has become a custom and practice that we're looking over a period of time which crosses calendar years, crosses the negotiation implementation of successive agreements.

PN289

That's the fairness is one that the employees have come to see and accept. The evidence of Mr Rowe was that he was involved in some 16, 17 years ago, the negotiation of this system after a number of other systems - well, that the system that was then in place wasn't satisfactory for the parties or at least wasn't seen as fair by the employees.

PN290

We see that the current system is a fair one. But we also believe that it provides the business efficacy where or if Toll would seek to exercise that.

PN291

THE COMMISSIONER: Thank you, Mr Cooney. Ms Dobson, anything finally?

PN292

MS DOBSON: Just to respond to a couple of points made by Mr Cooney. In terms of the exercise of fairness, the heads of agreement document or the relevant enterprise agreement doesn't just require that this is an obligation on Toll. It is a joint obligation on both Toll, the union and the employees. We say that - you know, in response to Mr Cooney's statement that there is potentially some flexibility in terms of agreement or the union or the employees working with Toll, we would disagree with that which of course has led to the dispute today.

PN293

But he says that that flexibility can be provided around busy days. Well, that is again the crux of this matter. Mr Rolfe is saying these are the busy days. Mr Rowe's evidence around Christmas Eve is challenged directly by Mr Rolfe on that point. And we would say too, that in trying to schedule these busy days out, if we are giving effect to the award that allows for, as Mr Cooney has just said, the ability to change - unilaterally change in particular incidents where it is busy. We're saying that this process is even more fair because then it's not just going to be a matter of an employee expecting they've got an RDO scheduled, but we say no, it's a busy day and therefore it is cancelled.

PN294

We're trying to look at that over a 12 month period and still put those fairness measures in, without necessarily unilaterally taking those away ad hoc as they arrive. We would say that that is even more fair than the example that Mr Cooney has raised. And just finally, we say that consultation here is not in dispute and that certainly, we would say hasn't been raised to date in terms of being an issue. But what we would say is that the union's position here is that they're seeking to essentially have joint decisions about all of these matters. It's quite well established of course that the requirement to consult does not extend to joint decision making. It also doesn't extend to a right of veto from the Union or its employees as well. And we would say that again that is commercially unsustainable, but also not in line with the position on consultation. Thank you.

PN295

THE COMMISSIONER: Thank you very much. All right thank you very much for the submissions and evidence you provided in regard to this matter. I do intend to take some time to consider those submissions and that evidence. I do intend to reserve my decision at this point. I will endeavour to hand down a decision as soon as possible, given the length of time this man has been around. But until that time thanks again the matter is adjourned. Good morning.

ADJOURNED INDEFINITELY [11.47 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

WILLIAM ANTHONY JOHN ROLFE, SWORN.............................................. PN20

EXAMINATION-IN-CHIEF BY MS DOBSON.................................................. PN20

EXHIBIT #TT1 STATEMENT OF WILIAM ROLFE DATED 14/03/2019... PN28

EXHIBIT #TT2 UNPLANNED ABSENT DAYS ADJACENT TO PUBLIC HOLIDAYS DOCUMENT........................................................................................................... PN46

EXHIBIT #TT3 PROPOSED DATES FOR 2019............................................... PN46

CROSS-EXAMINATION BY MR COONEY..................................................... PN50

THE WITNESS WITHDREW............................................................................ PN109

JOHN ROWE, SWORN....................................................................................... PN117

EXAMINATION-IN-CHIEF BY MR COONEY.............................................. PN117

EXHIBIT #TWU1 STATEMENT OF MR JOHN ROWE DATED 04/04/2019 PN128

CROSS-EXAMINATION BY MS DOBSON..................................................... PN129

RE-EXAMINATION BY MR COONEY........................................................... PN165

THE WITNESS WITHDREW............................................................................ PN173

BRETT DAVID PACKER, SWORN................................................................. PN179

EXAMINATION-IN-CHIEF BY MR COONEY.............................................. PN179

EXHIBIT #TWU2 STATEMENT OF MR BRETT PACKER DATED 04/04/2019 PN185

CROSS-EXAMINATION BY MS DOBSON..................................................... PN189

THE WITNESS WITHDREW............................................................................ PN193

MOUHAMMED JOUD, AFFIRMED................................................................ PN195

EXAMINATION-IN-CHIEF BY MR COONEY.............................................. PN195

EXHIBIT #TWU3 STATEMENT OF MOUHAMMED JOUD DATED 04/04/2019 PN201

CROSS-EXAMINATION BY MS DOBSON..................................................... PN206

THE WITNESS WITHDREW............................................................................ PN211

Fair Work Commission Transcripts

C2019/557, Transcript of Proceedings [2019] FWCTrans 101 (26 April 2019)