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Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1057196
DEPUTY PRESIDENT SAMS
C2019/3084
s.739 - Application to deal with a dispute
United Voice
and
Pambula Merimbula Golf Club Limited
(C2019/3084)
Pambula Merimbula Golf Club Limited Enterprise Agreement 2014-2018
Sydney
10.00 AM, TUESDAY, 6 AUGUST 2019
PN1
THE DEPUTY PRESIDENT: Could I have the appearances.
PN2
MR C ACEV: If the Commission pleases, Acev, initial C, (indistinct) United Voice appearing for the applicant.
PN3
MS L PIKE: Your Honour, Pike, initial L, from Clubs New South Wales representing Pambula Merimbula Golf Club.
PN4
THE DEPUTY PRESIDENT: Thank you. Are we ready to proceed with the hearing?
PN5
MR ACEV: There is a housekeeping matter, your Honour. I did receive an email late yesterday afternoon which perhaps may needs to be addressed before we proceed.
PN6
THE DEPUTY PRESIDENT: Yes.
PN7
MR ACEV: It's not my email by the way, it was received from Ms Pike.
PN8
THE DEPUTY PRESIDENT: It says in respect to a reply statement of Kyle Shook.
PN9
MR ACEV: That's correct.
PN10
THE DEPUTY PRESIDENT: What's your point?
PN11
MR ACEV: I suppose I would like to formally tender the objection in relation to filing and receipt given it is outside the directions issued by the Commission. Indeed no prior notice was ever given of the intent to do so or discussion about the introduction of a reply statement.
PN12
THE DEPUTY PRESIDENT: All right.
PN13
MS PIKE: Your Honour, in viewing the material in response that was provided by the applicant it came to our attention that there was material raised that related to events that occurred following Mr Shook providing his evidence. We thought it was best addressed with a statement in response to clarify these issues. They weren't foreseen when he was preparing his original statement.
PN14
THE DEPUTY PRESIDENT: I am not prepared to accept this statement which is filed outside of the directions, but what I will allow you to do is if the matter arises in some way to ask questions about it in the evidence.
PN15
MS PIKE: Thank you, your Honour.
MR ACEV: Thank you, your Honour. Yes, we're ready to proceed. I would like to call as the first witness Mr Scott Wooden. He is incapacitated, your Honour, so we do apologise if he remains seated.
<SCOTT CAMERON WOODEN, AFFIRMED [10.04 AM]
EXAMINATION-IN-CHIEF BY MR ACEV [10.04 AM]
PN17
MR ACEV: Mr Wooden, if you could just for the record please state your full name and current residential address?‑‑‑Scott Cameron Wooden, (address supplied).
PN18
In relation to these proceedings, Mr Wooden, have you prepared a witness statement in-chief?‑‑‑Yes, I have.
PN19
If I can just confirm with you it is a statement dated 1 July 2019 prepared - across the top here?‑‑‑Yes.
PN20
It is a statement of some 37 points?‑‑‑Yes. Yes, Chris.
PN21
Can I confirm the Commission has that on its file.
PN22
THE DEPUTY PRESIDENT: Yes.
PN23
MR ACEV: I will deal with the second document and I will ask - Mr Wooden, can I also confirm with you that you have prepared a statement in reply dated 30 July?‑‑‑Yes.
PN24
And that is a statement of some 49 points?‑‑‑Yes.
PN25
Can I confirm the Commission has that on its file.
*** SCOTT CAMERON WOODEN XN MR ACEV
PN26
THE DEPUTY PRESIDENT: Yes.
PN27
MR ACEV: Your Honour, I would be seeking to have both of those tendered and marked as exhibits and taken as read if I could.
PN28
THE DEPUTY PRESIDENT: Any objection?
MS PIKE: No, objection.
EXHIBIT #1 STATEMENT OF SCOTT CAMERON WOODEN DATED 01/07/2019
EXHIBIT #2 REPLY STATEMENT OF SCOTT CAMERON WOODEN DATED 30/07/2019
PN30
MR ACEV: Thank you, your Honour, I have nothing further to add.
THE DEPUTY PRESIDENT: Thank you.
CROSS-EXAMINATION BY MS PIKE [10.06 AM]
PN32
MS PIKE: Mr Wooden, do you have a copy of exhibit 1 in front of you?‑‑‑Yes.
PN33
I want to refer to paragraph 29 of that statement. Paragraph 29 contains a list of duties that you say that you perform during a changebook shift at the club?‑‑‑Yes.
PN34
Did you prepare that list of duties that you perform?‑‑‑Yes.
PN35
So, Mr Wooden, that list of duties has six points. Point 1: Decided whether to close the club before posted close or extend the trade beyond posted close and advise patrons. Point 2: Instruct contract bar staff when club would be closing. Point 3: Decide how long the casual bus driver worked or was knocked off early. Point 4: Dealing with customer complaints or issues during shift. Point 5: Responsibility accessing safe keys and activating club security system. Point 6: Receiving and reconciling floats from the contract bar and bistro staff. So in summary you say that you determine the shift closing time; you instruct the contract caterer of the closing time; you determine the bus driver's finishing time; you deal with customer complaints, you reconcile moneys that are received and that you're responsible for activating the club security system. Do you agree with that?‑‑‑Yes. Yes.
*** SCOTT CAMERON WOODEN XXN MS PIKE
PN36
Do you agree that five of those six duties, so deciding whether to close the club before its close time or extending trade, instructing contract bar staff, deciding how long the casual bus driver works, responsibility for accessing safe keys, activating the club security system and receiving and reconciling floats from the contract bar and bistro staff, do you agree that those five duties are performed in the final 60 minutes of your shift?‑‑‑I disagree. Some of those decisions are made during the shift.
PN37
They're not made in the middle of your shift though, are they, they're made at the end of your shift? So you don't decide when to close the club in the middle of your shift, that's at the end of your shift?‑‑‑No, no, Sorry, no.
PN38
Letting the bar staff know when the club would be closing that's at the end of your shift?‑‑‑It's near the end of the shift, yes. Sorry, yes.
PN39
Deciding if the casual bus driver, how long they worked or if they were knocked off early that would happen at the end of the shift?‑‑‑No, because the bus driver could finish up a lot earlier, hours earlier.
PN40
What about accessing the safe keys and activating the club security system, is that at the end of the shift?‑‑‑Not the safe keys, no, I might need the safe keys because I might need to top up the float, so therefore I've got to get into the safe and get more money, more cash out to put into my float.
PN41
But locking the club's premises that happens at the end of the shift?‑‑‑Locking the club's premises happens at the end of the shift.
PN42
And receiving and reconciling the floats from the contract bar and bistro staff that would happen at the end of the shift?‑‑‑Yes. Yes.
PN43
Do you agree that the duty of dealing with customer complaints or issues isn't - is it a common occurrence?‑‑‑It is a common occurrence.
PN44
Do you agree that it doesn't happen every shift?‑‑‑No, it doesn't happen every shift, I do agree.
PN45
Do you agree that the casual bus driver doesn't report to you?‑‑‑No, I disagree.
PN46
Do you believe that you're a manager of the casual bus driver?‑‑‑Yes.
*** SCOTT CAMERON WOODEN XXN MS PIKE
PN47
I refer to paragraph 31 of your statement. You refer to a letter that was provided by United Voice to the club in relation to the duties and responsibilities of your role. Is that correct?‑‑‑Yes.
PN48
Mr Wooden, do you have a copy of Kyle Shook's statement in front of you?‑‑‑
PN49
MR ACEV: The short answer is no, I don't think it has been provided, Your Honour.
PN50
MS PIKE: I can provide a copy. Mr Wooden, I would like you to turn to annexure F of Mr Shook's statement. It's the final two pages of that bundle that you have in front of you?‑‑‑Yes.
PN51
Do you agree that this is the letter that was provided to the club by United Voice and is dated 24 April 2019?‑‑‑Yes.
PN52
Can you see the list of duties that are at the end of the first page going over to the second page?‑‑‑I can see them.
PN53
These are the list of duties that United Voice provided to the club being reflective of the work that you perform. Did you provide this list of duties to United Voice prior to them sending the letter to the club?‑‑‑Yes.
PN54
So do you agree that these are the duties that you perform in a closing shift?‑‑‑Yes.
PN55
Do you recall having a conversation with club management, in particular Kyle Shook and David Logan that related specifically to that list of duties?‑‑‑As in a meeting?
PN56
Yes?‑‑‑Yes, we did have a meeting.
PN57
I want to refer you to paragraph 38 of Mr Shook's statement from page 9 of the statement?‑‑‑Yes.
PN58
This is Mr Shook's recollection of a conversation that involved both yourself and Mr Whitby on 24 May?‑‑‑Yes.
*** SCOTT CAMERON WOODEN XXN MS PIKE
PN59
In particular this conversation addressed those dot points that were raised in correspondence provided by United Voice on 24 April. Have you read through this paragraph before?‑‑‑I have. I'll have to read through it again. Is that okay?
PN60
Yes. Do you agree that Mr Shook's recollection of that conversation is an accurate representation of that conversation?‑‑‑Is it only on number 9, page 9 you want me to read?
PN61
Page 9 and it goes over onto page 10?‑‑‑Sorry, can you repeat the question again then, please.
PN62
Do you agree that Mr Shook's recollection of that conversation is an accurate representation of the conversation that occurred?‑‑‑It's not accurate, so, no.
PN63
So that's not your recollection?‑‑‑I'm sort of having a bit of problem just understanding what you're trying to say.
PN64
Mr Wooden, you said that you were in a conversation?‑‑‑Yes.
PN65
You had a meeting. Mr Boag, Mr Shook, yourself and Mr Whitby were in that particular meeting on 23 May?‑‑‑Yes, yes.
PN66
This is Mr Shook's recollection of some of the content that was discussed during that meeting?‑‑‑Yes.
PN67
My question to you is, is that your recollection or do you believe that's an accurate representation - - -?‑‑‑No, I think that is what we discussed.
PN68
In relation to the list of dot points in point 38, Mr Shook outlined the club's response to each of those duties, so each of those seven dot points reflected the seven dot points in that letter of 24 April and during the conversation on 24 May Mr Shook then went through those list of dot points and provided the club's response to each of those things. In relation to the first one, so assessing trade level and determining the club's close time, i.e. earlier than the posted close time. His response was 'Yes, it's a level 5 task as it's part of closing the clubhouse duty detailed in the enterprise agreement for level 5. However, it shouldn't need to occur outside the last hour of work'. Do you agree that that duty would be performed within the last hour of your employment?‑‑‑Yes, I do.
*** SCOTT CAMERON WOODEN XXN MS PIKE
PN69
Point two, advising the contracted bar staff of such decisions and instructing them to prepare to cease service. Mr Shook responded 'You should not be advising the contracted bar staff of when to close. It should only be communicated to each other'. Do you agree that it's not a duty that you're required to perform and that your responsibility is limited to communicating with catering staff to determine a closing time?‑‑‑I disagree. I do advise bar staff when they should cease trading.
PN70
Do you agree that any such communication with the catering staff would be in the last hour of work?‑‑‑Yes.
PN71
The third dot point, formally announcing the impending close time to patrons, to club patrons. Mr Shook's response was 'Yes, it's a level 5 task as it is part of the closing the clubhouse duty detailed in the enterprise agreement for level 5. However, it shouldn't need to occur outside the last hour of work'?‑‑‑Agree.
PN72
You agree that that duty would be performed within the last hour of your employment?‑‑‑Last hour, yes, yes.
PN73
The fourth point, assessing the demand for patron conveyance, it's the first half of the dot point. Mr Shook's response was 'Yes, it is a level 5 task as it's part of the closing the clubhouse duty detailed in the enterprise agreement for level 5. However, it shouldn't need to occur outside the last hour of work'. Do you agree that this duty would be performed within the last hour of your employment?‑‑‑Yes.
PN74
The second part of that dot point, determining when the casual courtesy bus driver is to end their shift. Mr Shook's response was 'No, you should not determine when the bus driver's shift ends. The bus driver should communicate with staff that they are finishing up when there are no more bus bookings and the bus drivers have asked patrons if they will require a lift'. Do you agree that this isn't a duty that you're required to perform?‑‑‑Disagree.
PN75
Despite that, do you agree that any communication with the bus driver would likely be within the last hour of your employment?‑‑‑No, I disagree.
*** SCOTT CAMERON WOODEN XXN MS PIKE
PN76
The fifth dot point, responsibility for accessing safe keys, personalised access codes and activation of club security system individual access code. Mr Shook's response, 'Level 5 specifically states that the mere movement of cash from the safe is not a level 5 duty so accessing the safe keys to get more cash which could be outside of the last hour of work is not a level 5 duty. Activating club security is level 5 under closing the club duty but only occurs in the last hour of shift'. Do you agree that activating club security is a duty that you would perform within the last hour of your employment?‑‑‑Yes.
PN77
Point six, responsibility for addressing patron complaints. Mr Shook's response was 'Nothing specifically stated in level 3 or level 5 of the enterprise agreement regarding addressing patron complaints. Staff should make a note of the complaint and give it to either David Boag or myself. It's reasonable to assume a level 3 staff can address small complaints when they arise'. Do you agree that it's not a management duty and complaints would be addressed by any staff member on the rare occasion that they do arise?‑‑‑Disagree.
PN78
In your view, that's a management duty?‑‑‑Yes.
PN79
Point seven, responsibility for dealing with un-cooperative or unruly patrons. Mr Shook's response was 'All staff have a duty under their responsible service of alcohol to deal with unruly patrons. This should be documented in the incident book and the police should be rung if any situation escalates. This is not solely a level 5 duty'. Do you agree that it's not a management duty and such issues would be addressed by any staff member on the rare occasion that they do arise?‑‑‑Disagree.
PN80
Do you agree that there's seven duties that we've just gone through, the seven duties that are outlined in the United Voice correspondence, are very much reflected in your statement in this matter?‑‑‑Yes.
PN81
Do you agree that of the seven duties detailed in the United Voice correspondence that the first five duties detailed are performed in the final 60 minutes of a shift?‑‑‑Can you repeat that question, sorry.
PN82
Of the seven duties detailed in the United Voice correspondence, the correspondence of 24 April - - -?‑‑‑So I'm not looking at Kyle's thing no more?
PN83
You can have a look at the correspondence on the back, annexure F if you like, the last two pages?‑‑‑The last two pages, sorry. Okay, so now I'm - - -
PN84
Do you agree that of those seven duties, the first five of those duties are performed in the final 60 minutes of your shift?‑‑‑Disagree.
*** SCOTT CAMERON WOODEN XXN MS PIKE
PN85
Do you agree that of the seven duties listed, those last two duties are not strictly management or supervisor duties and they can be performed if and when they arise by non‑supervisor on shift?‑‑‑Disagree.
PN86
Mr Wooden, do you have your statement in reply in front of you? A copy of your statement in reply?‑‑‑Yes, I do.
PN87
I want to take you to paragraphs 11 and 12 of your witness statement in reply?‑‑‑Yes.
PN88
You talk about being contacted by the club's security service, Primus?‑‑‑Yes.
PN89
Do you agree that this is the only time you've been contacted by Primus since the club's restructure in October 2018?‑‑‑Yes.
PN90
Do you agree that this direction that you provided to Primus was a once off scenario?‑‑‑It has been - like that is a one off scenario but it could arise again.
PN91
On the basis of your comments made today in relation to the duties that you perform, do you agree that your role is best classified as a level 3 role but for the final hour of a closing shift?‑‑‑Disagree.
PN92
Do you agree that you're paid at level 5 rates of pay for the last hour of a closing shift?‑‑‑I get paid level 5 for the last hour, yes.
PN93
I have no further questions, your Honour.
PN94
THE DEPUTY PRESIDENT: Mr Wooden, when you say that on 25 October your hourly rate was arbitrarily reduced by the club from level 5 to level 3, was there any discussion at the time?‑‑‑Not to - not on the pay drop, no. There was no discussion about reducing our pay.
PN95
What, it just happened and you saw it in your payslip?‑‑‑Yes. Yes, your Honour.
PN96
There was no letter?‑‑‑No, your Honour.
PN97
Anything in reply?
PN98
MR ACEV: Just a few points if I may, your Honour.
*** SCOTT CAMERON WOODEN XXN MS PIKE
PN99
THE DEPUTY PRESIDENT: Well, before you do, I just have ‑ when you mentioned to Ms Pike that you are paid the one hour at level 5, is that for every shift?‑‑‑No, it's only for closing shifts.
PN100
I understand that. It's closing shifts but it's not for actual time worked?‑‑‑No, it's just - - -
PN101
It's just the hour?‑‑‑It's just that one hour when we close.
PN102
All right, and it's on every close shift?‑‑‑Just on every close shift, yes.
Right, thank you.
RE-EXAMINATION BY MR ACEV [10.25 AM]
PN104
MR ACEV: Thank you, your Honour. If I may just co‑ordinate something with you, Mr Wooden. Your exhibit 1, your first statement, if I may, at point 29, so point 29 of your statement-in-chief?‑‑‑Point 29, okay.
PN105
Those six bullet points?‑‑‑Yes.
PN106
You also have a copy of Mr Shook's statement, do you not?‑‑‑Yes, I do.
PN107
In particular, if you can go to point 38, or point 38 of Mr Shook's statement?‑‑‑Yes.
PN108
Point 38?‑‑‑Sorry, I'm getting there. Yes, okay, I'm on 38.
PN109
Just to complete the picture, Mr Wooden, Ms Pike asked you whether - sorry, Ms Pike put to you that was Mr Shook's recollection of what happened at the meeting, okay?‑‑‑Yes.
PN110
Can I ask you this, Mr Wooden, and this is going to be ‑ I'll take this very slowly, point 38, bullet point number one of Mr Shook's statement, says 'Assessing the trade level and determining the club's close time, i.e. earlier than the posted close time'. That's the very first bullet point in Mr Shook's statement, correct?‑‑‑Yes.
*** SCOTT CAMERON WOODEN RXN MR ACEV
PN111
If you now go to your statement, point 29, your first statement, point 29?‑‑‑Witness statement of Scott Wooden? Is that one?
PN112
Perhaps if I can - if you can mark one exhibit 1. If I may just approach the witness, just for ease. If you can just put exhibit 1 - sorry, on your statement-in-chief, the one dated 1 July, just put a big EX1 on the top of it so you know which one I'm talking about. Top right hand corner?‑‑‑1 July, EX.
PN113
That's exhibit 1?‑‑‑Yes.
PN114
Your reply statement dated 30 July will be exhibit 2?‑‑‑Exhibit - - -
PN115
Does that help with referencing?‑‑‑Yes, thanks.
PN116
We're talking abut exhibit 1?‑‑‑Yes, okay.
PN117
Exhibit 1, point 29?‑‑‑Point 29.
PN118
You're going to have to have both documents open at the same time, Mr Wooden, sorry but?‑‑‑Yes, okay.
PN119
In your exhibit 1 at point 29, bullet point one, can you confirm that it reads as follows 'Decide whether to close the club before posted close or extend the trading beyond posted close'. To the best of your recollection, Mr Wooden, at the meeting on 24 May, was there a discussion about extending closing times?‑‑‑Just trying to think, sorry.
PN120
That's okay. If you don't recall, say you don't recall. Perhaps I'll ask Mr Shook that. I'm just simply - but do you accept - sorry, Mr Wooden, there's no reference in Mr Shook's statement to discussion about extending close times, correct?‑‑‑That's correct.
PN121
Thank you. If you go over the page Mr Shook's statement, it's on page 10?‑‑‑Yes.
PN122
The second last bullet point?‑‑‑Yes.
PN123
It reads, and if you can just confirm for me that it as I say, 'Responsibility for addressing patron complaints'?‑‑‑Yes.
*** SCOTT CAMERON WOODEN RXN MR ACEV
PN124
Go back to your exhibit 1 statement, Mr Wooden, and your bullet point four, at point 29, bullet point four, correct me if I'm wrong, it says 'Dealing with customer complaints/issues during shift'?‑‑‑Yes.
PN125
Do you agree the word issue doesn't appear in Mr Shook's statement?
PN126
THE DEPUTY PRESIDENT: Well, I think that's self-evident, Mr Acev.
PN127
MR ACEV: I think - thank you, Mr Wooden?‑‑‑Yes, yes.
PN128
The last bullet point in Mr Shook's statement, 'Responsibility for dealing with un-cooperative or unruly patrons'?‑‑‑Okay, yes.
PN129
Can that only occur in the last hour of your shift?‑‑‑No, I disagree. It could happen any time.
PN130
Can I work backwards with you, Mr Wooden? The second-last bullet point in Mr Shook's statement - 'Responsibility for addressing patron complaints or issues' - can they occur only in the last hour of your shift?‑‑‑No.
PN131
Thank you. If I may conclude with this question, Mr Wooden; are there things that happen during your shift that are unpredictable?‑‑‑Yes.
PN132
That may not only occur in the last hour of your shift?‑‑‑Correct.
PN133
But would they be issues that you are required to address as the employee on duty?‑‑‑Yes, correct.
PN134
I've nothing further, your Honour.
PN135
THE DEPUTY PRESIDENT: Mr Acev, you should be a little circumspect about leading questions.
PN136
MR ACEV: I wasn't trying to press my luck, your Honour. I am mindful.
*** SCOTT CAMERON WOODEN RXN MR ACEV
PN137
THE DEPUTY PRESIDENT: Yes, well, Ms Pike didn't object and I'm sure the objection would have been - - -
PN138
MR ACEV: Upheld? I appreciate the comment, your Honour.
THE DEPUTY PRESIDENT: Thank you. Yes, you may step down now. You may stay in the court room?‑‑‑Thank you, your Honour.
<THE WITNESS WITHDREW [10.31 AM]
PN140
MR ACEV: If I may be excused to call my next witness.
PN141
THE DEPUTY PRESIDENT: Yes. Are you off work at the moment?
PN142
MR WOODEN: Yes, I'm on leave. I've got income protection insurance. I've got to have a hip replacement.
PN143
THE DEPUTY PRESIDENT: Oh dear.
PN144
MR WOODEN: 48 years old, hip replacement.
PN145
THE DEPUTY PRESIDENT: Goodness - good luck with it.
PN146
MR WOODEN: Thank you.
PN147
THE ASSOCIATE: Please state your full name and address.
MR M WHITBY: Maxwell Whitby, (address supplied).
<MAXWELL WHITBY, AFFIRMED [10.32 AM]
EXAMINATION-IN-CHIEF BY MR ACEV [10.32 AM]
PN149
MR ACEV: Thank you, your Honour. Mr Whitby, could you please state your full name and current residential address?‑‑‑Ernest Maxwell Whitby, (address supplied).
*** MAXWELL WHITBY XN MR ACEV
PN150
Mr Whitby, in relation to these proceedings, did you prepare a statement in chief dated 1 July?‑‑‑Yes.
PN151
Is it a statement of some 34 points?‑‑‑Yes.
PN152
I may do this in a series to try and avoid confusion. I'd like to seek to tender a document and ask that it be taken as read.
PN153
THE DEPUTY PRESIDENT: Yes, both of them?
PN154
MR ACEV: I'm just doing one at a time so I don't confuse them. Mr Whitby, if you just take that pen there and just put the - sorry, exhibit - - -
THE DEPUTY PRESIDENT: Exhibit 3, the first witness statement.
EXHIBIT #3 FIRST WITNESS STATEMENT OF ERNEST MAXWELL WHITBY DATED 01/07/2019
PN156
MR ACEV: Just put, "EX 3", so you know which one we're talking about. If I may now - I may just need to clarify, your Honour; the statement in chief is in the name of Max Whitby. That is yourself, Mr Whitby? That is a statement in reply dated 30 July?‑‑‑Yes.
PN157
Do you have a copy of that, sir?‑‑‑I do.
PN158
Is it a statement of some 37 points?‑‑‑Correct.
PN159
If that could be tendered, your Honour, and taken as read?
PN160
THE DEPUTY PRESIDENT: Any objection?
PN161
MS PIKE: No objection.
THE DEPUTY PRESIDENT: I'll mark the reply statement of Mr Whitby exhibit 4.
EXHIBIT #4 REPLY STATEMENT OF ERNEST MAXWELL WHITBY DATED 30/07/2019
*** MAXWELL WHITBY XN MR ACEV
MR ACEV: Just mark that on the top. I've nothing further, your Honour, thank you.
CROSS-EXAMINATION BY MS PIKE [10.34 AM]
PN164
MS PIKE: Mr Whitby, you have in front of you exhibit 3. I want to refer to paragraph 20 of that statement. Paragraph 20 spans over the page and the following page. It contains a list of duties that you - it's your evidence that you perform as part of your role at the club. Did you prepare that list of duties?‑‑‑Yes.
PN165
So just to go through the first part of the list, for weekend shifts and the day shift component of that list - so on a day shift, you say that you count or verify the safe balance from the previous shift, make up the day's floats for the cash box, enter data into system 7000, involves daily records of monies being taken out of the safe for trading, prepared TAB and Kino floats, you prepare and issue floats to the main bar. So in summary, you say that you verify the safe balance, you record monies in the club system, you prepare the TAB and the Kino floats and you prepare and issue floats to the main bar. Do you agree with that?‑‑‑Yes.
PN166
Do you agree that all of those duties would be performed in the first approximately 90 minutes of an opening shift, a day shift?‑‑‑Yes, I agree with that.
PN167
Do you agree that for the remainder of the day shift, you don't perform the duties that are outlined in that list?‑‑‑I disagree, no - yes, I agree.
PN168
Do you agree that for the first 90 minutes of a day shift that you're paid a level 5 rate of pay?‑‑‑Yes, I agree.
PN169
I want to go now through the night shift duties that you have listed. Night shift, you say you reconcile all floats back into the safe and the data back into System 7000; involves daily record of monies returned back to safe from trading; decide whether the club closes early or stays open later; confirm to contract bar staff, decision re trading close time decided; decide when the casual bus driver would end his shift; dealing with customer complaints and issues. So in summary, you say in a night shift that you reconcile floats, you record monies into the club system, you decide on the closing time of the club, you advise the contractor staff of the closing time, you tell the bus driver when to end his shift and you deal with any customer issues. Do you agree with that?‑‑‑Yes.
*** MAXWELL WHITBY XXN MS PIKE
PN170
Do you agree that the first five duties that are contained in that list are performed in the final 60 minutes of a night shift?‑‑‑Yes.
PN171
Do you agree that the duty of dealing with customer complaints is not a common occurrence?‑‑‑It's not a common occurrence, but it does happen.
PN172
Do you agree it wouldn't happen every shift?‑‑‑Yes.
PN173
Do you agree that the casual bus driver doesn't report to you?‑‑‑No, I don't agree with that.
PN174
At paragraph 26 of your statement, of exhibit 3, you refer to a letter that was provided by United Voice to the club in relation to the duties and responsibilities of your role, is that correct?‑‑‑Sorry, which one? 26?
PN175
Paragraph 26 - you refer to the union letter dated 24 April?‑‑‑Yes.
PN176
Mr Whitby, do you have a copy of Mr Shook's statement in front of you?‑‑‑I don't.
PN177
Could I and that to Mr Whitby? Thank you?‑‑‑Thank you.
PN178
Mr Whitby, I would like you to turn to annexure F of Kyle Shook's statement. It's the final two pages of that bundle. Do you agree that annexure F of Kyle Shook's statement is a copy of a letter provided to the club by United Voice that is dated 24 April 2019?‑‑‑Yes.
PN179
Can you see the list of duties at the end of page 1 and spilling over on to page 2 of that document?‑‑‑Yes.
PN180
Did you provide that list of duties to United Voice prior to them sending this letter on your behalf?‑‑‑Yes.
PN181
So do you agree that these are the duties you say you perform in a closing shift?‑‑‑Yes.
PN182
Do you recall having a conversation with club management, being Kyle Shook and David Boag, that specifically related to that list of duties?‑‑‑I don't recall having an exact meeting with them.
*** MAXWELL WHITBY XXN MS PIKE
PN183
So I refer back to paragraph 26 of exhibit 3, your statement. Paragraph 26 you say: "At the first meeting, the duties, responsibilities stated in the union letter dated 24 April 2019, was discussed"?‑‑‑Yes.
PN184
So you agree that you had a meeting with Mr Boag and Mr Shook, that you discussed that list of duties?‑‑‑Yes.
PN185
Mr Whitby, I want to refer you to page 9 of Mr Shook's statement, paragraph 38 on page 9?‑‑‑Which paragraph, sorry?
PN186
Paragraph 38 is the length of page 9 and on to page 10. Mr Whitby, you've had a chance to read through that paragraph. Do you agree that Mr Shook's recollection of that conversation is an accurate representation of the conversation?‑‑‑Yes.
PN187
That paragraph 38 in Mr Shook's statement, Mr Shook goes through the club's response to each of those dot points that were outlined in the correspondence in annexure F of Mr Shook's statement. Do you agree that the dot points listed by Mr Shook in his statement are reflective of the dot points that were provided in correspondence to the club at annexure F of Mr Shook's statement - the final two pages?‑‑‑Sorry, I actually don't understand what you're asking me.
PN188
I'm asking you, the dot points that Mr Shook references in paragraph 38, do you agree that they're the same as the dot points referenced in Annexure F?‑‑‑Yes.
PN189
And you've agreed that the dot points in Annexure F that you provided those to the union to provide some correspondence to the club?‑‑‑Yes.
PN190
So you agree that those are the duties that you say that you perform in a closing shift?‑‑‑Yes.
PN191
Just going through each of those dot points and Mr Shook's response, the first dot point:
PN192
Assessing the trade level and determining the club's close time i.e. earlier than the proposed close time.
PN193
And Mr Shook's response was:
*** MAXWELL WHITBY XXN MS PIKE
PN194
Yes, it is a level 5 task as it is part of the closing the clubhouse duty detailed in the enterprise agreement for level 5. However, it shouldn't need to occur outside the last hour of work.
PN195
Do you agree that this duty would be performed within the last hour of your employment?‑‑‑Yes.
PN196
Dot point two:
PN197
Advising the contracted bar staff of such decisions, and instructing them to prepare to cease service.
PN198
Mr Shook's response was:
PN199
You should not be advising the contracted bar staff of when to close. It should only be communicated to each other.
PN200
Do you agree that this isn't a duty that you're required to perform, and that your responsibility is limited to communicating with the catering staff to determine a closing time?‑‑‑Yes.
PN201
Do you agree that any such communication with the catering staff would be in the last hour of work?‑‑‑Yes.
PN202
Dot point three:
PN203
Formally announcing the impending close time to club patrons.
PN204
Mr Shook's response was:
PN205
Yes, it is a level 5 task as it is part of the closing the clubhouse duty detailed in the enterprise agreement for level 5. However, it shouldn't need to occur outside the last hour of work.
PN206
Do you agree that this duty would be performed within the last hour of your employment?‑‑‑Yes.
*** MAXWELL WHITBY XXN MS PIKE
PN207
Dot point four - dot point four is put into two parts, and the first part:
PN208
Assessing the demand for patron conveyance.
PN209
Mr Shook's response was:
PN210
Yes, it is a level 5 task as it is part of the closing the clubhouse duty detailed in the enterprise agreement for level 5. However, it shouldn't need to occur outside the last hour of work.
PN211
Do you agree that the duty would be performed within the last hour of your employment?‑‑‑No, I don't agree with that.
PN212
The second part of dot point four:
PN213
Determining when the casual courtesy bus driver is to end their shift.
PN214
Mr Shook's response was:
PN215
No, you should not determine when the bus driver's shift ends. The bus driver should communicate with staff that they're finishing up when there are no bus bookings and the bus drivers have asked patrons if they will require a lift.
PN216
Would you agree that that's not a duty that you're required to perform?‑‑‑No. I agree - sorry, could you just say that again? Do I agree with the - - -?
PN217
Do you agree with Mr Shook when he says that it's not your duty?‑‑‑No, I don't agree with that.
PN218
Do you agree that any communication with the bus driver would be within the last hour of your employment?‑‑‑No, I don't agree with that either.
PN219
Dot point five:
PN220
Responsibility for accessing safe keys, personalised access codes and activation of club security system individual access codes.
*** MAXWELL WHITBY XXN MS PIKE
PN221
Mr Shook's response is:
PN222
Level 5 specifically states that the mere movement of cash from the safe is not a level 5 duty. So accessing the safe keys to get more cash, which could be outside of the last hour of work, is not a level 5 duty. Activating club security is level 5 under closing the club duty, but only occurs in the last hour of the shift.
PN223
Do you agree that activating club security is a duty that's performed in the last hour of your employment?‑‑‑Yes.
PN224
Do you agree that when you are required to access safe keys that it is to simply move money into floats that are already in use in the club?‑‑‑I do, yes.
PN225
Point six, "Responsibility for addressing patron complaints." Mr Shook's response is:
PN226
Nothing specifically stated in level 3 or 5 of the enterprise agreement regarding addressing patron complaints. Staff should make a note of the complaint and give it to either David Boag or myself. It is reasonable to assume a level 3 staff can address small complaints when they arise.
PN227
In that case do you agree that it's not a management duty and complaints can be addressed by staff members on the rare occasion that they do arise?‑‑‑Well, I do agree that they can be handled, but I don't agree with the fact that there's been any notification or anything like that to take note and hand it to David or management, because I'm the only staff member there, so I have to handle it.
PN228
So since that conversation - so that conversation occurred on 24 May, and the instruction was if there's a staff complaint then you should take a note and pass it to either David or to Kyle?‑‑‑No, that never happened.
PN229
It never happens as in there's not a complaint that needs escalating to management?‑‑‑Well, if there was a complaint that was that out of control I suppose I would phone management, but I've learnt to handle it myself, being the only staff there.
*** MAXWELL WHITBY XXN MS PIKE
PN230
But you've been given the ability to contact management if a complaint that arises that's outside of your skills?‑‑‑Well, there has been nothing formal put down as that.
PN231
Nothing formal, but you do agree that that conversation occurred?‑‑‑Listen, can I just - - -
PN232
THE DEPUTY PRESIDENT: No, just answer the question?‑‑‑Okay, sorry.
PN233
MS PIKE: The last dot point seven, "Responsibility for dealing with uncooperative or unruly patrons", Mr Shook's response was:
PN234
All staff have a duty under their responsible service of alcohol to deal with unruly patrons. This should be documented in the incident book and the police should be rung if any situation escalates. This is not solely a level 5 duty.
PN235
Do you agree that it's not a management duty and that such issues could be addressed by a staff member on the rare occasion that they do arise?‑‑‑Yes.
PN236
Do you agree that the seven duties that are detailed in the correspondence provided by United Voice from 24 April are reflected somewhat in your witness statement in this matter, in exhibit 3?‑‑‑Yes.
PN237
Do you agree that in Annexure F of Mr Shook's statement that the seven duties detailed in this correspondence, the first five of those duties are performed in the final 60 minutes of a shift?‑‑‑Yes.
PN238
Do you agree that the final two duties that are detailed in that correspondence are not strictly management or supervisor duties and can be performed if and when they arise by a non‑supervisor on shift?‑‑‑Yes, well I do agree, but - - -
PN239
I want to take you now to paragraphs 9 to 11 of your statement in‑reply, so exhibit 4 in front of you?‑‑‑Yes.
PN240
Paragraph 9, you say that you were telephoned by the club security company, Primus?‑‑‑Mm‑hm.
PN241
But that you were asleep and you didn't answer the phone?‑‑‑Mm‑hm.
PN242
Do you agree that you didn't direct the security company?‑‑‑I didn't direct them, no.
*** MAXWELL WHITBY XXN MS PIKE
PN243
Do you agree that since the restructure that occurred in October 2018 that this is the only time that you've been contacted by the club security company?‑‑‑It is.
PN244
Do you agree that the final 60 minutes of your closing shifts are paid at a level 5 rate of pay?‑‑‑Pardon?
PN245
Do you agree that the final 60 minutes, the final one hour of your closing shifts are paid at a level 5 rate of pay?‑‑‑Yes.
PN246
On the basis of the comments that have been today in relation to the duties that you perform, and that the majority of those duties that you say that you perform are performed in the final hour of your shift, do you say that your role is best classified as a level 3 role?‑‑‑I don't know if it's best classified as a level 3. What - - -
PN247
Do you agree that you are paid level 5 rate of pay for the final one hour when you're required to perform closing duties?‑‑‑Yes.
PN248
And you agree that you are paid level 3 for the remainder of your shift?‑‑‑Yes.
PN249
Do you agree that that's the best classification; it's the best classification for the duties that you perform during that shift?‑‑‑No, I don't.
PN250
Nothing further, your Honour.
PN251
THE DEPUTY PRESIDENT: Mr Whitby, in the second statement you refer to the general manager making a sign, which said "Manager on duty", and there's a space where the person's name is put. I'm not quite sure why that's there. Does that mean when you're on duty your name is put there?‑‑‑Yes. The reason is - - -
PN252
Because you're the only employee there?‑‑‑Yes, I'm the only employee there, employed by the club.
PN253
Yes, I understand that, because the bar and bistro staff are contractors. Yes?
PN254
MR ACEV: Sorry, your Honour, I have nothing arising.
*** MAXWELL WHITBY XXN MS PIKE
THE DEPUTY PRESIDENT: Thank you, Mr Whitby. You may step down. You're released from your oath and can remain in the court now.
<THE WITNESS WITHDREW [10.57 AM]
PN256
MR ACEV: Your Honour, that concludes the evidence of the applicant.
PN257
THE DEPUTY PRESIDENT: Thank you. Yes, Ms Pike?
PN258
MS PIKE: Your Honour, I would seek to call David Boag.
PN259
THE ASSOCIATE: Please state your full name and address.
MR BOAG: David James Boag, (address supplied).
<DAVID JAMES BOAG, SWORN [10.58 AM]
EXAMINATION-IN-CHIEF BY MS PIKE [10.59 AM]
PN261
MS PIKE: Mr Boag, do you have a copy of your statement in front of you?‑‑‑Yes, I do.
PN262
Does that statement in front of you contain 28 paragraphs and one annexure, Annexure A?‑‑‑Yes, it does.
PN263
Is that statement signed by you, dated 21 July 2019?‑‑‑Yes, that's correct.
PN264
Mr Boag, is there anything in your statement that you would like to change?‑‑‑No, there's nothing in my statement that I would like to change.
PN265
Is that statement true and correct to the best of your knowledge?‑‑‑To the best of my knowledge it is true and correct.
PN266
Your Honour, we ask that the statement of David Boag be tendered into evidence and taken as read.
PN267
THE DEPUTY PRESIDENT: Any objection?
*** DAVID JAMES BOAG XN MS PIKE
PN268
MR ACEV: No objection, your Honour.
THE DEPUTY PRESIDENT: I'll mark the statement of David Boag, exhibit A.
EXHIBIT #A WITNESS STATEMENT OF DAVID BOAG DATED 21/07/2019 PLUS ANNEXURE
MS PIKE: Nothing further, your Honour.
CROSS-EXAMINATION BY MR ACEV [11.00 AM]
PN271
MR ACEV: Mr Boag, can I take you to point 26 of your statement; point 26(b). I read and I quote:
PN272
The club has not had supervisor positions since 25 June 2015 when these roles were made redundancy.
PN273
Mr Boag, I put to you up until approximately September/October of 2018 the club continued to roster and have people working in the supervisor‑in‑charge capacity. Is that correct or incorrect?‑‑‑There was no supervisor positions as such from that date, that I've stated there. There was people rostered on into IP positions on an as need basis.
PN274
IP or IC?‑‑‑IC.
PN275
But they were paid at level 5?‑‑‑For the particular duties if they had received that roster.
PN276
I'll put this to you, Mr Boag: my questions will relate predominantly to closed shifts Monday to Friday and weekend shifts. I set those parameters with you now, sir. When I ask you about a shift, I'm specifically talking about shifts that occur as a closed shift Monday to Friday - sorry, Monday to Sunday, but also day shifts on the weekend, as well. They are the shifts I'm talking about, but exclude Monday to Friday 9.00 to 5.00. Are we in agreement on that point?‑‑‑Yes.
PN277
Okay. Thank you. I put it to you, sir, up until that late period of September/October last year, there were people operating in a supervisory capacity being paid at level 5. Is that not correct?‑‑‑Someone would have been rostered on for that particular shift providing senior management was not on duty.
*** DAVID JAMES BOAG XXN MR ACEV
PN278
Well, isn't it the case that after 5 pm there is no senior management on?‑‑‑At this time, that's correct.
PN279
At September/October onwards I'm talking about?‑‑‑That's correct
PN280
Just to clarify, Mr Boag, has the club at any stage operated a duty director's roster for directors to be present in the club outside of normal business hours?‑‑‑Could you - - -
PN281
Do you know what I mean by a duty roster? I can explain?‑‑‑Could you restate just what you mean, please.
PN282
Certainly?‑‑‑To clarify it.
PN283
In some establishments, Mr Boag, there is a roster for directors to be present in the club to act in a senior capacity; to make decisions and make determinations during the trading. Do you understand the concept?‑‑‑Directors have never been rostered on to make decisions in that manner.
PN284
Okay. Now, the next question: have the employees on those shifts we've determined are the closed shifts or the weekend shifts - has there ever been a formal instruction to any of those employees to contact a member of the board in relation to any exceptional circumstance that may arise during the shift?‑‑‑No.
PN285
In approximately September/October last year the club made a decision to contract out its bistro and its bar service. Correct?‑‑‑That's correct.
PN286
So really the only area that required club employees to be rostered in was the gaming side. Is that correct?‑‑‑That's correct.
PN287
Okay. So it would be also correct to say that on those closed shifts and the weekend shifts, the only club employee on shift was that person which was the gaming attendant - the cashbox attendant?‑‑‑That's correct.
PN288
In respect to that, that person would have been required to deal with what I will call exceptional circumstances that may have arisen during the trading time. Do you agree with that?‑‑‑Not on their own.
*** DAVID JAMES BOAG XXN MR ACEV
PN289
Well, Mr Boag, you have just agreed with me that there is no duty director and that there is no instruction to contact anyone in relation to such occurrences, so would you not agree that that person has that responsibility?‑‑‑There is other operational people in charge in areas of the club, so that person is not entirely responsible on their own for the services in the club and all areas of the club.
PN290
Mr Boag, just clarify it for me. I have put to you that there is a directly employed club employee in the change box. Correct?‑‑‑That's correct.
PN291
What other directly club‑employed employees are there on shift, particularly on these closed shifts and weekend shifts?‑‑‑There's no other direct club employee. There is other people who are employed by a contractor under the direction of the club. The contractor is under direction of the club.
PN292
So is it your evidence, sir, that that contractor has authority over what the change box attendant does?‑‑‑Not over him, but they work in parallel in different areas of the club.
PN293
Mr Boag, I'll use the bar contractor as the example. Does he have the ability to instruct the change box attendant what to do and when to do it?‑‑‑No, he does not have the responsibility to instruct. The change box attendant has his area of service in the club. Where there would be an overlap, if there was someone that was in an intoxicated - as an example, if someone was intoxicated or showing under the influence in the bar area, he would notify the other area of the club and instruct them that this person is to no longer be served. That's the best example I could give.
PN294
That's not correct though, is it, Mr Boag?‑‑‑It is correct.
PN295
Just working through that example you gave, the contract bar staff may be able to - would refuse the gentleman service. Let's call them the patron. Correct?‑‑‑That's correct.
PN296
Would they approach the patron and escort him off the premises?‑‑‑Yes, that is their role and responsibility.
PN297
The bar staff?‑‑‑Yes.
PN298
Contract bar staff?‑‑‑Yes.
*** DAVID JAMES BOAG XXN MR ACEV
PN299
They would not go to the change box attendant, being the club employee, and say, "Listen, can you do something about this bloke"?‑‑‑Not necessarily. If he walked into the gaming area they would, yes, say, "We have refused this person service out in our area", and notify them of the case.
PN300
Mr Boag, you have given an example of an intoxicated individual. What about simply a person that is being disruptive, loud and noxious?‑‑‑The same sort of role is expected from people that are in these positions.
PN301
But the bar staff would have no say over that person being loud or argumentative. Perhaps a domestic dispute or quarrel, what would the bar staff have to do?‑‑‑Well, if that person that you're talking about is within their areas of control, they are responsible and they are responsible for removing that person.
PN302
So, Mr Boag, are you saying there is some imaginary line extending from the bar that, "This is my part of the world and that's your part of the world", as a club employee?‑‑‑There is a direct area of responsibility and it's clearly defined in the club.
PN303
Mr Boag, isn't it true that the person rostered on the change box has the sole responsibility and the expectation, I put to you, from the club to evaluate and take decisive action in relation to issues that arise during shift? That's their responsibility, isn't it?‑‑‑In their particular area.
PN304
Are you saying that's not higher than a level 3 grade rate of pay as a responsibility?‑‑‑Level 3 has certain responsibilities and most of the duties fall within that level.
PN305
What do you understand a level 3 change box attendant's responsibilities are?‑‑‑Level 3 change responsibility is the service of the patrons in the entire gaming area.
PN306
Okay. That would include doing payouts. Is there a TAB box in there?‑‑‑There is payouts, TAB and Keno.
PN307
So as a kiosk type of establishment, that's what they do?‑‑‑That's correct.
*** DAVID JAMES BOAG XXN MR ACEV
PN308
Don't your agreements specifically confirm this responsibility over and above those physical activities? The responsibility of dealing with exceptional circumstances?‑‑‑Those so‑called exceptional circumstances I believe fall into the level of responsibility for serving alcohol or managing gaming. There are certain things you have to do to get your accreditation to do these things.
PN309
Are you saying the RSO accreditation includes manhandling patrons off the premises?‑‑‑No one ever mentioned manhandling from our side of it. It's the responsibility if someone is intoxicated to ask them to leave the premises and refuse them service.
PN310
Mr Boag, is it not correct to say, sir, that prior to October last year those kind of exceptional circumstances would have been handled by the in‑charge supervisor?‑‑‑It would have been referred to the in‑charge supervisor if he was on hand at the time. If not, the responsibility still fell back to the other employee.
PN311
Would you agree, Mr Boag, that exceptional circumstances - and we've used one which is an unruly patron, and I'll give you another example. Licence employees, they do visitations around establishments in your area, don't they?‑‑‑Yes, they do.
PN312
Have they been known to go to your club?‑‑‑Yes, they do.
PN313
Do they announce themselves; what date and time they will be there?‑‑‑Not normally.
PN314
So they could be random, couldn't they?‑‑‑Yes, they could.
PN315
Day, night, weekdays, weekend, any time during a shift. Correct?‑‑‑Yes, that's correct.
PN316
So let's assume they attended your club of an evening or a closed shift and your change box attendant is on duty. You agree with me so far?‑‑‑Yes.
PN317
Would that licensing policeman go to the bar and talk to the contract staff?‑‑‑Well, if he walked up to the change block first, the change block person should be referring him across to the bar; the people that are in charge of the alcohol in the place, looking after that side of it.
PN318
That person is not in charge of the club, are they?‑‑‑They are in charge of the alcohol service and that sort of service in the club, and that is specifically what you referred to, the licensing police coming in.
*** DAVID JAMES BOAG XXN MR ACEV
PN319
Correct?‑‑‑Now, if it's a gaming matter and it's gaming, they would speak to the person in the change box.
PN320
Mr Boag, I put it to you, sir, the sole person with responsibility and authority to deal with that matter would be the person in the change box?‑‑‑That's not correct. Incorrect.
PN321
So is your evidence that you would delegate the club management to a contractor who provides bar service?‑‑‑The area of the club that is contracted out is the bar and catering. It's not being delegated to anybody. The appropriate paperwork is in place, so the licensing police come into the place - if they ask at the change box, they would be referred across to the bar management to look after that.
PN322
According to your evidence, Mr Boag, the change box person goes, "Hey, sorry, officer, not my problem"?‑‑‑I wouldn't have thought he would have thrown his hands in the air. I think he would respectfully put him over in the right direction to the people - the appropriate personnel that he should be speaking to.
PN323
According to your evidence, sir, everyone could say, "Sorry, officer, not my problem. I'm a club employee. Nothing to do with me." That's your evidence, is it?‑‑‑If it's on that side of it, that's where it would go. If it was gaming, it would be the responsibility of our employee in the change box.
PN324
If I may approach the witness. Mr Boag, point 38 has been referred to?‑‑‑I'm to look at this statement from Kyle Shook?
PN325
For the record, your Honour, I've handed the witness a copy of Mr Shook's statement and I'm referring him to point 38.
PN326
Do you have that point, Mr Boag?‑‑‑I have point 38.
PN327
It refers to a meeting that was held. Do you recall being present, sir?‑‑‑Yes, I do.
PN328
Can I just take you through those points and it has been put that this meeting was done to address issues raised in a union letter, which I think is annexure F to the statement, as well?‑‑‑That's correct.
*** DAVID JAMES BOAG XXN MR ACEV
PN329
Okay. So just going through them, sir, point 38, bullet point 1, "Assessing the trade level and determining the club's close times." Was there no conversation about extending the club close times?‑‑‑Extending - we have a set closing time and for as long as I've known, the change box - person on the change box - has been the one that assessed their patronage in the gaming and suggested to the supervisor, if there was - when we had supervisors there, they would suggest to the supervisor it's time we close now, if the supervisor hadn't been over to them.
PN330
So to your knowledge, sir, you're saying this change box person has never extended the trading times when it's close to the close times?‑‑‑No, not extended after the set closing time I don't believe.
PN331
But you can't say it has never happened?‑‑‑I can't say it has never happened.
PN332
I suppose, sir, because you're not in the club at 11 o'clock at night, are you?‑‑‑That's right.
PN333
Over the page, sir, on page 10, the second last bullet point says, "The meeting involved discussing responsibility for addressing patron complaints." Do you agree, sir, that complaints and issues aren't necessarily the same thing?‑‑‑Can you - - -?
PN334
The word "complaint" and "issue" could refer to two completely different scenarios?‑‑‑Yes.
PN335
For example, a complaint would be: look, my beer is flat. An issue may be: look, someone has stolen my jacket. Do you understand the distinction I'm trying to make, sir?‑‑‑Yes, I can see the distinction.
PN336
But the person who would be responsible from October onwards to deal with those complaints/issues were the change box attendant?‑‑‑Yes, and we had an issue recently and they were asked to put it in writing and it was handled by the more senior people the next day, and that's what we've referred to. They have a complaints book there and we ask them to put it in the book for us, and it will be dealt with by - - -
PN337
Isn't it true, Mr Boag, that that change box person is vested with and is expected by the club to assess the situation and take the necessary action to address the issue?‑‑‑Depending on the seriousness of the issue as to where it's got. Otherwise, as I say, they had to write down the record of it and refer it on to senior management to handle that issue.
*** DAVID JAMES BOAG XXN MR ACEV
PN338
I know that is said, but the employee would assess that on the night, wouldn't they? That's their assessment?‑‑‑Well, it's a part of their role in what their job is to keep the place running efficiently and effectively.
PN339
Mr Boag, do you accept that responsibility is higher than a level 3 rate of pay?‑‑‑No, I don't, because certain responsibilities come with managing a - or looking after a gaming area and serving there, and the same with the serving of alcohol. There are certain responsibilities of the employee.
PN340
Mr Boag, I put to you they are expectations the club has?‑‑‑They're not an expectation. They are there and guidelines without - written down for them - - -
PN341
Sorry, guidelines - - -?‑‑‑Not by the club. There are guidelines there with people that have got gaming responsibilities, and they're there in the liquor and gaming - they put the guidelines out for the responsibilities.
PN342
I ask a simple question, Mr Boag - is there a job description for the level 3 change box attendant that includes this responsibility you talk about?‑‑‑Kyle would be the best one to answer that rather than me. I'm unsure of the - there is guidelines. To what extent they are, I cannot give you the answer to that.
PN343
I asked a direct question, sir. Have you seen a job description for that grade that says that?‑‑‑I have seen job descriptions. To the extent you're asking, I can't give you the answer to that.
PN344
I accept that. So you believe Mr Shook is the more appropriate person to ask that question?‑‑‑I believe he is the more appropriate one to answer that.
PN345
But you can't say for sure whether you've seen a job description that actually contains that as a requirement?‑‑‑I've seen a document. I don't know if it contains the requirement that you're asking me to answer.
PN346
Well you've got Mr Shook's statement, haven't you, there? It should have at the back of it, sir, a copy of the agreement that covers the club. It's Attachment A, so it's the immediate document after the statement body, if you like. If you continue - I don't have a page reference, your Honour, I'm sorry, but it is towards the back of that document of the agreement?‑‑‑Is that the document with all the various levels in it that you're talking about?
*** DAVID JAMES BOAG XXN MR ACEV
PN347
That's correct, sir. If you want to go to level 3 for me? Go to level 3 for me?‑‑‑Level 3, yes.
PN348
Do you agree with me, firstly, sir, that level 3 has the descriptor - level 3 - these are indicative duties. So I put to you "indicative" means it's not an exhaustive list of duties. Would you agree with that? It's simply an indication of the kind of things that it might be covered by. Would you agree with that definition, sir - "indicative?"---Yes, I guess so.
PN349
Take your time, sir, to scan through that. Can you take me to any reference that would resemble what you've been talking about, the responsibility of dealing with what I call exceptional circumstances? Is it contained within level 3 of your document?‑‑‑It's not contained in that written information there.
PN350
So would you agree then, sir, by extrapolation, by simply reading that, it's not a level 3? It may be something else - a 4, a 5, but it's not in 3?‑‑‑No, I don't agree with you.
PN351
We've confirmed, for want of a better word, Mr Boag, that level 3 doesn't contain that provision, or that requirement or responsibility. I put it to you, sir, it would be a higher grade than level 3?‑‑‑No, I disagree.
PN352
Okay. Thank you. Thank you, your Honour. I have nothing further.
PN353
THE DEPUTY PRESIDENT: Mr Boag - - -
PN354
MR ACEV: Sorry, if I may just continue. Mr Boag, there has been evidence, and I'll give you the reference - it's actually in exhibit 4. If I may approach the witness, your Honour? I'm referring to exhibit 4. If you can go to point 33?‑‑‑Yes.
PN355
Just read point 33 of - I think it's of Mr Whitby's statement, exhibit 4 - so just read point 33. Have you read that, sir?‑‑‑Yes.
PN356
Do you remember that sign being on the bar?‑‑‑Yes.
PN357
Is it still on the bar?‑‑‑It's still there, yes.
PN358
Is it still being used? Are different names being put in?‑‑‑No, because the bar is run by a separate entity and they have their personnel there, and they - we - it used to be in place for us where the duty person could be in several different areas in the club, so it was to identify who they were looking for and where they might be.
*** DAVID JAMES BOAG XXN MR ACEV
PN359
So according to you, when did this practice discontinue?‑‑‑When the change was made in September.
PN360
But the sign is still on the bar, is that right?‑‑‑It's not a permanent sign on the bar. It's something they put up for convenience of patrons.
PN361
To identify the appropriate club contact?‑‑‑Not necessarily club contact. Now it wouldn't be club contact. If you're looking for a bar manager, it would not be club contact.
PN362
Mr Boag, I put this to you, sir, that the responsibility for assessing and taking action by that change box attendant, the only club‑rostered employee, could occur at any time during their shift, do you agree with that, sir?‑‑‑Yes, it could.
PN363
It's not particularly restricted to the beginning or the end of their shift for one hour?‑‑‑No, but the change box is restricted to their area of the club.
PN364
But the responsibility of having to deal with what we've referred to as exceptional circumstances could occur any time from the start to the end of their shift?‑‑‑Yes, it could.
PN365
Thank you, your Honour. Nothing further.
PN366
THE DEPUTY PRESIDENT: Mr Boag, are either you or Mr Shook on call for either when there is only one club employee on shift, or to be contacted by the contracted bar staff, who presumably have some sort of supervisor?‑‑‑My phone number is listed there, but I have never been called at this point in time.
PN367
Since October last year?‑‑‑Yes, even prior to that. The only calls I have had to have are from security when the alarm or something hasn't been right, and I've got a call from security when they couldn't reach the appropriate person and I've gone up to check why it was showing the alarm.
PN368
And who was the appropriate person in that situation?‑‑‑Well, it depended. It used to be the general manager and the bar manager. They were the two people that were on the list, and then it fell to the president of the club, and then to the secretary of the club. That was the order of phone calls.
*** DAVID JAMES BOAG XXN MR ACEV
PN369
I think there is some evidence that a phone call was made to Mr Whitby?‑‑‑Yes, I think this can be clarified. What happened, it was only I think about 10 days or so ago. It was very recent. There were a number of names we needed to take off the alarm system. The security company came in and reissued codes for people, and they took away the complete list. They had no authorisation to ring the other people on the list. They took away the complete list and obviously went through the list, ringing people until they got someone. Since then, we've been in contact with the company and they have been issued with instructions of who they are to call. They took it on themselves just to go down the list of names that they had as recorded to - because from the codes they can see who has locked the club or who has - - -
PN370
Well there wouldn't be too many people on the list?‑‑‑There's about eight I think.
PN371
Including contractors?‑‑‑The bar people, they have their own code to come in, because they also do the cleaning of the club, so they stay there after hours a lot of the time and do the final lock up of the club doors.
PN372
No, but are they on the list to be contacted?‑‑‑Yes, they are.
Thank you.
RE-EXAMINATION BY MS PIKE [11.28 AM]
PN374
MS PIKE: Mr Boag, just a couple of questions about some points that were raised with you by Mr Acev. You were taken to point 26 of your statement, 26, part (b). Your statement at 26(b) says, "The club has not had supervisor positions since 25 June 2015 when these roles were made redundant", and you were asked a question about whether or not that was true in fact, given that up until September last year you had people performing in‑charge shifts. Do you want to explain to the Commission the difference between a supervisor and the supervisors that were made redundant and the in‑charge shifts?‑‑‑Yes, well prior to June there was people that were employed at the club in the level 5 positions, and that was their role. That was their employment positions.
PN375
Were they full‑time, part‑time, casual?‑‑‑They were full‑time employees at that time or permanent part‑time. They were two positions - depending on who it was, those two positions, and whenever they were on at those times, they were in supervisory positions and they were paid at a level 5. After this time in July, there were some redundancies paid, and people that wanted to stay on, and some came back in level 3 positions to the club.
*** DAVID JAMES BOAG RXN MS PIKE
PN376
So some staff were made redundant in 2015?‑‑‑That's correct.
PN377
So your full‑time and part‑time supervisors were all made redundant?‑‑‑Were all gone, yes.
PN378
But you maintained some of those staff?‑‑‑Yes.
PN379
At a level 3 rate of pay?‑‑‑That's correct.
PN380
And then some of those level 3 staff then performed in‑charge duties?‑‑‑In‑charge position on an as needed basis.
PN381
Thank you.
PN382
THE DEPUTY PRESIDENT: But you don't have that any more?‑‑‑No, we have no one - - -
PN383
Since October last year?‑‑‑No, there is no staff for our staff to be in charge of any more, because we have no bar and catering.
PN384
I understand that.
PN385
MS PIKE: Mr Boag, you were taken then to an annexure to Mr Shook's statement, Annexure A of Mr Shook's statement, and in particular the classification levels in that statement. You went through the list of level 3 duties, and you were asked whether the duty of responding to patron complaints or issues involving club patrons was on that list, and you said that it wasn't. It was then suggested to you by Mr Acev that it might then be considered a level 4 or level 5 duty, but you were not asked to review the level 4 or level 5 duties in that document to see whether that duty was in those two lists. Do you want to review the level 4 and the level 5 definitions there? So you reviewed level 4 and level 5?‑‑‑Yes, I have.
PN386
And do you say that that particular duty is listed under either of those classifications?‑‑‑I can't see the duties listed under those classifications.
PN387
Nothing further, your Honour.
THE DEPUTY PRESIDENT: Thank you, Mr Boag. You may step down. You're released from your oath and you can remain in the court now. Thank you.
*** DAVID JAMES BOAG RXN MS PIKE
<THE WITNESS WITHDREW [11.32 AM]
PN389
THE DEPUTY PRESIDENT: I'll take the morning adjournment now and I'll resume at 10 to 12.
SHORT ADJOURNMENT [11.32 AM]
RESUMED [11.51 AM]
PN390
THE DEPUTY PRESIDENT: Yes, Ms Pike.
PN391
MS PIKE: Your Honour, I call to the stand Kyle Shook.
PN392
THE ASSOCIATE: Please state your full name and address.
MR K SHOOK: Kyle Shook, (address supplied).
<KYLE SHOOK, AFFIRMED [11.52 AM]
EXAMINATION-IN-CHIEF BY MS PIKE [11.52 AM]
PN394
MS PIKE: Mr Shook, do you agree that you've made a statement in this matter?‑‑‑Yes.
PN395
Do you have a copy of that statement in front of you?‑‑‑Yes, I do.
PN396
Does that statement contain 44 paragraphs and annexures A to F?‑‑‑Yes.
PN397
Is that statement signed by you on 22 July 2019?‑‑‑Yes, it is.
PN398
Is there anything in that statement, Mr Shook, that you would like to change?‑‑‑No.
PN399
Mr Shook, is that statement true and correct to the best of your knowledge?‑‑‑Yes.
PN400
Your Honour, we ask that the statement of Kyle Shook be tendered into evidence and taken as read.
*** KYLE SHOOK XN MS PIKE
PN401
THE DEPUTY PRESIDENT: Any objection?
PN402
MR ACEH: No objection, your Honour.
THE DEPUTY PRESIDENT: I'll mark the statement of Kyle Shook exhibit B.
EXHIBIT #B WITNESS STATEMENT OF KYLE SHOOK DATED 22/07/2019
MS PIKE: Nothing further, your Honour.
CROSS-EXAMINATION BY MR ACEV [11.53 AM]
PN405
MR ACEV: Thank you, your Honour. Mr Shook, I note that you say you've been employed with - an employee of the club since February 2017. That's a full-time position with the club as financial controller?‑‑‑It was initially but now it's a permanent part-time role.
PN406
When was that transition into a permanent part-time role? Do you recall?‑‑‑I believe around November 2018.
PN407
So it's fair to say that you haven't spent a lot of time in the club per se since that date?‑‑‑Usually around three to four days a week.
PN408
How many hours per day?‑‑‑Roughly eight.
PN409
So that would be 9 to 5, business hours?‑‑‑Correct.
PN410
You wouldn't spend a lot time in the evening and the weekends?‑‑‑Correct.
PN411
Would it be true to say, sir, that your direct knowledge of what occurs on shifts of an evening or a close shift and at weekends, you'd have very little direct knowledge, is that correct?‑‑‑No, I wouldn't agree with that.
PN412
Do you spend a lot of time in the club of an evening after 5?‑‑‑No, I don't.
PN413
Do you spend a lot of time on the weekends in the club?‑‑‑No, I don't.
*** KYLE SHOOK XXN MR ACEV
PN414
So how would you have - what direct knowledge would you have of what happens in the club?‑‑‑Usually issues make their way back into the office and we do have to deal with them as they come up.
PN415
So things are reported to you, is what you're saying?‑‑‑Yes.
PN416
My question was any direct knowledge. So you haven't actually seen what happens on a night shift or a weekend?‑‑‑Direct knowledge? No.
PN417
My question, Mr Shook - going to that shift pattern, what I call close shift from - I assume, let's say from 5 onwards, Monday to Sunday, and weekend shifts, day and night. Can we discuss those shifts, okay?‑‑‑Sure.
PN418
We're excluding Monday to Friday, basically, 9 to 5, okay? In relation to employee engagement post, say, September/October last year, can you confirm, sir, the only direct club employee rostered on to work on those shifts - the nights and the weekends - is change box attendant level 3. Is that correct?‑‑‑Yes.
PN419
Does the club engage or have a roster for duty directors to be on shift on those evenings and weekend shifts?‑‑‑Before the restructure or after?
PN420
Sorry, from October onwards?‑‑‑October onwards - well, that's not handled by the club directly. It's handled by the contractor.
PN421
Sorry, perhaps I should rephrase. I asked does the club - since September/October 2018, has or does the club employ a roster for duty directors, club directors to be on duty in those evening/weekend shifts?‑‑‑Club directors meaning board members?
PN422
Yes?‑‑‑No, there is no roster for board members.
PN423
It would be correct to say that the only that the only club employee - the directly employed employee by the club - is this change box attendant on those shifts, correct?‑‑‑Correct - directly employed, yes.
*** KYLE SHOOK XXN MR ACEV
PN424
To the best of your knowledge, Mr Shook, has there ever been a directive, a formal - I'll use the words formal written directive - to that change box attendant employee on those shifts to contact a member of the board or indeed yourself, maybe, or anyone else in respect to what I would class as exceptional circumstances occurring during shift? Has there ever been such a directive?‑‑‑Sorry, in writing, you're asking?
PN425
We'll start with writing, yes?‑‑‑I don't know, in writing, but verbally, yes.
PN426
Who made that directive? Do you recall?‑‑‑I know I've spoken to Max on at least one occasion, where I said, "I believe there is a post-it notes with my number in the change box and if they ever have issues they can ring me." They have rung me on weekends before for assistance.
PN427
But would you agree that phone call would come after two things: one would be the change box attendant would assess the circumstance - - -?‑‑‑Yes.
PN428
- - - and then decide whether they do or don't call you?‑‑‑Yes.
PN429
It's their discretion to do those two things, correct?‑‑‑Yes, it is.
PN430
So they have that responsibility. They don't just go, "Hang on, we're out of hand towels. Can you get down here? There's no pencils in the counter boxes." They have the responsibility in addition to the physicality of doing change and gaming payouts in TAB and Kino to have this assessment of possible issues or incidents that may need to be addressed. You agree with that?‑‑‑Yes.
PN431
Well, would you agree then that that responsibility would be in excess of a level 3 grade of pay?‑‑‑No, I wouldn't, because in many cases, it's tasks that really could wait until the weekend. In my view, I think that if there is anything that is that urgent, it would most likely have to be responded to by emergency services, so police or firemen or ambulance. Most of the work we do for administration, it can be cleared up on the weekday.
PN432
I'll give you a scenario: there's a couple having a domestic quarrel or dispute in the club. The only person on duty is the change box attendant. Would the expectation be that the change box attendant would deal with that dispute in the club?‑‑‑If it turns violent, no. He or she would ring the police.
PN433
I mean, they're loud, they're swearing. There's no blood, there's no broken bones ‑ ‑ ‑?‑‑‑Okay.
PN434
‑ ‑ ‑but it's very disruptive?‑‑‑Yes.
*** KYLE SHOOK XXN MR ACEV
PN435
You'd expect the club change box employee to deal with that situation, wouldn't you?‑‑‑Yes, if there was - yes, if it didn't get too serious. Yes.
PN436
And they would decide, hang on, I might need the police, I might not. So there's a discretionary assessment done and then they would decide what they would do next. The decisive action would be taken?‑‑‑Sure.
PN437
Would you agree that such things are unpredictable? They can occur at the beginning, middle or end of a shift. There's no pattern or rhyme to those kind of things?‑‑‑Of course.
PN438
Let's assume someone is damaging club property. They're pounding on a machine that's just not paying out money. I mean, it's not breaking the machine but, once again, you'd expect the change box attendance to go and deal with that, wouldn't you, as a club representative?‑‑‑Yes. If it was happening in the gaming area.
PN439
Why that qualification? What if there was a patron standing in the front of the bar, pounding the bar railing whatever it is at the counter, would he not be required to go then and deal with that situation?‑‑‑Well, look, we obviously need to work in partnership with the contractor, but we are contracting out the bar and bistro, as you know, really I would be asking why the contractor wouldn't be responding to that.
PN440
Mr Shook, since October last year what do you define as the club? The physical - is the club all areas except the bar and the bistro? Is that how you define the club?‑‑‑No, I define the club in its entirety.
PN441
So, well, the four walls and the floor space, that's all the club?‑‑‑Yes.
PN442
So is that then not true that the change box attendant, being the only club rostered employee on shift, he's responsible for the club?‑‑‑No, I disagree with that.
PN443
Why?‑‑‑Because the tasks that we've given to the change box staff to these employees only involves covering the gaming area.
PN444
So if a destructive patron moves from the gaming area to the bar he can go, "Well, hang on, not my problem any more, it's now bar area service". So can he deny acting, is that how it works?‑‑‑No, look, he - they are working in partnership with the contractor and as they both, for example, decide when to close ‑ ‑ ‑
*** KYLE SHOOK XXN MR ACEV
PN445
Let's deal with the disruptive patron then as the example?‑‑‑Yes, I guess I'm just ‑ ‑ ‑
PN446
He's crossed over from, like, gaming area to the bar, whatever you call the tiled area?‑‑‑Yes. I guess I'm just highlighting the partnership that's there.
PN447
So, look, I'll simplify this by saying, would you expect, even in that kind of scenario, that the gaming attendants would have some active role in addressing that issue, whether it be jointly, separately, the role would be played over and above doing payouts and taking tab tickets and keno tickets; would you agree with that?‑‑‑Yes. So, I would say possibly jointly, yes.
PN448
But he would have a - there's an expectation for him to engage in that role over and above his physical activities of tab, keno and payouts?‑‑‑Sure, jointly, as I said.
PN449
There is a - the local police conduct a liquor licensing squad down your way, don't they?‑‑‑Yes.
PN450
You are aware that the club has been visited on certain occasions by Liquor Licensing?‑‑‑Yes.
PN451
They're not rostered or - they are quite random in their visitation, aren't they?‑‑‑Yes.
PN452
Day, night, week day, weekend, it doesn't really matter?‑‑‑Mm-hm.
PN453
So if that Liquor Licensing turned up on an evening or a close shift is it not the responsibility of the change box attendant, as the only club employee, to engage and deal with the Liquor Licensing?‑‑‑Yes, but the contractors are aware of that as well.
PN454
Who holds the licence, the contractor or the club?‑‑‑The club.
PN455
And the only representative on shift would be the change box attendant?‑‑‑No, the contractor is contracted to also represent us to ‑ ‑ ‑
*** KYLE SHOOK XXN MR ACEV
PN456
He provides a service, doesn't he? He's contracted - there's a fee for service. He pays you money to run your bar?‑‑‑Yes.
PN457
That's what he does?‑‑‑Mm-hm.
PN458
If the police - is it not reasonable to assume that if the Liquor Licensing turn up they would be seeking out the club representative to engage with? Would that not be reasonable?‑‑‑Yes, but, I mean, getting back to the club as a whole and working in partnership with the contractor I wouldn't say it's exclusively the change box staff that would have to go get the licence and do that work.
PN459
So there's a contractor that has the bar service; correct?‑‑‑Yes.
PN460
He's not there till close, is he? He doesn't stay on premises until the closing time of the club every single shift every day of the week, does he?‑‑‑No, he employs staff to ‑ ‑ ‑
PN461
So he has people working for him?‑‑‑Yes.
PN462
As the contractor, as the appointed representative, if we can call him that, that you have identified he's not there all the time anyway; correct?‑‑‑Correct.
PN463
So the only person that's on shift until the end that the club closes is that club engaged employee in the change box?‑‑‑No, there's also employees there on behalf of the contractor.
PN464
The only person that's actually on shift until the end?‑‑‑The - yes, the only directly employed person, yes.
PN465
Can I just take you to your statement? At point 38, Mr Shook, you reference or you indicate you made notes in relation to a meeting that was held and the points that were discussed. On page 10, your second-last bullet point, now, you claim that these points were raised in the union letter of annexure F, so they are an expansion of what you say was discussed?‑‑‑Yes.
PN466
Is it your evidence that you say that as a result of that meeting both Mr Wooden and Mr Whitby totally capitulated and said, "Look, no, no, what you're doing is paying us correctly for what we do"; is that what you're claiming?‑‑‑No, I'm not.
*** KYLE SHOOK XXN MR ACEV
PN467
And, in fact, isn't it true they never said that to you? Sorry, yourself or anyone from the club saying, "Look, you're totally right", you know, "What were we thinking, what you're doing is 100 per cent correct by us". That was never stated to you personally?‑‑‑No, it wasn't.
PN468
Do you recall - has it been reported to you it was stated to anyone else at the club?‑‑‑No.
PN469
So that's never been a capitulation by either gentlemen?‑‑‑No. And I haven't claimed that either.
PN470
But clarifying - just, please?‑‑‑Okay.
PN471
So if I you could very quickly, Mr Shook, what responsibilities do you recognise are vested in a grade 3 change box attendant? What responsibilities are there? Can I help you out here: (1) I suppose responsibilities to handle the money truthfully and honestly?‑‑‑Mm-hm.
PN472
Is to conduct all transactions appropriately?‑‑‑Mm-hm.
PN473
To conduct themselves in a manner that's both polite, cordial, professional, okay?‑‑‑Yes.
PN474
In association with the execution of their duties?‑‑‑Yes.
PN475
But do you agree that dealing with unruly customers or complaints or issues raised by customers or having to deal with agencies like the licensing police are responsibilities well and above level 3. Do you not concede that?‑‑‑I believe addressing unruly patrons would still fall under the responsible service of alcohol.
PN476
What if that person is - I mean, if a person is simply loud, argumentative, they're not intoxicated, are they? Sorry, I withdraw that?‑‑‑They may not, yes.
PN477
Let's assume they were simply having a domestic dispute. They've had soda water all through dinner, no intoxication, but that's still - that is actually disruptive, exceptional circumstances. You'd expect the club employee to deal with that, wouldn't you?‑‑‑If they were in the gaming area, yes.
*** KYLE SHOOK XXN MR ACEV
PN478
So, okay, is there an established boundary then in this club? Is there a line down the middle as to what is gaming and what is bar? I mean, how do people know?‑‑‑It is - the way that the clubhouse is structured it is quite - they are segmented off.
PN479
Let's just go one bit further, given that you now claim that the club is somehow segmented, what formal instruction has been given to people like the change box attendant, "Well, okay, this is your part of the pie, anything over there" - what instruction, explanation, clarification has the club given to people like the change box attendant?‑‑‑My understanding is David Boag, our club secretary, met with the staff and gave them an outline of ‑ ‑ ‑
PN480
Sorry, can I stop you there?‑‑‑Yes.
PN481
What do you know personally, not just from Mr Boag, but what do you know? Have you been aware of or any document, formality, email, anything?‑‑‑Yes. Like I was saying, I think David Boag has communicated this to staff, yes.
PN482
But you don't recall seeing anything in writing; is that what you're saying?‑‑‑I believe he did give an outline in writing to the staff, yes. It's my understanding he did.
PN483
Are you saying you've seen such a document? Are you aware of such a document?‑‑‑Yes.
PN484
Is it attached to your statement?‑‑‑No.
PN485
Were you asked to attach it to your statement?‑‑‑Pardon?
PN486
Were you asked to attach it to your statement or did you seek to attach it to your statement?‑‑‑No, I didn't ask to. It didn't come up. I think maybe in my statement there was mention that the changes were communicated to the staff and that is in my statement.
PN487
The changes in respect of the contracting out, I think that's common ground. I'm talking specifically about the line of demarcation ‑ ‑ ‑?‑‑‑Duties.
PN488
‑ ‑ ‑if you like in the club as to what happens and what responsibilities go with what area depending on where the incident occurs. That's what I'm specifically talking about, Mr Shook?‑‑‑Yes. So ‑ ‑ ‑
*** KYLE SHOOK XXN MR ACEV
PN489
Are you saying there's a document that Mr Boag presented that outlines all that?‑‑‑That's my understanding, and that he met with the staff. I didn't meet with the staff in regards to this, but it's ‑ ‑ ‑
PN490
My question went to a document. So, I mean, can we specify firstly have you seen a document which in detail is an instruction or a clarification to club employed staff as to what responsibilities and action they have based on, let's say, where the exceptional circumstance occurs? Have you seen such a document?‑‑‑I have seen the document briefly, but I can't say I'm that familiar with it. I couldn't recite it, but my understanding from what David Boag has told me is that he did outline a document, and that it was posted in the change box of the new duties and he did go over and discuss with the staff what the changes entail and also it's my understanding that we asked the staff to let us know if they had any concerns about this, and, yes, because obviously they know their role slightly better than we do.
PN491
Your Honour, can I approach the witness? And for the benefit of - I'm showing him a copy of exhibit A, which I think is Mr Boag's statement. If I draw your attention to the last page, Mr Shook. Look at the last page. Is that a document you're referring to?‑‑‑I believe so, yes.
PN492
Is there anything on that document that says when it was prepared?‑‑‑No, there's not.
PN493
Is there anything on that document that shows when it's issued to staff?‑‑‑No.
PN494
Is there any indications on there to show how it was issued to staff?‑‑‑No.
PN495
Is there anything in that document that even remotely resembles what we've been discussing about responsibilities of dealing with issues of complaints based on certain sections of the club? Is there anything in there that you identify?‑‑‑Yes.
PN496
What does it say?‑‑‑Area of service, gaming and sports lounge tab. Well, you asked if it remotely ‑ ‑ ‑
PN497
No, the question I put to you was that remotely references the delineation and the levels of responsibility based on where incidents occur. It's quite a detailed and very specific instruction. Would you agree - sorry, apologise, please answer if you choose to?‑‑‑Well, I believe it remotely covers what we are discussing.
*** KYLE SHOOK XXN MR ACEV
PN498
Mr Shook, isn't it simply a fact that this is a change box attendant and guess what your job is? To service the gaming area. That's hardly remarkable, is it?‑‑‑I'm sorry, could you be more specific with the question?
PN499
The reference you just made in annexure A is nothing more than saying, "In my words, a change box attendant is to service the gaming area." That's it. That's all it says, really, isn't it?‑‑‑Yes, I would agree with that.
PN500
Nothing in annexure A makes any remote reference to what if any responsibilities an employee has in the change box in respect to exceptional circumstances, whether they be quarrelsome, intoxicated patrons, whether it be criminal damage; there is none of that in there, is there?‑‑‑No, there isn't.
PN501
Could I have that back, please?‑‑‑Sure.
PN502
Mr Shook, to claim that Mr Boag formally advised club employees of those very specific responsibilities and requirements as far as dealing with exceptional circumstances isn't correct, is it?‑‑‑It depends on how you define, "formally."
PN503
If this is the only document that exists as far as instruction to change box staff, there is clearly no reference to that kind of specific delineation of responsibility, is there?‑‑‑No, not in writing, no.
PN504
You would have been employed in September/October 2018. Being the finance manager, do you recall what if any conversation took place when the rate of pay was reduced for Mr Whitby?‑‑‑Sorry, if we discussed his rate of pay during the change?
PN505
From a level 5 to level 3 transition rate of pay - do you recall any meeting or conversation where Mr Whitby was told, "Listen, you were being paid this before the contracting out. We are now transferring you to this rate of pay and this duty description"?‑‑‑Not specifically, but because that position did exist before the transition and they were paid at a level 3 when they weren't an IC, had IC duties, as I think evidenced in their pay slips that were submitted.
PN506
Can we just go - thank you for that. Can we just go back before September/October 2018? The in-charge shifts - - -?‑‑‑Yes.
PN507
- - - they were remunerated level 5, weren't they?‑‑‑Yes.
*** KYLE SHOOK XXN MR ACEV
PN508
We've just spoken about a couple of scenarios, one being unruly patrons, complaints and issues and decisions about operational assessments and changes like sending a bus driver home. In the period when in-charge shifts were being rostered, would that IC rostered employee be responsible for making those decisions about addressing unruly or quarrelsome patrons, about dealing with liquor licensing? That would have been level 5 responsibilities, wouldn't they, back then?‑‑‑Yes, level 5 covers managing multiple areas in the club, yes; so the gaming area, the bistro and the bar areas.
PN509
But just those responsibilities themselves - you wouldn't expect a person who picks up glasses and cleans ash trays to deal with a quarrelsome or an argumentative patron, would you? If there is an IC supervisor on shift, they deal with it. That's their responsibility, being the most senior person on shift?‑‑‑Yes, but I still would hope that a level 3 employee would have some responsibility, especially if, you know, the person in charge is - we have a large clubhouse. If they're on the other side of the clubhouse, I wouldn't expect that a level 3 person would just not do anything.
PN510
A level 3 role, change box attendant, is quite - I won't say robotic but it certainly it is a process: they take money, they do payouts, they convert that money to bets, whether it be TAB, Kino. That's their bread-and-butter activity, correct?‑‑‑Yes, I would say their main responsibility, along with the responsible service of alcohol.
PN511
The requirement or the expectation by the club, and the responsibility of the club, on them, to evaluate and determine actions, based on exceptional circumstances, is beyond a level 3 rate of responsibility, is it not?‑‑‑Sorry, could you repeat the question?
PN512
The expectation by the club and the responsibility on that employee to evaluate and take decisive action in relation to exceptional circumstances is beyond a level 3 grade. Do you agree?‑‑‑Well, certainly if there was a level 5 in charge person that it would be their responsibility to make that call above a level 3 employee, certainly.
PN513
Because that would be an appropriate level for those things to be dealt with at; level 5?‑‑‑Yes, but again, I just don't believe that a level 3 has no responsibility.
PN514
I didn't say they didn't. I just said that they are beyond a level 3 grade?‑‑‑Well, it's hard to say without getting into a specific - - -
PN515
I've nothing further, your Honour.
*** KYLE SHOOK XXN MR ACEV
PN516
THE DEPUTY PRESIDENT: Mr Shook, are the contractors in the bar and the bistro the same contract?‑‑‑Yes.
PN517
They're the same contractors?‑‑‑Yes.
PN518
Have you ever been contacted when out of hours - out of your hours - by anyone from the contractors?‑‑‑Yes, your Honour.
PN519
How often would that happen?‑‑‑Maybe once every two or three months and it really would only have to do with the point of sale system, because the club owns that and I guess manages it, and the contractor is just using it and I haven't had any calls lately, but certainly when they started, there was more of a learning curve to learn the system. But I don't think I've received any calls in the last few months.
PN520
What about the employee who is on the closed shift and the weekend shifts? How often would that happen?‑‑‑How often would they ring me?
PN521
Yes?‑‑‑Less often - since we've had the restructure, I can't say definitively but possibly twice; at least once.
PN522
Okay, and in your statement at 20 you refer to the overall savings in administration wages of $100,000 per annum. Do I take that to mean that is - that does not include any savings in respect to the bar and the bistro contractors?‑‑‑Yes, your Honour - it's the combination of not having a general manager, as well as the reduction in my hours.
PN523
So do you know what the savings were in respect to the change to contracts for the bar and the bistro?‑‑‑I would say that the last financial year, ending in June 2018, we would have had losses in the bistro of over $110,000, and the bar made a profit but a lot of the clubhouse expenses such as electricity, insurance and water, weren't really allocated to the bar. So I can say that the club's - I guess to look at it holistically, the club would have lost in the financial year ending June 2018 over $900,000. This financial year that's just gone, ending in June 2019, we would have lost just over $300,000 so that's a change of $600,000.
PN524
What is the budgeted projection for the next financial year?‑‑‑A similar loss of around $300,000 inclusive of depreciation and everting.
*** KYLE SHOOK XXN MR ACEV
PN525
How that is that loss being managed?‑‑‑Well, for us, because we're running low on cash we were really trying to manage - be cash-flow positive and we believe we are with the new structure. So this financial year that we've just had, we still had two months of the old structure, where we were making significant losses in the bistro and the bar as well, because the bar is quite seasonal. So June, we still had the bar and bistro in July and August and we would have had losses of over 100 k in total, each of those months. Yes, we are revisiting the budget and I think that will be a bit better than the $300,000 loss that I've just told you but I try to budget conservatively so that hopefully we beat budget.
PN526
Is the finances serviced by loans from a bank or somewhere else?‑‑‑We do have some loans but we also have term deposits in cash as well.
PN527
How many members are there of the club?‑‑‑I believe we have around 300 golfing members and maybe 500 social members.
PN528
Has that improved over the last period or - - -?‑‑‑Yes - - -
PN529
- - - (Indistinct) gone down?‑‑‑I believe golfing membership has gone up. Well, I'll say the board has made a decision, a strategic decision to have the golf course in very good condition and we have seen an increase in visitor green fees because of it so although it - that's been building over a few years, especially since we got a new irrigation system in - I think it was 2017. Really, yes, I think we are moving in the right direction.
PN530
Thank you. Ms Pike.
PN531
MS PIKE: Nothing further, your Honour.
THE DEPUTY PRESIDENT: Thank you, Mr Shook; you may step down. You are released from your oath?‑‑‑Thank you, your Honour.
<THE WITNESS WITHDREW [12.28 PM]
PN533
THE DEPUTY PRESIDENT: That completes your evidentiary case, Ms Pike?
PN534
MS PIKE: Yes, it does, your Honour.
PN535
THE DEPUTY PRESIDENT: I see that the parties have filed written submissions in the matter. Are we content to proceed now with anything you wish to say orally?
*** KYLE SHOOK XXN MR ACEV
PN536
MR ACEV: I would like to make a brief statement.
PN537
THE DEPUTY PRESIDENT: Sure.
PN538
MR ACEV: Supplemental, your Honour - the applicant's submissions have recommended the Commission answering this dispute by a series of question. We don't move away from that proposed procedure. For all the evidence, it's quite a simple set of questions that we have posed in resolution of this matter. What we have heard, certainly consistently throughout both sets of witnesses, is that there are responsibilities that have been required, expected and engaged in beyond those which have been traditionally or expected to be applied as a level 3. The essence of this dispute has not changed from when it commenced; that is, there was a distinct polarisation between the parties as to what these people do and more importantly, what remuneration should be appropriately paid.
PN539
We do rely and affirm upon our existing submissions but we certainly recommend to the Commission that the evidence that has been given, certainly by the applicant, should be preferred and factually correct information. That information has been given consistently and without waiver, where the respondent's evidence has been based on recollection and belief to a large degree and indeed, we don't accept that there is an ability to delegate or excise away from the responsibility of the sole employee on duty what is expected and required of that employee for and on behalf of his employer - not the contractor but his employer and that's an inherent relationship that we see the club expects to be exercised by the employee and one that has observed and which we say are remunerated incorrectly. If the Commission pleases.
PN540
THE DEPUTY PRESIDENT: Well, I just want to ask you about these questions.
PN541
MR ACEV: Certainly.
PN542
THE DEPUTY PRESIDENT: Because there's been a lot of discussion about level 3 and five that your proposition in answer to question four is that the employee should be classified a level 4.
PN543
MR ACEV: Correct, your Honour. We don't shoot for the stars in this application. There is an inherent list of indicative tasks in the agreement. They're not exhausted. They're indicative. But we say - all say in interpreting the agreement there is also that stepping up of responsibility that is associated with those higher grades. We don't profess that a person doing TAB and Keno in the club is to be a grade five. But we say that the employee exercises greater responsibility than those expected inherent in a grade three.
PN544
Now despite the fact that the agreement doesn't say every single subtle variation - it's not an exhaustive list - so we say it is indicative. What is indicative is that they are exercising responsibilities above that level 3 and we say it would not have been appropriate. So, okay, if it is slightly above three it must be a four. Rather than the list of duties are duties. We're talking about predominantly a combination of duties and responsibilities and more importantly the expectation of the employer of those responsibilities.
PN545
The responsibilities, your Honour, are not a cap that get put on and off for the last hour. We say they are a coat as put on at the time of starting the shift and is worn the entire way through. Whether they do or don't the expectation and the potential for that responsibility is upon their shoulders from the time they clock on. Otherwise, for example, a maintenance engineer will only get paid if they fix machinery. But if they're sitting idle on shift and nothing breaks down, "Oh, we don't get that money. You get something less." Well, no - the potential is placed on them from the time they start to do certain things or on behalf of their employer which we say are in excess of a level 3.
PN546
We say it would not be unreasonable to recognise the responsibilities being a grade higher, although not specifically written in the agreement say, "This responsibility is for dealing with onerous employees." And we say the context and the essence of that level 4 is, in fact, reflective of their response but that that escalates as you go up the ladder from one, two, three, four, five, six - or that is six - up to a level 5 is paid a supervisor.
PN547
We don't shy away from level 5, your Honour, but we say as a reasonable and practical solution to the problem a level 4 will not be inappropriate as far as a reclassification - well, sorry a correct classification of the duties and responsibilities of the employees named.
PN548
THE DEPUTY PRESIDENT: And are the consequences if you are successful, such as to require retrospective payment?
PN549
MR ACEV: Well, your Honour, if that - if the duties were consistent then I'd have to take instruction. Obviously this is not the appropriate jurisdictions to talk about - - -
PN550
THE DEPUTY PRESIDENT: Quite right.
PN551
MR ACEV: And we don't expect an order for back-payment but it would not be - - -
PN552
THE DEPUTY PRESIDENT: Well, you won't get it.
PN553
MR ACEV: Despite how hard we ask.
PN554
THE DEPUTY PRESIDENT: Even if you're right.
PN555
MR ACEV: But you're right, your Honour, if at any - and it would not be unheard of to do so, because if the finding was that these employees should have been appropriately classified something else higher they're right to claim that. We pursue that as a right - if it indeed arose under the decision.
PN556
THE DEPUTY PRESIDENT: But back to October last year?
PN557
MR ACEV: That would be the appropriate date because and then we would say that the changes were - it's a pivotal date which we think was recognised by all parties here.
PN558
THE DEPUTY PRESIDENT: Thank you. Ms Pike?
PN559
MS PIKE: Your Honour, the respondent has provided written submissions in relation to this dispute. We do rely on those in relation to our position. I don't intend to repeat those here today but just briefly in reiterating the respondent's position, the club is a relatively small business. It's located in Merimbula. It has less than 20 employees due in part to its financial position. Two significant restructures have occurred in 2015, June 2015 and October 2018 which is why - which is what's led us here to today.
PN560
Prior to October 2018 there was a full-time bar manager and there was support supervisors who performed in charge shifts which we've heard about today. Such staff are rostered to oversee the entire operation of the club's premises on each shift, including the operation of the bar, the bistro and the gaming departments.
PN561
Since the restructure has taken place there's no longer a need for a manager. In fact, the bar manager's position was made redundant in September 2018. The bar and the bistro are now managed entirely by the club's contractor. The club no longer engages staff that work in the bar and the bistro, therefore all club operational staff are only required to perform duties in the club's gaming facility which are limited to poker machines, TAB and Keno and related tasks with those facilities.
PN562
As a result of the restructure when the bar manager was made redundant staff that performed the supervisory in charge shifts were advised that their duties would be limited to change block shifts moving forward, servicing patrons in the club's gaming offerings. We say this communication to staff was evident in correspondence that was issued to club employees on the 9th and 30 August 2018 and in that regard we do refer to annexures "B" and "C" of Kyle Shook's statement.
PN563
Now the change block's role is an independent role. It generally only requires one person to be rostered for each shift. Other staff may be rostered in other departments of the club at the same time. So golf ground staff are generally rostered early in the morning to finish mid-afternoon. Administration staff are generally rostered between nine and five during the day. Casual bus drivers are rostered in the afternoon. But there is no manager that overseas staff in each department. There are general club management.
PN564
Mr Shook, as the finance manager, and David Boag is the voluntary club Secretary are general club management. There are no management for the other departments within the club. Changebox staff are classified and are paid as level 3 in accordance with the enterprise agreement because they perform tasks and duties related to the provision of gaming facilities in accordance with the level 3 classification in the enterprise agreements.
PN565
I do refer to the annexure - - -
PN566
THE DEPUTY PRESIDENT: But you well concede that Mr Boag's evidence is that they do do other things outside of that indicative list?
PN567
MS PIKE: From time to time certainly. Annexure "A" of David Boag's statement is his evidence of the general duties performed by changebox. We do concede that changebox staff have other duties where they may be required to unlock the club's premises, set up the gaming department for the day's trade. They may be required to close and lock the club's premises during late night shifts. For such time that is spent reconciling money, locking or unlocking the clubhouse, and those related duties, the club employees are paid at a level 5 rate of pay in recognition that they are duties beyond the level 3 rate of pay under the enterprise agreement.
PN568
That payment is made in accordance with clause 13 of the club's enterprise agreement which is the higher duties clause. The higher duties clause says that where an employee works for two hours or less at a higher duty than they're paid for the time spent working at that higher duty at the higher rate of pay, when the time spent working at the higher duty is more than two hours in length then the duration of the shift is paid at the higher rate of pay.
PN569
THE DEPUTY PRESIDENT: But that only demonstrates how arbitrary that is because if you were doing a task that in the last hour you wouldn't be performing those tasks presumably for the entire hour.
PN570
MS PIKE: That's correct.
PN571
THE DEPUTY PRESIDENT: But you get paid for the full hour which is contrary to the agreement.
PN572
MS PIKE: It's an indicative timeframe. I understand.
PN573
THE DEPUTY PRESIDENT: Yes. Well, I'm just pointing out to you that this is not black and white.
PN574
MS PIKE: It's I guess the hour that's spent performing closing duties and the 90 minutes that are spent performing opening duties are the indicative timeframes, the feedback that's been provided by the employees performing those duties.
PN575
THE DEPUTY PRESIDENT: We're not talking about opening duties here are we?
PN576
MS PIKE: I don't think the opening duties are in contest here. But we do say that opening duties are paid at the higher rate of pay in recognition that they are beyond the tasks of a level 3 employee.
PN577
THE DEPUTY PRESIDENT: We'll get to that.
PN578
MS PIKE: Anyone who works on a weekend is required to open the club. So I believe it was Mr Wooden.
PN579
THE DEPUTY PRESIDENT: Well, it's only two employees, isn't it?
PN580
MS PIKE: That's correct. Now the union says that changebox's employees regularly perform the following duties. They assess the trade level and determine the club's close time if that's earlier or later than the proposed closing time. They advise the contracted bar staff of such a decision and instruct them to prepare and cease service. They formally announce the impending close time to club patrons. They assess the demand for patron conveyance and determining when the casual courtesy bus drivers end their shift. So they're responsible for accessing the safe key for the activation of the club's security system. They're responsible for addressing patron complaints and they have responsibility for dealing with uncooperative or unruly patrons.
PN581
So this is the same list of seven duties that's been presented by the union today as their evidence has been presented by the employees as their evidence. The same list as what was provided by the union in conversation earlier this year - April/May of this year in relation to this dispute.
PN582
It's the respondent's submission that these duties relate to tasks performed by the change of employees during the closing of the club. The duties required for the closing of the club for which the changebox employees are paid for the same level 5 rate of pay to perform.
PN583
THE DEPUTY PRESIDENT: Well, maybe some of them are but not all of them.
PN584
MS PIKE: Correct. We have shown - we believe that we have shown the Commission the relevant duties are performed in the hour before closing the club's premises. As five of those seven duties relate to ceasing operation, reconciling money and locking the premises.
PN585
In relation to fielding customer complaints or dealing with customer issues we deny that that requirement should be a consideration in classifying the employees. The evidence of Mr Wooden this morning was that it doesn't - it certainly doesn't happen every day as time to time the same evidence was provided by Mr Whitby. These are not regular issues that they're dealing with. They occur from time to time.
PN586
In our submission an employee or any employee in this industry in a club or in this industry shouldn't need to be classified as a supervisor or a manager to deal with a customer complaint or an issue that might arise during a shift.
PN587
It was suggested by the union that at any stage where a complaint or an issue arises that a club employee is required to assess and determine a course of action the example that was given was a domestic dispute or domestic disturbance. Mr Shook even indicated that the changebox staff member might be required to assess the seriousness of the issue whether they can resolve it or whether they call the police in that particular situation.
PN588
It was suggested then by the union that any such action by an employee is beyond the duties of a level 3 changebox employee. We reject that submission on the basis that accepting that proposal, accepting that the minutes that an employee is required to deal with a patron's disturbance or issue means that they should be considered a supervisor or paid at a supervisor rate of pay.
PN589
We think that that would reflect on this industry and other industries to say that any time when a complaint is received that you're not equipped to deal with that because you're not paid as a supervisor level. We think we have broader ramifications, certainly for this club and for other clubs within the industry.
PN590
Let's just say you're walking into a retail shop - a small retail shop that has one person working on the counter and you make a complaint about a piece of clothing that you've bought your expectation is that a person is equipped to deal with that complaint at the time at which you make that complaint and that employee is not necessarily a supervisor. And that is it's just because that the only person within that retail premise and they've been given a complaint that they're required to deal with. It doesn't automatically make them a supervisor, and it's our submission that to make the finding that anyone who deals with an employee - - -
PN591
THE DEPUTY PRESIDENT: That's how the club used to deal with it.
PN592
MS PIKE: Where they had supervisors.
PN593
THE DEPUTY PRESIDENT: Yes.
PN594
MS PIKE: In charge. I understand.
PN595
THE DEPUTY PRESIDENT: Exactly. So if it didn't work then why does it not work now?
PN596
MS PIKE: The evidence of Mr Shook and, I believe of Mr Boag was that employees still had some responsibility. You know? Certain complaints were required to be escalated to a supervisor but their expectation was that an employee who fields a complaint would have some responsibility to deal with that issue in the first instance. You can't say "Pause that. I'm going to go and get my manager. We'll be back in 10 minutes." It doesn't always work like that. So to say that a level 3 employee is not equipped or has no problem solving skills and isn't paid to apply any sort of problem-solving skills in dealing with a complaint or an issue, I think is underselling them as - - -
PN597
THE DEPUTY PRESIDENT: Well, seeing as we're all quoting examples, how often do all of us - well, maybe from time to time - either on the phone or in a retail store has an issue with what is told to them by a junior employee and they say that and you or I would say, "I want to talk to a manager." There isn't any.
PN598
MS PIKE: No, but there are processes in place. There are managers at the club. As Mr Shook indicated there is no issue that we believe can't be dealt with either by emergency services or by escalating it to club management to be dealt with on the following week days, which is - it's certainly our response where matters are required to be escalated. It was Mr Shook's evidence that he has been called on weekends to deal with issues that arise in the club. It was also Mr Boag's evidence that there is an incident book where any incident that needed to be escalated are provided in the incident book and they're dealt with by club management on the following work day.
PN599
THE DEPUTY PRESIDENT: Well, that's very nice, isn't it? You just write it down.
PN600
MS PIKE: If it needs to be escalated there are processes in place and we say that the employees are aware of those processes. Your Honour, we say that the union are asking that the Commission make a finding that the respondent's changebox employees be paid at a supervisor rate of pay for the duration of all shifts where they're rostered to - - -
PN601
THE DEPUTY PRESIDENT: Is level 4 a supervisor rate of pay?
PN602
MS PIKE: Look, I would say it's not. I would say level 5 is generally a supervisor rate of pay.
PN603
THE DEPUTY PRESIDENT: Well, that's not - were being sought.
PN604
MS PIKE: They're certainly indicating that the duties are required of - the duties that they're suggesting that the employees are required to perform are that of a supervisor and level 4 rate of pay has been 'picked', I guess, as that indicator. Certainly the seven indicative duties that were provided wee indicative - we would say of the supervisor. Given the majority of those duties fell in the times when those employees were paid at a level 5 rate of pay because they are substantially higher duties.
PN605
The union made a request of the Commission that they find that the employees should be paid a higher rate of pay for the entire duration of their shift but, in our submission, we say that the union's written submission says that employees should be classified as level 4 under the club's enterprise agreement but they have presented no evidence of duties that are relevant to a level 4 classification. The only duties that we have discussed today are level 3 and level 5. There's been no evidence - there's certainly been no reference to the duties that are contained within the level 4 classification definition.
PN606
THE DEPUTY PRESIDENT: But Mr Boag acknowledged that even those ones that if there's seven that were performed during - may be performed during the course of other than the last hour were a higher - were at a higher level.
PN607
MS PIKE: Mr Boag's evidence - Mr Boag was taken to classification level 3 and asked if there was anything in classification level 3 to indicate that employees dealing with customer complaints or issues arising from club patronage - - -
PN608
THE DEPUTY PRESIDENT: That's because they're indicative.
PN609
MS PIKE: Well, he was asked if they were - were provided in the classification level 3. I then took him to levels four and levels five and - - -
PN610
THE DEPUTY PRESIDENT: And they're not there either.
PN611
MS PIKE: They're not either, no.
PN612
THE DEPUTY PRESIDENT: Which is exactly the point.
PN613
MS PIKE: Well, I guess that's - I would say that supports - - -
PN614
THE DEPUTY PRESIDENT: We're looking at practicalities here.
PN615
MS PIKE: I would say, your Honour, that that supports our point. If someone attends premises fit to work, they have an RSA, they have an RCG. They're able to attend patrons, pay out gaming machines. They have an area of the club that they have some responsibility for. We know from the memo that was issued to staff that it's limited to the TAB and the gaming lounge - the sports gaming lounge - and we would say that if any issues do arise within that area that someone equipped with an RSA and an RCG should be able to deal with those issues. However, at the point where those issues are required to be escalated that there are appropriate measures in place for those to be escalated. And whether that is calling the police, whether that's calling Kyle Shook, whether it's calling David Boag or writing it in an incident report, we say that those measures are in place.
PN616
We say that the duties of - the union has failed to show in our submission that outside of the final hour of a closing shift that there are regular occurrences that mean that that employee should be paid at a level 4 rate of pay. The evidence of both employees was that - there are not customer issues or complaints on a daily basis. There had been no evidence to show that it's regular. It's systematic in the sense that an employee is required to deal with them on any sort of regular basis which would mean that they should be paid at a higher rate of pay.
PN617
Certainly, you know, if there were evidence that it was a daily occurrence or a weekly occurrence. There's nothing regular about dealing with customer's complaints or patron's issues to suggest that employees should all be paid at a higher rate of pay for the duration of a shift just in case something might arise.
PN618
THE DEPUTY PRESIDENT: Well, it's not all employees. I think you're gilding the lily a little there, Ms Pike. One employee.
PN619
MS PIKE: One employee per shift. Seven shifts per week. Seven closing shifts per week. So there's multiple employees that perform those shifts.
PN620
THE DEPUTY PRESIDENT: There's two.
PN621
MS PIKE: I believe there's four.
PN622
THE DEPUTY PRESIDENT: Is there?
PN623
MR ACEV: I have - - -
PN624
THE DEPUTY PRESIDENT: Well, that's the first time I've heard of four.
PN625
MR ACEV: These are the only two affected employees the union has on its - that's the application, your Honour.
PN626
THE DEPUTY PRESIDENT: Well, no one's told me it's four.
PN627
MS PIKE: Look, I believe that there are other employees engaged by the club.
PN628
THE DEPUTY PRESIDENT: There's nowhere in the evidence that it talks about four. You might get some instructions.
PN629
MR ACEV: If I may?
PN630
THE DEPUTY PRESIDENT: No. I think Ms Pike should get some instructions.
PN631
MS PIKE: The evidence of Kyle Shook, on page four, paragraph 19 where he talks about the staff who remain employed at the golf club.
PN632
THE DEPUTY PRESIDENT: Four permanent part-time and casual changebox staff. Is that what you say it is?
PN633
MS PIKE: That's it.
PN634
THE DEPUTY PRESIDENT: So there's two others?
PN635
MS PIKE: That's correct.
PN636
THE DEPUTY PRESIDENT: All right.
PN637
MS PIKE: So we say that - look, it's four potential employees across seven potential shifts per week. To say that - you know - we've used some examples here today that - - -
PN638
THE DEPUTY PRESIDENT: So that's less than one permanent weekly employee. Yes? Seven shifts.
PN639
MS PIKE: Seven shifts. Ranging from 10 am to - - -
PN640
THE DEPUTY PRESIDENT: What are the hours of these four?
PN641
MS PIKE: So they cover shifts from 10 am to close on weekdays and 9 am to close on weekends.
PN642
THE DEPUTY PRESIDENT: Right.
PN643
MS PIKE: So we say that those - you know - they're full days of work. 10 am till close.
PN644
THE DEPUTY PRESIDENT: So one of the four. There's not two on it at any one time.
PN645
MS PIKE: No.
PN646
THE DEPUTY PRESIDENT: So one of the four is on seven shifts. Is that right?
PN647
MS PIKE: Yes.
PN648
THE DEPUTY PRESIDENT: So less than a week's work.
PN649
MS PIKE: Yes. Yes, I understand that they're part time and casual.
PN650
THE DEPUTY PRESIDENT: Yes.
PN651
MS PIKE: I understand that one of the employees has administration duties as well. But we say that - you know - perhaps we had some creative examples presented today and what might occur. What could occur - you know - what - you know there might be a domestic disturbance or you might have - you know - someone banging on the bar or you might have - you know - whatever it is.
PN652
THE DEPUTY PRESIDENT: I could give you a hundred examples of what occurs in a club and a bar. Not that I'm there frequently.
PN653
MS PIKE: I could probably top them your Honour.
PN654
THE DEPUTY PRESIDENT: You probably could. Two people fighting about whose shout it is.
PN655
MS PIKE: But the point I'm trying to make is that these are just examples. There was no evidence of actual occurrences of these.
PN656
THE DEPUTY PRESIDENT: Well, this isn't a kindergarten.
PN657
MS PIKE: I understand but there's no actual evidence of how many issues have arisen that have required.
PN658
THE DEPUTY PRESIDENT: Well, I intend to take judicial notice of what I know to be the case in the club industry.
PN659
MS PIKE: And look we say that, you know, the examples are somewhat creative but we don't believe that they're indicative of what happens day to day in a club. We say, yes, there certainly is the potential for that to arise but we don't believe that should be the determining factor in suggesting that the employees are classified as a level 4 instead of their current classification level 3. We say that - we think that the Commission should dismiss the matter on the basis that changebox employees are currently engaged at level 3 under the enterprise agreement. When they perform higher duties, when they perform the opening duties, when they're performing closing duties - they're paid a level 5 rate of pay for the time that we believe that they spend performing those duties and we believe that's the correct application of the rates of pay and the classifications under the Club's enterprise agreement.
PN660
THE DEPUTY PRESIDENT: Well, Ms Pike I hesitate to raise this matter because it hasn't been raised in the proceedings but the more I hear, the more I'm troubled by it. And that is that during the close there is closing off of the safe, presumably, and closing the premises and there's one. I just wonder whether there are some occupational health and safety issues to that. But I'm not suggesting you should pay people because of dangerous situations but it does raise a concern.
PN661
MS PIKE: I think I can answer your Honour's point. Referencing the evidence of Mr Shook and Mr Boag, the employees are never on the premises alone. They don't leave the premises alone. They leave with the other staff from the catering - the catering company.
PN662
THE DEPUTY PRESIDENT: But they're closing the door so there's no one inside.
PN663
MS PIKE: No. But they're not, themselves, as a single person closing the door.
PN664
THE DEPUTY PRESIDENT: Well, if you're making that assumption I would have thought they'd be out - contracted to be out the door as quick as lightning and then the club employee would be there making sure everything was in order on their own.
PN665
MS PIKE: Look, it's my instruction that they're never on their own.
PN666
THE DEPUTY PRESIDENT: What? Do the contractors wait while they shut the door, do they?
PN667
MS PIKE: Yes.
PN668
THE DEPUTY PRESIDENT: Well, there's no evidence of that. And I can't imagine a contractor employee taking any responsibility in that respect either. It's not their premises. Anyway I don't think the matter will turn on that point but I would ask you to raise the matter with the club in that context because it is a little troubling and if anything was to happen there might be some liability exposed.
PN669
MS PIKE: Well, I will have a conversation with the club but I am assured my instructions were that at no time is the employee to leave the premises on their own. It's a combined effort to lock the club's premises. You heard the evidence from - - -
PN670
THE DEPUTY PRESIDENT: Why would the contractor care?
PN671
MS PIKE: Because their money is also in the safe. They've still got property on the premises.
PN672
THE DEPUTY PRESIDENT: And they have a supervisor. So does the supervisor stay?
PN673
MS PIKE: I don't have that information.
PN674
THE DEPUTY PRESIDENT: So you don't know that information.
PN675
MS PIKE: No.
PN676
THE DEPUTY PRESIDENT: All right. Thank you.
PN677
MS PIKE: Thank you.
PN678
THE DEPUTY PRESIDENT: Anything in reply Mr Acev?
PN679
MR ACEV: Just a very quick point, your Honour. The reality versus the fanciful submission that if anything happens we just write it down in a book and it gets dealt with the next day. These are real employees with real responsibilities - not duties - the word 'responsibilities' hasn't been used by the respondent. These are responsibilities that these both men have attested to. They don't wait. You can't tell me that I can pause a dispute and write it in the book and it'll be dealt with tomorrow morning and - it's a reality, it's a real time issue, it's a real job, with real consequences and expectations. We affirm our position, your Honour. We say these gentlemen do perform duties and responsibilities that exceed their current remuneration and they should be recognised appropriately. If the Commission pleases.
PN680
THE DEPUTY PRESIDENT: Thank you. I propose to reserve my decision in the matter. I thank you both for your helpful submissions and the efficient conduct of the proceedings as I have cause to comment on many occasions - well, not - less occasions that I would like, it's a pleasure to have competent and well-prepared advocates appearing before me, rather than unrepresented litigants.
PN681
MR ACEV: Thank you.
PN682
THE DEPUTY PRESIDENT: I'll now adjourn.
ADJOURNED INDEFINITELY [12.58 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
SCOTT CAMERON WOODEN, AFFIRMED................................................... PN16
EXAMINATION-IN-CHIEF BY MR ACEV...................................................... PN16
EXHIBIT #1 STATEMENT OF SCOTT CAMERON WOODEN DATED 01/07/2019 PN29
EXHIBIT #2 REPLY STATEMENT OF SCOTT CAMERON WOODEN DATED 30/07/2019................................................................................................................................... PN29
CROSS-EXAMINATION BY MS PIKE.............................................................. PN31
RE-EXAMINATION BY MR ACEV................................................................. PN103
THE WITNESS WITHDREW............................................................................ PN139
MAXWELL WHITBY, AFFIRMED................................................................. PN148
EXAMINATION-IN-CHIEF BY MR ACEV.................................................... PN148
EXHIBIT #3 FIRST WITNESS STATEMENT OF ERNEST MAXWELL WHITBY DATED 01/07/2019............................................................................................................... PN155
EXHIBIT #4 REPLY STATEMENT OF ERNEST MAXWELL WHITBY DATED 30/07/2019................................................................................................................................. PN162
CROSS-EXAMINATION BY MS PIKE............................................................ PN163
THE WITNESS WITHDREW............................................................................ PN255
DAVID JAMES BOAG, SWORN....................................................................... PN260
EXAMINATION-IN-CHIEF BY MS PIKE....................................................... PN260
EXHIBIT #A WITNESS STATEMENT OF DAVID BOAG DATED 21/07/2019 PLUS ANNEXURE.......................................................................................................... PN269
CROSS-EXAMINATION BY MR ACEV......................................................... PN270
RE-EXAMINATION BY MS PIKE................................................................... PN373
THE WITNESS WITHDREW............................................................................ PN388
KYLE SHOOK, AFFIRMED.............................................................................. PN393
EXAMINATION-IN-CHIEF BY MS PIKE....................................................... PN393
EXHIBIT #B WITNESS STATEMENT OF KYLE SHOOK DATED 22/07/2019 PN403
CROSS-EXAMINATION BY MR ACEV......................................................... PN404
THE WITNESS WITHDREW............................................................................ PN532
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