AG2019/1416, Transcript of Proceedings [2019] FWCTrans 288 (21 October 2019)

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PN618

THE DEPUTY PRESIDENT: Thank you.

PN619

MR BROWN: Brown, initial B, continuing my appearance on behalf of the applicant. Deputy President, thank you for the opportunity to start a little bit earlier today. It will assist the advocates. I call the first witness on behalf of the applicant, Mr Talal Aslam, A-s-l-a-m.

PN620

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

PN621

MR ASLAM: Talal Aslam, and (address supplied).

PN622

THE ASSOCIATE: Thank you. It is my understanding that you wish to give an affirmation in the proceedings today, is that correct?

PN623

MR ASLAM: Yes.

PN624

THE ASSOCIATE: Thank you.

<TALAL ASLAM, AFFIRMED [9.40 AM]

EXAMINATION-IN-CHIEF BY MR BROWN [9.40 AM]

PN625

MR BROWN: Mr Aslam, could you state for the purposes of the record your full name, please?‑‑‑Mohammed Talal Aslam.

PN626

And your position?‑‑‑State manufacturing manager, Victoria.

PN627

Thank you. You have made a statement in these proceedings, have you, Mr Aslam?‑‑‑Yes.

PN628

Do you have a copy of that statement with you?‑‑‑Yes, I do.

PN629

It is a statement that is made on 6 September 2019 and has 18 paragraphs, is that correct?‑‑‑Yes, it is correct.

*** TALAL ASLAM XN MR BROWN

PN630

Before I seek to have this statement made an exhibit in the proceedings, is there any part of that statement, sir, that you would like to change?‑‑‑Yes, I do.

PN631

Could you advise as to what paragraph and - - -?‑‑‑Yes, paragraph 16B.

PN632

Sir, I am taking you to paragraph 16B. That currently reads, "Assist in the provision of on-the-job training." First of all, I do seek to amend. That is my first application before we do anything. Sir, how do you wish to amend that?‑‑‑We are not required to do on-the-job training.

PN633

Your request is to delete 16B and change it to, "Not required" - could you say it one more time?‑‑‑"Not required to do on-the-job training."

PN634

Deputy President, on the basis that we seek to amend the statement as per the request of the witness, we would seek that this statement as amended by the witness be made an exhibit in the proceedings.

PN635

THE DEPUTY PRESIDENT: Yes. Any objections?

PN636

MS BEYNON: No.

PN637

THE DEPUTY PRESIDENT: Thank you. That will be exhibit A1.

EXHIBIT #A1 STATEMENT OF TALAL ASLAM DATED 06/09/2019 AS AMENDED

PN638

MR BROWN: In that case, Deputy President, there are no questions to this witness in his evidence-in-chief.

CROSS-EXAMINATION BY MS BEYNON [9.42 AM]

PN639

MS BEYNON: Thank you. Thank you, Deputy President, and thank you, Mr Aslam. You have got a copy of your statement?‑‑‑Yes, I do.

PN640

Do you have a copy of Ms Minhas's statement?‑‑‑No, I don't have a copy.

PN641

Or a copy of Ms Park's statement?

*** TALAL ASLAM XXN MS BEYNON

PN642

MR BROWN: I can arrange for a copy of Ms Park's statement to be handed to him via the associate. As for Ms Minhas, no. If the document is going to be given to the witness that has annotations on it, can I have a look at it before it is given to the witness?

PN643

MS BEYNON: That's okay. We'll start with your statement, Mr Aslam. At paragraph 7 of your statement it says that you are familiar with the production requirements and machinery in the standalone Victorian sites, and you are also familiar with recruitment of those employees?‑‑‑Yes.

PN644

Does this mean that you are involved with recruiting the employees?‑‑‑Yes.

PN645

Yes, so you are involved with them. What is your involvement?‑‑‑Hiring them.

PN646

You hire them?‑‑‑Yes.

PN647

As part of the recruitment process, do you undertake to find out whether those employees have prior experience in food manufacturing?‑‑‑We go through with their resumes, but it is not required.

PN648

Do you undertake to find out whether or not they have prior experience in food - - -?‑‑‑No.

PN649

You don't find out? Okay. Do you ask them - - -

PN650

MR BROWN: No, no. Undertake to find out, or find out. Which one is it? You're confusing the witness. There is a difference between the two.

PN651

MS BEYNON: He answered the question.

PN652

THE DEPUTY PRESIDENT: I think the same thing was meant, was it?

PN653

MR BROWN: I'm not asking for ruling on it. It's in fairness to the witness. The question shifted gears from undertake to take.

PN654

MS BEYNON: Mr Aslam, do you find out whether or not recruits have prior food manufacturing experience?‑‑‑In their resume, yes.

*** TALAL ASLAM XXN MS BEYNON

PN655

In their resume?‑‑‑Yes.

PN656

It will say whether or not they have food manufacturing experience?‑‑‑Yes.

PN657

Yes, all right.

PN658

THE DEPUTY PRESIDENT: Sorry, Ms Beynon, my associate has got a clean copy of - - -

PN659

MS BEYNON: Ms Minhas's?

PN660

THE DEPUTY PRESIDENT: Minhas's. But that is my copy, so my other copy is a working copy. So we will just have to get - - -

PN661

MS BEYNON: Ms Minhas has got the - sorry, she has got the extra folder. I'll - - -

PN662

THE DEPUTY PRESIDENT: So when we find her, we will find her and sort it out.

PN663

MS BEYNON: We'll find her, yes.

PN664

THE DEPUTY PRESIDENT: Thank you.

PN665

MS BEYNON: In their resumes you see whether they have previous experience in food manufacturing?‑‑‑Yes.

PN666

Of the people you recruit, do you find that there are people with previous experience in food manufacturing?

*** TALAL ASLAM XXN MS BEYNON

PN667

MR BROWN: I object. The union only leads evidence on this point in relation to one classification, and that classification is effectively Krispy Crew, and this will come up a number of times today. The union's evidence in this second stage of the proceedings, we'll call it the BOOT evidence, goes only to the first classification in the enterprise agreement. Can I ask that if the advocate is going to be asking this gentleman about what goes on in terms of recruitment that she be specific as to whether it's for a crew member or across the classifications? Otherwise the witness is going to be confused. The question should be, and it is not for me to reframe the question for my friend, in relation to a crew member, question. They are different levels in the enterprise agreement, and the union - I will be submitting this. The union puts no evidence on, at all, on BOOT with respect to the Victorian sites, with respect to the classifications above the basic classification of crew member. As a matter of fairness, she should be very precise about these questions.

PN668

THE DEPUTY PRESIDENT: If she is cross-examining she is at large, so I am not going to confine the topic areas. But I understand the request for specificity.

PN669

MR BROWN: I am not seeking to - it is in fairness to the witness, Deputy President.

PN670

THE DEPUTY PRESIDENT: Yes.

PN671

MR BROWN: He has to understand whether these questions are about particular classifications. I will be submitting that you should have no regard to any evidence in relation to the other classifications, because there is no contention and there is no evidence in relation to that. I just want to ask my friend that if she is going to be asking this gentleman questions that she be classification specific, please.

PN672

THE DEPUTY PRESIDENT: Yes. You take that on board, Ms Beynon?

PN673

MS BEYNON: I will take that on board. I am currently just dealing with Mr Aslam's evidence about how he recruits, but I am happy to build up to that point.

PN674

THE DEPUTY PRESIDENT: Yes.

PN675

MS BEYNON: Thanks. You are directly involved in hiring these employees?‑‑‑Yes.

PN676

Employees for the standalone sites?‑‑‑Yes, I am.

PN677

Are you involved in hiring people who would be classified as Krispy Crew?‑‑‑Yes, I do.

*** TALAL ASLAM XXN MS BEYNON

PN678

When you hire somebody as a Krispy Crew you would look at their resume?‑‑‑Yes, I do.

PN679

On their resume does it sometimes have food manufacturing experience?‑‑‑Yes, they do.

PN680

That is something that you would look for?‑‑‑Not necessarily.

PN681

Why would you not necessarily want food manufacturing experience?‑‑‑Because it's an entry level job. So we are looking for flexibility and their commitment instead of like, having food-related experience. It's good to have, but it's not the only point we look at.

PN682

But you would accept, wouldn't you, that lots of the resumes you get for the Krispy Crew jobs have some food manufacturing experience?

PN683

MR BROWN: No, that's not what he said. She was putting that back as if it was his evidence, not a proposition.

PN684

MS BEYNON: It's a proposition.

PN685

MR BROWN: Well, then put it as a proposition. Not put it back as if it was the witness's evidence, please.

PN686

THE DEPUTY PRESIDENT: Well, I think it is taken as a proposition. If you want to maybe just ask it again.

PN687

MS BEYNON: Sure. Mr Aslam, you would accept, wouldn't you, that lots of the resumes that you get in for Krispy Crew have some food manufacturing experience?‑‑‑I cannot tell you the exact numbers, how many get that, but some of them, yes. But some of them don't.

PN688

Yes?‑‑‑Like, it's - I cannot tell you that most of them. But at least some of them. Some of them not.

PN689

Some of them do, okay. That's experience in food manufacturing?‑‑‑Food-related experience. Not manufacture.

*** TALAL ASLAM XXN MS BEYNON

PN690

Food-related, all right. When you are recruiting for team leader roles, do those people have food manufacturing experience?‑‑‑Yes, they do.

PN691

They do. You've said that quite confidently. They always have food manufacturing experience, in your experience?‑‑‑Again, not always, but they do have. Mostly they do have food manufacturing experience.

PN692

Do they tend to have qualifications in food manufacturing?‑‑‑No, they're not.

PN693

They have past experience in food manufacturing?‑‑‑Again, it's not necessary, but it's good to have.

PN694

It's something that would weigh in favour of you hiring those workers?‑‑‑Sometimes.

PN695

Sometimes. Do you interview these people as well?‑‑‑Yes, I do.

PN696

Is it part of the interview process that you ask them what experience they have?‑‑‑Yes, we ask them the experiences they have, yes.

PN697

When you ask the experience of a Krispy Crew prospective employee, would you ask if they have worked in a food environment before?‑‑‑We ask for their experiences only, what experience they have mentioned in their resume, and what kind of job they have done in that particular job.

PN698

Do you find when you ask those questions that they have worked in a food environment?‑‑‑If it's written in their resume, yes.

PN699

Yes, okay. Is that the same for when you are interviewing team leaders?‑‑‑That's correct.

PN700

Do you ask questions of the team leaders, whether they have formal qualifications?‑‑‑No, we don't.

PN701

You don't ask them if they have a formal qualification? You are not sure whether they have any certificates or anything like that?‑‑‑Yes.

*** TALAL ASLAM XXN MS BEYNON

PN702

When you're interviewing the Krispy Crew for prospective employees do you enquire as to whether they have any formal qualifications?‑‑‑No, we don't.

PN703

You don't know whether or not they have - - -?‑‑‑No. It's not required.

PN704

Not that it's not required?‑‑‑Yes.

PN705

I am just asking if you have knowledge. If you have knowledge, through the processes, of whether or not they have a qualification?‑‑‑No.

PN706

When you have prospective employees come into the business, do you assess them in any particular way?‑‑‑Sorry, come again?

PN707

That's all right. You would accept the proposition that at Len Thomas - that's your primary place of work. At Len Thomas, there are a lot of workers there who come from migrant backgrounds?‑‑‑Len Thomas and Fountain Gate are basically my - the place of work. I look after these two sites, right?

PN708

Yes?‑‑‑And there are some people who are migrants is all.

PN709

Some people. It's a majority of people come from migrant backgrounds, isn't it?‑‑‑Yes, I don't have on top of my head a number. But some of them, yes, migrants.

PN710

When those workers start work do you assess them for English language?‑‑‑They are mostly uni students, used to be uni students doing their master's degrees, bachelor's degrees. I have some of engineer, some of, you know, IT specialists, accountants as well. So they are - we don't assess them in English, but we know they are doing their degrees over here, so should be fine. And they are fine.

PN711

But you don't assess them in English?‑‑‑Every process in - we do everything in English, so.

PN712

Do you ask them to do any written tests in English?‑‑‑No, we don't.

PN713

In and amongst those some, maybe many, workers who are from migrant backgrounds but work at Len Thomas and maybe Narre Warren, Fountain Gate?‑‑‑Fountain Gate. Some of them, yes, migrants.

*** TALAL ASLAM XXN MS BEYNON

PN714

Some, yes. You would agree that many of those workers speak English as a second language, is that correct?‑‑‑Some of them have second language - English as a second language.

PN715

It's more than half, isn't it, if we were thinking about it?‑‑‑I'm sorry, I cannot tell you more than half. But some of them has second language English.

PN716

But it's more than a small amount, isn't it?‑‑‑Again, I am sorry, I cannot tell you the exact number. But there are some of them who have second language English.

PN717

We'll have a look at some rosters in a minute. You've said in your statement that there's about 95 employees?‑‑‑Around - around there.

PN718

Is that for both sides?‑‑‑Yes, for both Len Thomas and Fountain Gate.

PN719

Approximately of that number, how many do you think speak English as a second language?

PN720

MR BROWN: No, I think the question has been asked now for the fifth time. He has answered the question. He doesn't know. I will also add that there is no foundation for the Commission at the moment as to what this advocate thinks is or this witness says is English as a second language. It hasn't been established as a foundation for the questions at all. That's a technical term, English as a second language. No question about that. He has been asked this question four times, and the advocate is now just trying to move it from some to majority. It has been asked and answered four times. I object to the question.

PN721

THE DEPUTY PRESIDENT: Yes, Ms Beynon, do you want to just obtain his understanding of what second language in terms of English is, or what a second language is? Also, I mean, the question has been asked a few times. You'll probably get the same or different answers, but it may not take it very far.

PN722

MS BEYNON: No, that's okay.

PN723

THE DEPUTY PRESIDENT: Yes.

PN724

MS BEYNON: As I said, we will look at the rosters in a moment and we might get a different response.

*** TALAL ASLAM XXN MS BEYNON

PN725

THE DEPUTY PRESIDENT: Yes.

PN726

MS BEYNON: Just on the term English as a second language, do you understand what I mean when I say English as a second language?

PN727

MR BROWN: No, the question has to be what is his understanding, not what do you - the question has to be put in a way that the witness can respond to it. The words English as a second language don't mean anything unless the witness is asked for his understanding of it.

PN728

MS BEYNON: Which is exactly what just happened.

PN729

THE DEPUTY PRESIDENT: I thought that was the question.

PN730

MR BROWN: It's not the question that was put. It may be easier for the question to just come from the bench. My friend seems reluctant to ask this witness does he understand what the words English as a second language mean. It's a pretty simple question. It is an admissible question. Someone is going to have to put it, or I will put it in re-examination.

PN731

THE DEPUTY PRESIDENT: Yes. Well, I understood that was the question that was asked.

PN732

MS BEYNON: Yes, as did I.

PN733

THE DEPUTY PRESIDENT: But Ms Beynon, do you want to ask that question?

PN734

MS BEYNON: Mr Aslam, do you understand the term English as a second language?

PN735

MR BROWN: No, that is a different question. Do you understand the words English as a second language is a completely different question as to what is your understanding of the expression English as a second language.

*** TALAL ASLAM XXN MS BEYNON

PN736

THE DEPUTY PRESIDENT: Yes. Mr Aslam, what is your understanding as to what English as a second language means?‑‑‑Because - my understanding of English as a second language, the first language is from their native countries, like they have come from, and English is the second language that they are using in Australia.

PN737

Thank you.

PN738

MS BEYNON: Thank you, Mr Aslam. It is your experience that particularly at Len Thomas workers speak a lot of different language?‑‑‑In Len Thomas I found regularly they speak only English.

PN739

Sorry?‑‑‑At Len Thomas and Fountain Gate they speak English.

PN740

All the time?‑‑‑All the time.

PN741

Do they talk to each other in different languages?‑‑‑Maybe in - - -

PN742

MR BROWN: I object. He can't answer that question.

PN743

THE DEPUTY PRESIDENT: Well, he may have observed it.

PN744

MR BROWN: That's a different question. The question is have you observed other employees talking in other languages. He is not part of the conversation.

PN745

THE DEPUTY PRESIDENT: Yes. Ms Beynon, continue.

PN746

MS BEYNON: Mr Aslam, have you observed employees at Len Thomas speaking to each other in other languages?‑‑‑Not in a factory.

PN747

MS BEYNON: Where have you observed them speaking?‑‑‑Maybe outside of the factory on a break, or lunchrooms.

PN748

In the lunchroom, yes. When Ms Minhas, the organiser, goes out to Len Thomas - you are familiar with Ms Minhas?‑‑‑Yes, I do.

PN749

You are, yes. Have you observed her speaking different languages with her employees?‑‑‑I don't remember. I wasn't there from a long time.

*** TALAL ASLAM XXN MS BEYNON

PN750

You don't remember?‑‑‑No, I don't remember.

PN751

Do you speak Hindi or Punjab to Ms Minhas when she is there?‑‑‑Maybe.

PN752

Maybe?‑‑‑Mm.

PN753

Yes. I will put it to you that you do speak Hindi or Punjab to Ms Minhas?‑‑‑We are just having a chat about that, and she told me where she from, and then suddenly she know these languages as well.

PN754

Yes?‑‑‑So it wasn't a conversation in Punjabi.

PN755

Well, I put it to you that you do converse with Ms Minhas in Punjabi?‑‑‑I understand Punjabi, but it was not a conversation in Punjabi.

PN756

Well, I am putting it to you that you do speak to her in Punjabi about Punjabi?‑‑‑No, it is - I knew that she speaks Punjabi, and I speak Punjabi as well, but there might be words exchanged, but not a conversation happen in Punjabi or in - though.

PN757

But it's true, isn't it, that when Ms Minhas is there she speaks in Hindi or Punjab to workers?‑‑‑I don't remember, because I am just telling my experience only.

PN758

But you are in the lunchroom sometimes when those conversations are happening?‑‑‑Not all of the time.

PN759

Not all of the time, but sometimes?‑‑‑Sometimes might be there.

PN760

Yes. So sometimes you have observed that?‑‑‑I didn't witness that.

PN761

MR BROWN: No, I am sorry. We moved from evidence as to a discussion or a possible discussion between this gentleman and a union official - I query the relevance of that - in Punjabi, English, or Urdu. It doesn't really matter. And now we move to the question of the lunchroom and that - in fairness to the witness, the advocate has to bring him to the conversation that we are talking about. We have now moved into the lunchroom, and the question was that. So in fairness to the witness, my friend is just going to have to tighten the questions up.

*** TALAL ASLAM XXN MS BEYNON

PN762

THE DEPUTY PRESIDENT: I mean, I think the witness is understanding the questions, but Ms Beynon, to avoid further objections, if you just focus on a bit more specificity.

PN763

MS BEYNON: Mr Aslam, it is the case, isn't it, that you have observed Ms Minhas speaking to workers in Hindi or Punjab in the lunchroom, isn't it?‑‑‑I didn't witness. I don't remember.

PN764

You didn't witness, or you don't remember? They are different?‑‑‑I don't remember.

PN765

You don't remember, yes. It's possible, but you just don't remember it?‑‑‑I don't remember.

PN766

You don't remember it, okay. Have you got Ms Park's statement there?‑‑‑Yes, I do.

PN767

I just ruined mine. If you go to the back page of Ms Park's statement?‑‑‑Have the page number, sorry?

PN768

It's 30, and the paragraph is 108. Have you got it - - -?‑‑‑It's at 108, right?

PN769

You've got it there in front of you? So 108?‑‑‑Yes, I do.

PN770

That's the one that's dated down the bottom, 5 September?‑‑‑5 September.

PN771

It says there in response to a paragraph of Ms Minhas's statement that Krispy Kreme employees come from a variety of cultural backgrounds, and it says Krispy Kreme does not keep records of the individual employees' cultural backgrounds, however, all relevant employees speak English and Krispy Kreme communicates rosters and other employee communications in English. Did Ms Parks at any stage ask you how many non-English speakers worked at Len Thomas?

PN772

MR BROWN: There is no foundation before this Commission that there are any non-English speaking employees at Len Thomas or anywhere. There is no foundation for that.

PN773

THE DEPUTY PRESIDENT: Yes, that seems to be correct, Ms Beynon. What is the issue you are trying to elicit?

*** TALAL ASLAM XXN MS BEYNON

PN774

MS BEYNON: Sorry, that there are people who speak English as a second language - - -

PN775

MR BROWN: Different question.

PN776

MR BROWN: - - - at Len Thomas, which I believe is established.

PN777

THE DEPUTY PRESIDENT: Yes.

PN778

MS BEYNON: I will reframe the question on that basis. Did Ms Parks come to you at any stage and ask you how many people speak English as a second language at Len Thomas?‑‑‑No.

PN779

No, that didn't occur. Okay. Had she approached you since you have provided an estimate of people at Len Thomas that spoke English as a second language?‑‑‑No.

PN780

I take you to paragraph 7 of your statement?‑‑‑My statement?

PN781

Your statement, yes. It says here that you are familiar, again, with the production requirements and machinery at the Victorian standalone sites. So again, Len Thomas and Fountain Gate?‑‑‑In Fountain Gate, yes.

PN782

Yes, okay. So are you familiar with the production or machinery at any of the other standalone production sites?‑‑‑Len Thomas and Fountain Gate.

PN783

But none of the others?‑‑‑Sorry, rephrase it, what you mean there?

PN784

Are you familiar with the machinery and production at Loganholme, for example?‑‑‑Might be, but they have pretty much similar machineries.

PN785

You might be familiar, or you are familiar?‑‑‑If they don't have any changes, yes, I do. But if they have something extra over there, then I might not be able to - because it's been a long time I have seen that other facilities.

PN786

You are not familiar with the production?‑‑‑As long as they are - as long as they are similar to Len Thomas and Fountain Gate, yes. But if there's any changes then I'm definitely not.

*** TALAL ASLAM XXN MS BEYNON

PN787

Are you aware of whether or not those production facilities are similar?‑‑‑I'm not - sorry?

PN788

MR BROWN: He was talking about production machinery, not production facilities.

PN789

THE DEPUTY PRESIDENT: I think the witness is understanding the question.

PN790

MR BROWN: Is the question about production facility or production machinery?

PN791

THE DEPUTY PRESIDENT: Well, I understood the question to be is he aware of any differences in production machinery at the Loganholme site, yes.

PN792

THE WITNESS: Sorry, rephrase that if you can, please.

PN793

MS BEYNON: Are you aware of any differences between the production facilities or the machinery at Loganholme?‑‑‑Production machinery, theirs is pretty much the same, and facilities, I am not aware of the kind of.

PN794

Are you aware of any differences between the facilities or the production machinery at Huntingwood?‑‑‑Same answer. It's machinery-wise similar.

PN795

Yes?‑‑‑And facilities are different.

PN796

Yes. How do you know that the machinery is similar?‑‑‑Because they have a standard machinery. Krispy Kreme has standard machinery.

PN797

That's employed across all the sites?‑‑‑Pretty much.

PN798

Just staying with paragraph 7 there, we have already spoken about whether you are familiar with the recruitment at your site. Your sites, Len Thomas - - -?‑‑‑And Fountain Gate.

PN799

And Fountain Gate. Are you aware of the recruitment processes used at any of the other production facilities?‑‑‑No.

*** TALAL ASLAM XXN MS BEYNON

PN800

I just would like to take you to paragraph 9 of your own statement now. You're familiar with the duties and responsibilities of Krispy Crew?‑‑‑Yes, I do.

PN801

Then you have listed four classifications there as well?‑‑‑Yes, correct.

PN802

Krispy Crew, team leader, assistant manager, manager?‑‑‑That's correct.

PN803

To the best of your knowledge, are there workers at Len Thomas or Fountain Gate that work in classifications that aren't in those four classifications?‑‑‑I think - so they are in the four classifications to the best of my knowledge.

PN804

There is no one else that has a different classification?‑‑‑I don't remember anyone else with a different one, yes.

PN805

Is there anybody at Len Thomas or at Fountain Gate that works as a team trainer?‑‑‑I don't remember.

PN806

You don't remember, or you don't know?‑‑‑I don't remember. I think - so they all moved to team leader. There is no one as a team trainer. I don't remember exactly.

PN807

They all moved to team leader?‑‑‑Leaders, yes.

PN808

You are saying previously - is it your case that you are saying previously there was team trainers?‑‑‑Previously there was a role as a team trainer a couple of years before. Then it has been removed, and then now it's moved to team leaders.

PN809

There were people in that classification, and you say they have been moved into team leader?‑‑‑There might be some people who are in that classification, but then they are promoted to team leader.

PN810

Do you recall what the team trainers did? What was their role?‑‑‑Team trainer, as the name said, is training the team, yes.

PN811

Were they a level above Krispy Crew?‑‑‑They used to be a level above Krispy Crew.

PN812

They were above. If I can just take you to paragraph 10 of your statement?‑‑‑Yes.

*** TALAL ASLAM XXN MS BEYNON

PN813

What we've got there is something pulled out from the agreement, so that is the definition of a Krispy Crew. It says, "An employee appointed as such, based on performance, skills and competencies and having successfully completed the training required for the role"?‑‑‑Yes.

PN814

Yes. What are the skills and competencies required?‑‑‑For?

PN815

It says here in your evidence the classification of Krispy Crew is defined in the proposed agreement there, and you have excerpted it. And it says, "An employee appointed as such, based on performance, skills and competencies and having successfully completed the training." My question is what are the skills and competencies of a Krispy Crew worker?‑‑‑It's pretty much we see their skills of manual handling, packing skills, mixing - like, general skills, like not any specific skills, and competencies are they understand English, they understand communication, and are they good in communicating or understanding, so - and they are quick learners or not. Something like that. Their strengths.

PN816

So you've got some soft skills there about their English?‑‑‑Soft skills, their communication, definitely. Their communication (indistinct).

PN817

In terms of skills you have listed manual handling?‑‑‑Yes, pretty much, and general - there is no specific skill required. Just the manual handling, understanding of how - like pretty much, you know, working culture or something.

PN818

Just basic manual handling, understanding of a work culture, a team environment?‑‑‑Yes, understanding the environment, yes.

PN819

And some soft skills like speaking English?‑‑‑It's just the communication, that they can communicate.

PN820

And they can communicate, okay. That's what puts you at a Krispy Crew, okay. Then we go down, if you don't mind, to paragraph - actually, no. I might just stick with this one. Are there different areas in the Len Thomas factory?‑‑‑Sorry, what do you mean there?

PN821

The way work is divided up, is it divided into different areas in the Len Thomas factory?‑‑‑Different departments, you mean?

*** TALAL ASLAM XXN MS BEYNON

PN822

Different departments, yes?‑‑‑Yes, they are.

PN823

What are those departments?‑‑‑They are production, processing and packing, washup.

PN824

Processing, production?‑‑‑Packing and washup.

PN825

Packing.

PN826

THE DEPUTY PRESIDENT: I didn't get that last one?‑‑‑Washup.

PN827

MS BEYNON: Washup.

PN828

THE DEPUTY PRESIDENT: Washup.

PN829

MS BEYNON: Do workers work across all of these areas?‑‑‑Yes, some of them.

PN830

Some of them?‑‑‑Yes. Some of them work across.

PN831

Some work across. Is it the case that the majority are production employees for most of their time - are processing employees for most of their time?‑‑‑It's not always the case. Like, processing, the employers can do packing as well. Packing ones are doing production as well. Production ones sometimes do washup as well. Washup one doing packing as well. So it's interlinked, basically. Yes.

PN832

There is no workers who would just be in processing?‑‑‑No, some of them are just doing production and processing as well.

PN833

Just doing production?‑‑‑But it's not necessarily the case, because if we need any hand in packing or somewhere else, we can pull them out and ask them to do other stuff as well.

PN834

There is some flexibility?‑‑‑Yes, flexibility. Yes.

*** TALAL ASLAM XXN MS BEYNON

PN835

But there is also a core group of people who are in production or in processing or who are in packing, is that correct?‑‑‑Again, I am telling you, for example, processing, right. So if processing - at that time is only processing happening, so they will just work in processing. But after processing, if the packing starts, so they will finish their processing and they will start packing. So it depends on the time, what time they are working. So if at that time only the processing happened, they will do processing. And after processing if the packing starts, so they will finish their processing and they will start packing. So pretty much it's not that staff are bounded for one job. They are - pretty much the timing involved, what time, what they are doing.

PN836

Can you just step me through what a worker who is in the processing area does?

PN837

MR BROWN: I object. It gets back to my other point. If we are going to be asking these sorts of questions, in fairness to the witness it should be referable to the classification. I will be further submitting that the cross-examination should be restricted to Krispy Crew, because that is the only evidence that the witness has put forward. But I have raised that before. In fairness to the witness, you have got to be classification specific.

PN838

THE DEPUTY PRESIDENT: Yes, do you want to identify the classification or go through the different classifications?

PN839

MS BEYNON: No worries. I am happy to go through the different classifications.

PN840

MR BROWN: Yes.

PN841

MS BEYNON: A Krispy Crew worker in processing, can you step us through what all the tasks that they would be required to perform are?‑‑‑Okay. In my experience, they are picking from the line, and then they are dipping them, different icing, and decorating them. Then they are pumping them, so one of them, and then that's pretty much everything. So baking, dipping, pumping, just like decorating and all this stuff, yes. These are the processing tasks.

PN842

THE DEPUTY PRESIDENT: What do you mean by pumping?‑‑‑We fill shells. You know the - we have a shell part of filled doughnuts. So we pump them with the cream custard and all that stuff.

PN843

MS BEYNON: There's a pumping machine involved in that?‑‑‑Yes, there are pumping machines.

PN844

A Krispy Crew level would operate that pumping machine?‑‑‑Yes, they - correct. Crew level, yes, as well.

*** TALAL ASLAM XXN MS BEYNON

PN845

The decorating, is there a particular process that they need to follow to decorate those doughnuts?‑‑‑Yes. There is a recipe they have to follow.

PN846

Yes, there is a recipe?‑‑‑Yes.

PN847

Yes. Are they required - if the doughnut doesn't look quite right, do they need to make a judgment call on whether it's good enough to go out or not?‑‑‑Good and bad, yes.

PN848

Yes. This doughnut is like, on point, this is a good looking Krispy Kreme doughnut, and this one is not?‑‑‑Yes. Pretty much limited judgment, good and bad. But if they are following the recipes and procedures then it's mostly pretty good.

PN849

You're saying it's a limited judgment to assess whether or not it conforms with the quality control?‑‑‑Yes.

PN850

MR BROWN: No, that's not his evidence. His evidence is limited, good or bad. If my friend is going to put it back to him as his evidence, she should go with the words that the witness has said. Limited, good or bad. Not limited, meets the requirements. Again, in fairness to the witness, if my friend is going to frame the question as to that was his evidence, she should stick to his evidence. If she is putting a different proposition, she can knock herself out. But she has got to make the distinction between the two.

PN851

THE DEPUTY PRESIDENT: I think she is just summarising the evidence.

PN852

MS BEYNON: Yes.

PN853

MR BROWN: No, well, it is not for her to summarise the evidence and to play it back to the witness as his evidence. She just heard the words limited judgment, good or bad, and plays it back to them as something - the transcript will pick it up. The proposition that was put back was a very different proposition.

PN854

THE DEPUTY PRESIDENT: Ms Beynon, I think if the question is simply put, based on your evidence, would you agree that they exercise limited - - -

*** TALAL ASLAM XXN MS BEYNON

PN855

MR BROWN: I don't want to be patronising, but the advocate has to make a distinction between what the witness's evidence was and be faithful to that evidence if she is playing it back to him as his evidence, full stop. If she wants to put a different proposition, then it is not put up as his evidence. It is a different question. Again, these objections are fairness to the witness. They are very important objections. I have nothing further to say.

PN856

THE DEPUTY PRESIDENT: They are, but I don't think the question is really straying into misleading the witness. But again, I think if she wants to put a different proposition based on the evidence so that it goes the way she wishes it to go, it's up to the witness to correct it.

PN857

MR BROWN: The evidence is not the question. The evidence is the answer. If the question has the potential to mislead the witness then it is inadmissible.

PN858

THE DEPUTY PRESIDENT: Yes. Ms Beynon, you see the issue that is being raised?

PN859

MS BEYNON: No, not entirely, in fact. But I am happy to continue asking questions, but - - -

PN860

THE DEPUTY PRESIDENT: Well, I think if - you can summarise what you understand the evidence to be, and then put a different proposition.

PN861

MS BEYNON: Yes.

PN862

THE DEPUTY PRESIDENT: But I think the point Mr Brown is taking if there is certain evidence given, and then it is put back in a different way as the actual evidence that was given, and he says that's not fair to the witness.

PN863

MS BEYNON: I am happy to keep asking questions.

PN864

THE DEPUTY PRESIDENT: Yes.

PN865

MS BEYNON: And in fact, given the disruption, I am just going to start again with that line of enquiry.

PN866

THE DEPUTY PRESIDENT: Yes.

*** TALAL ASLAM XXN MS BEYNON

PN867

MR BROWN: Well, I object to it being regarded as a disruption. It is not a disruption. It is an objection. I think my friend should take that back. Objections are not a disruption. They are a fundamental process of the Commission informing itself.

PN868

THE DEPUTY PRESIDENT: Yes. I will just take that as submission. I don't want to have a debate about what an objection is or isn't. Ms Beynon, if you just continue on.

PN869

MS BEYNON: Thank you. Sorry, I am just going to go back to the doughnuts and decorating the doughnuts. Krispy Crew members are required to follow a recipe?‑‑‑Yes, they do.

PN870

In terms of - the recipe is for decorating the doughnuts?‑‑‑Yes.

PN871

Yes. They have to use their own skills to make sure it looks like the recipe, is that correct?‑‑‑They process them, yes.

PN872

They process them, they decorate them?‑‑‑Process and decorate is pretty much, yes, decorating them. Yes.

PN873

They are using skills to decorate the doughnuts in accordance with a procedure?‑‑‑Procedure and recipes.

PN874

Then once that has happened you might produce a doughnut that looks beautiful and on spec, or you may produce a doughnut that does not - is it the Krispy Crew member's decision about whether this one is good enough or not?‑‑‑As I mentioned again, they have a little judgment over there as well, limited, like it's good or bad. But we have a team leader level on the shifts as well, which evaluate the product, and then they decide that is good enough to pack or send it to the customer or not.

PN875

At the Krispy Crew level, if I am the person icing the doughnut though, I make the decision about whether it looks like I was meant to make it or it doesn't. Is that correct?‑‑‑Yes. As I mentioned, good and bad.

PN876

Thank you. In production, you were saying with production, you have got people decorating, which we have been through, people pumping the shells - - -?‑‑‑And processing.

PN877

Sorry, and processing?‑‑‑Yes.

*** TALAL ASLAM XXN MS BEYNON

PN878

The processing people are pumping the shells using a pumping machine for creams or - - -?‑‑‑Yes.

PN879

- - - custards or whatever, and then somebody would be dipping?‑‑‑That's correct.

PN880

What processes are there involved in dipping?‑‑‑Just hold two doughnuts and dip into the icing. That's it.

PN881

Then what happens with the doughnut?‑‑‑Then it's dipped.

PN882

What does the processing employee need to do with it then?‑‑‑Put it in a tray.

PN883

When you say they pick the doughnuts?‑‑‑Yes,

PN884

Can you describe what that process is?‑‑‑Picking the doughnuts from the line. So we have machinery that will pick the doughnuts from the line and put in a tray and put in the (indistinct).

PN885

If there's non-conforming doughnuts on that line, what is the Krispy Crew member - what is their responsibility in respect of the non-conforming ones?‑‑‑Yes, again, good and bad. So if it's a bad doughnut, they discard it. If it's a good doughnut, pick it up.

PN886

They make a judgment?‑‑‑That's a limited judgment, good or bad.

PN887

But it's a judgment that they make, isn't it?‑‑‑Limited judgment, good or bad.

PN888

Now, we want to go onto the production. Can you step us through what a production worker does?‑‑‑In production work, basically they are scaling the ingredients. They are putting them in a machine - - -

PN889

Sorry, did you say scaling?‑‑‑Yes.

*** TALAL ASLAM XXN MS BEYNON

PN890

Would you mind just explaining for me - - -?‑‑‑Weighing them, weighing different ingredients according to the recipe, and then they are putting in a mixture to mix it up, and they are putting it in a machine which cuts the doughnuts. Then doughnut automatically comes out. Then there is a procedure involved, glazing. So we glaze the products, so they make the glaze according to the recipe as well.

PN891

They make the glaze?‑‑‑Yes. Then cleaning, clean the equipment, clean the floor, hygienes, all of the hygienes and all the stuff. So that's pretty much.

PN892

Within production, a Krispy Crew member would perform these tasks?‑‑‑Yes, they do.

PN893

Scaling ingredients, so measuring?‑‑‑Measuring, weighing.

PN894

Weighing. Would they have to go and get the ingredients?‑‑‑Yes, they have to go and get the ingredients as well.

PN895

They would be responsible for those ingredients being the correct weight?‑‑‑Sorry, come again?

PN896

Just take a moment?‑‑‑Sorry. Thank you.

PN897

They would be responsible for making sure the ingredients - I imagine it's flour and sugar and other things. They would be responsible of making sure the weight is correct?‑‑‑According to the recipe, yes. They follow the recipe.

PN898

Yes, but their responsibility is to make sure they are getting the correct things?‑‑‑Yes. If they follow the recipe, definitely they have to make sure.

PN899

They have got a procedure, but they are responsible for getting the correct weight and the correct production, is that correct?‑‑‑That's what I said, yes. Yes.

PN900

Good. Then they are responsible for weighing that production?‑‑‑What do you mean by weighing that production?

PN901

Scaling the ingredients?‑‑‑Yes.

PN902

Scaling the ingredients, scaling them on the scale?‑‑‑Ingredients on the scale, yes. Weighing them, yes.

*** TALAL ASLAM XXN MS BEYNON

PN903

Good. Then they have got a recipe, and they have to follow that recipe?‑‑‑Correct.

PN904

Then you said they put it into a mixer?‑‑‑Yes.

PN905

Which I imagine is a dough mixer?‑‑‑It's a dough mixer, yes.

PN906

It's a dough mixer, okay. Somebody operates that dough mixer, a production worker?‑‑‑It's automatic. You just put it in and press a button, it will mix by itself.

PN907

But they operate that machinery?‑‑‑Yes, you can say that.

PN908

Yes. Then what other machinery is involved in the production?‑‑‑Then the doughnut machine line.

PN909

Sorry?‑‑‑Doughnut line.

PN910

The doughnut line machine, yes?‑‑‑Yes, yes.

PN911

A Krispy Crew member operates the doughnut line machinery?‑‑‑That's correct.

PN912

Is it just one person who does it, or are there a couple of people in production who would do that?‑‑‑Yes, two people in production, but sometimes one person in production. Mostly two people in production.

PN913

And they are machine operators in production?‑‑‑No, no, including them.

PN914

Including?‑‑‑Yes.

PN915

But their job is the machine operator?‑‑‑Their job is to operate the machine, yes.

PN916

Yes?‑‑‑It's pretty much automatic, but you just have to feed the machine.

PN917

Yes?‑‑‑Yes.

*** TALAL ASLAM XXN MS BEYNON

PN918

It's machine operation in a food manufacturing environment?‑‑‑You can say in that way, yes.

PN919

Then you talked about the glazing, and making the glaze?‑‑‑Yes, correct.

PN920

Yes. It's a Krispy Crew member's job to make a glaze?‑‑‑That's correct.

PN921

Using ingredients?‑‑‑Again, using ingredients, follow the recipe, yes.

PN922

Yes. This is the same process, they might need to go get the ingredients?‑‑‑Again, yes. Get the ingredients, mix it up, yes.

PN923

Scale the ingredients?‑‑‑Correct.

PN924

Yes. If something goes wrong in these processes, does a Krispy Crew member - are they trained to identify quality issues?‑‑‑Again, it's good and bad. Because if something goes wrong, we can't use them. We have to throw into the bin.

PN925

I will just take you back to my question. Are the Krispy Crew members trained to spot where things are going wrong on the machines?‑‑‑They are trained - yes, we train them, is it good or bad.

PN926

That's the extent of the training?‑‑‑We train them, like, if the dough coming out of the mixer is good or bad. Glaze is usable or not usable, is good or bad. We train them to see that, how they do so - sorry, I am sick, last week.

PN927

No, no. Drink as much as you need to?‑‑‑Thank you.

PN928

They are trained to spot whether there is a conforming product, non-conforming product?‑‑‑Are you talking about the end product, or in a mixing scale, sorry?

PN929

In a mixing - in the mixer, what are they taught to spot that's going wrong?‑‑‑They are taught to scale it properly and use the machinery properly, and if it's - if they have missed any step or anything, then they have to - like, is it bad or is it good? Are we going to use it, or are we not going to use it?

*** TALAL ASLAM XXN MS BEYNON

PN930

There is a series of decisions that a Krispy Crew member makes about the product as it goes along?‑‑‑Again, it's a good or bad. Series of - what do you mean by series of decisions? Sorry, can you please explain series of - like - - -

PN931

There is, as you said, going through these different processes, there can be a series of decisions a Krispy Crew member is making to assess whether something is right or wrong?‑‑‑I think there is only decisions. Either it is good, usable, or it is not usable.

PN932

However, that happens, as you said, in scaling the ingredients, weighing the ingredients across the recipe, when you're mixing, when you're glazing, when they're coming out through the machine. Is that correct?‑‑‑Yes. They are following the procedure, yes.

PN933

Are the Krispy Crew members trained to detect allergens or contamination in the products?‑‑‑Yes, we train them on allergen awareness, yes.

PN934

Allergen awareness and contamination awareness, yes?‑‑‑Yes, and contaminations and everything.

PN935

And counterfeiting awareness?‑‑‑Sorry?

PN936

And counterfeiting awareness?‑‑‑What do you mean by counterfeiting?

PN937

Fake foods, bad ingredients?‑‑‑Yes, we do. Yes.

PN938

A Krispy Crew member is trained on those aspects as well?‑‑‑Yes, we do.

PN939

Thank you. I have just got - there's two other areas. I just want to go into shippers and pallets at Len Thomas. Can you describe what a shipper and a pallet worker might do, Krispy Crew worker might do?‑‑‑Sorry, it's called packing. What they do is like, they are putting doughnuts into the shippers. A shipper is a box which contains a different dozen - different dozen of doughnuts. Like you start from two dozen, four dozen, eight dozen. There are three or four different type of shippers. So they are put in the shippers, and then they are up on the pallets for dispatching to the customers.

PN940

People in that area, they don't produce doughnuts?‑‑‑They just pack doughnuts.

*** TALAL ASLAM XXN MS BEYNON

PN941

They just pack the doughnuts, okay. They are not using any machinery?‑‑‑No, they are not. It's all manual handling.

PN942

They are not following any recipes?‑‑‑No recipe, but packing shippers have their contribution which they have to follow.

PN943

They're not weighing any ingredients?‑‑‑No, they're not weighing any ingredients.

PN944

And they're not making those good or bad judgments?‑‑‑In packing they do, but in shipper and pallet, there's not. Are you talking about the shippers and pallet as in - - -

PN945

Yes, yes. Is packing part of that group?‑‑‑Packing is before shippers and pallet.

PN946

Is packing connected to labels?‑‑‑Label is a different job.

PN947

Label is a different job, okay. Can you just talk me through what people in labels do?‑‑‑They just label the boxes, which we have to - best before - basically it's best before labels we have to put on the boxes before we dispatch that.

PN948

Yes. Can you just describe what washup us?‑‑‑Washup is washing the trays, doughnut trays.

PN949

How often does that shift occur?‑‑‑We do two shifts a day.

PN950

Two shifts a day of washup?‑‑‑Yes, yes.

PN951

That fills me with confidence about eating Krispy Kremes. That's a lot of washup. That's good.

PN952

In your estimate, how many of the Krispy Crew members work in production?‑‑‑Like, what do you mean by - production area?

PN953

Production area, yes?‑‑‑Or production facility, all facility - - -

*** TALAL ASLAM XXN MS BEYNON

PN954

Not the whole facility. Just staying with the categories that we looked at before. Production, the production ones, the ones that are mixing and using the machinery and stuff?‑‑‑Best of my memory, 10. 10 people.

PN955

10 people there?‑‑‑10 to 12, yes.

PN956

And in processing?‑‑‑Processing, we have a lot. Probably around 30, 40 people.

PN957

Is this per shift?‑‑‑No, no, no. I am talking about the overall number here.

PN958

Overall, yes?‑‑‑Yes.

PN959

How many people do you think approximately are working in packing the shippers pallets?‑‑‑Five, six people.

PN960

And labels?‑‑‑Again, that two, three, three, four people.

PN961

And washup?‑‑‑Washup we have four, five as well.

PN962

Based on that, production and processing are the main jobs? They make up the largest number of the jobs at Len Thomas?‑‑‑Yes, they are, but in a processing number that I am telling you, some of them are doing the packing as well. So it's - packing and processing is together, and then it's production, so.

PN963

Thank you. Mr Aslam, we went through the production workers operating machinery at different stages, dough mixing, using the doughnut line, mixing things up, mixing up glazes. In your view, is that a higher skilled job than somebody who is doing the labels job?‑‑‑It's a different - both - label is pretty much - and production is different training, different skills required. So it's a different job, both of them.

PN964

There is more advanced skills used in production, isn't there?‑‑‑We need more training to develop these skills in production. In labelling we require - less training to require.

PN965

You need more training to develop more skills in production?‑‑‑In production, yes.

*** TALAL ASLAM XXN MS BEYNON

PN966

And processing?‑‑‑And processing, yes.

PN967

Production and processing. Thank you. Have you got Ms Minhas's statement there? I don't know whether we worked this out. If not, I have a spare copy?‑‑‑Yes, I have one.

PN968

Great. My final question.

PN969

THE DEPUTY PRESIDENT: Do you want to give your spare copy to the witness now?

PN970

MR BROWN: We actually have a clean copy here if that would help.

PN971

MS BEYNON: This is a clean - - -

PN972

MR BROWN: Okay.

PN973

THE DEPUTY PRESIDENT: Everyone has got one now. Thank you.

PN974

MS BEYNON: I just would like you to go to the back page of Ms Minhas's statement, so it's page 16. It's paragraph 98, called culturally and linguistically diverse. Ms Minhas says there in her experience organising the workers at Len Thomas and Fountain Gate sites, "I am aware that many employees don't speak English as their first language and have trouble understanding industrial matters. I speak Punjabi or Hindi to these workers to explain the industrial matters such as the agreement." I put it to you, Mr Aslam, that Ms Minhas comes to Len Thomas quite a lot?‑‑‑Yes.

PN975

Yes, and that in the lunchroom?‑‑‑That's correct.

PN976

She speaks Punjabi and Hindi to the members there?‑‑‑Sorry?

PN977

MR BROWN: He's answered that question four times. This is the fifth time, about the lunchroom.

PN978

THE DEPUTY PRESIDENT: Correct, but - - -

*** TALAL ASLAM XXN MS BEYNON

PN979

MR BROWN: If it's the last question, it's a free one.

PN980

THE DEPUTY PRESIDENT: It's the first time it's been put based upon this evidence.

PN981

MR BROWN: This evidence is understanding industrial matters. It hasn't been put to this witness what he understands industrial matters to be. If it's referable to clause 98 of this statement, Ms Minhas is talking about having trouble speaking in non-English, presumably, about industrial matters. If it is going to be about this question, there has to be some cross-examination as to what is this witness's understanding of industrial matters. But if it is just put as a general question, it's the fifth time. If it's the last question, I do not make any objection.

PN982

THE DEPUTY PRESIDENT: Yes. Continue on, Ms Beynon.

PN983

MS BEYNON: Thank you, Mr Aslam. This is the last past of what I'll ask you today. I put it to you that you have seen Ms Minhas speaking in Punjabi and Hindi with workers in the lunchroom. That's correct, isn't it?‑‑‑I don't remember.

PN984

You don't remember?‑‑‑Yes.

PN985

It was Ms Minhas's evidence today that you speak Punjab and Hindi to workers in the lunchroom?‑‑‑That's, again, her statement. What can I say?

PN986

Well, I put it to you that you do do that?‑‑‑Again, I don't.

PN987

You communicate with the employees in languages other than English.

PN988

MR BROWN: That's a different proposition.

PN989

THE DEPUTY PRESIDENT: Do you understand that question?‑‑‑Do I speak other language with - yes, I do speak other language, but it's not in Len Thomas facility.

PN990

MS BEYNON: I put it to you that at Len Thomas you speak other languages to employees?‑‑‑I speak only English at Len Thomas facility.

*** TALAL ASLAM XXN MS BEYNON

PN991

I put it to you that that is not the case. I have been out there, Mr Aslam, and I have heard you?‑‑‑I am telling you, in facility, production facility - if it's outside the Len Thomas - if it's in my lunch area, I might be having some conversations with them.

PN992

Yes?‑‑‑But in production facilities inside the production rooms, inside the factory, the only medium of communication is English.

PN993

In the lunchroom?‑‑‑It might be in the lunchroom, in my area outside of the facility. Yes, I might have conversation in my own language. But again, I am telling you, in facility, manufacturing facility, where workers are working, at work, the only medium of communication is English.

PN994

In the lunchroom, which is inside the facility, that's correct, isn't it?‑‑‑It is outside of the manufacturing facility.

PN995

The lunchroom, which is inside the same building?‑‑‑Yes.

PN996

Yes, okay. I put it to you that you speak to workers in that lunchroom in languages other than English?‑‑‑Yes, I do.

PN997

Yes, you do. Thank you. I have no further questions.

RE-EXAMINATION BY MR BROWN [10.45 AM]

PN998

MR BROWN: We were just talking about you language. What is your language? You weren't asked that question?‑‑‑I can speak a couple of languages, like Urdu, Punjabi and English.

PN999

What sort - I think it has been extracted from you after many questions, and I think your evidence is that you may speak with other workers in the lunchroom in languages other than English. That seems to be your evidence?‑‑‑Sometimes, but I have to make sure - what I make sure is no one is around that time who doesn't speak that same language.

PN1000

If you were in the lunchroom and you were talking to someone in - sorry, sir, I should have listened. Let's just take your main language. Is your main language Punjabi?‑‑‑No, my language is Urdu.

*** TALAL ASLAM RXN MR BROWN

PN1001

Urdu, that's right. Obviously there must be a worker there that also speaks Urdu?‑‑‑Yes, there are Urdu, Hindi. Because Urdu and Hindi sound the same.

PN1002

Yes. Do I understand - and I think I can lead on this point, that Urdu is a language that people from Pakistan would speak?‑‑‑Yes.

PN1003

When you are in the lunchroom and you are speaking with someone in Urdu, what sort of things are you talking about?‑‑‑Personal lives, how was the weekend and all that stuff. Very quick, and maybe (indistinct) all the stuff, so.

PN1004

Thank you. I've only got two other questions. You have said a number of times and made reference to the recipes, and you have also referred to the procedures. I am being careful not to lead here, Deputy President. What, if any, ability do Krispy Crew workers have to go outside of these procedures or recipes?‑‑‑Zero per cent. Like, none. They have to be inside of the procedure and policies.

PN1005

Last question. My friend was asking you questions about persons that have qualifications in food manufacturing, do you remember that?‑‑‑Yes, I do.

PN1006

Then you made reference to something different, which was food-related?‑‑‑Yes.

PN1007

Could you advise the Commission as to what your understanding is the difference between someone who may have food-related experience, or as opposed to food manufacturing experience?‑‑‑My understanding is food-related is a person who knows how to handle the food. It doesn't really matter that he is involved in manufacturing, because he knows the basic hygienes of the food. For manufacturing, means that he is involved in kind of a manufacturing environment where he produced or involved in manufacturing the food.

PN1008

No further - - -?‑‑‑So yes - - -

PN1009

Sorry, go ahead?‑‑‑The basic concept is the hygienes, like, handling the food, hygienes.

PN1010

No further questions in re-examination.

PN1011

THE DEPUTY PRESIDENT: Thank you. Mr Aslam, thank you for your evidence. You are excused?‑‑‑Thank you.

*** TALAL ASLAM RXN MR BROWN

PN1012

That's all?‑‑‑That's all?

PN1013

Yes?‑‑‑Thank you. Okay.

PN1014

MR BROWN: He has a flight booked. He can leave for the day? There's no - - -

PN1015

THE DEPUTY PRESIDENT: Yes.

PN1016

MR BROWN: Thank you for that, Deputy President.

<THE WITNESS WITHDREW [10.48 AM]

PN1017

MR BROWN: Are you happy for me to proceed with the final witness for the applicant, Deputy President?

PN1018

THE DEPUTY PRESIDENT: Yes.

PN1019

MR BROWN: I call Ms Sally Park.

PN1020

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

PN1021

MS PARK: Sally Anne Louise Park, (address supplied).

PN1022

THE ASSOCIATE: Thank you. Now, it is my understanding that you wish to give an affirmation in the proceedings today, is that correct?

PN1023

MS PARK: It is.

<SALLY ANNE LOUISE PARK, AFFIRMED [10.49 AM]

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

PN1024

THE ASSOCIATE: Thank you. You may be seated.

PN1025

MR BROWN: Ms Park, could you state for the record your full name, please?‑‑‑Sally Anne Louise Park.

*** SALLY ANNE LOUISE PARK XN MR BROWN

PN1026

Could you say that again, please?‑‑‑Sally Anne Louise Park.

PN1027

Thank you, and your position?‑‑‑I am the HR director at Krispy Kreme.

PN1028

You have made a statement in these proceedings?‑‑‑I have.

PN1029

Is it a statement dated 5 September 2019 and some 109 paragraphs?‑‑‑Yes.

PN1030

Deputy President, we would seek to have the statement dated 5 September of Sally Park made an exhibit in the proceedings.

PN1031

THE DEPUTY PRESIDENT: Yes, any objections?

PN1032

MR BROWN: No.

PN1033

THE DEPUTY PRESIDENT: Exhibit A2.

EXHIBIT #A2 STATEMENT OF SALLY ANNE LOUISE PARK DATED 05/09/2019

PN1034

MR BROWN: No further evidence-in-chief.

CROSS-EXAMINATION BY MS BEYNON [10.50 AM]

PN1035

MS BEYNON: Thanks, Ms Park. You have been the human resource manager for five years?‑‑‑Yes.

PN1036

Yes, okay. All right. Is this the first agreement that you have been involved in negotiating?‑‑‑Yes. Well, the 2016 agreement as well, I was involved in.

PN1037

You were involved in this one and the 2016 one and not the 2008 one?‑‑‑No.

PN1038

The 2016 agreement, that was withdrawn, is that correct?‑‑‑Correct.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1039

The scope of that agreement applied to retail workers only, is that correct?‑‑‑No, that's not correct. The scope applied to the people - the titles outlined in the scope, which hasn't changed and applies to all our sites and facilities across all states and territories.

PN1040

The 2016 agreement scope?‑‑‑Has not changed. So the scope that was in the 2019 agreement or the 2008 agreements remains the same.

PN1041

You are saying that the 2016 agreement didn't cover - well, it did cover production facilities?‑‑‑It covers all our employees who work across our facilities in the states and territories of Australia.

PN1042

When that was submitted to Fair Work, it was only assessed against the Fast Food Industry Award?‑‑‑Yes, that was our focus at the time.

PN1043

We will come back to that later. I just want to take you to paragraph 108 of your statement. You would accept that there's quite a few employees covered by the proposed enterprise agreement?‑‑‑There are.

PN1044

Yes. Some 800 or so?‑‑‑Yes, I think so. 800 to 1000.

PN1045

800 to 1000?‑‑‑Yes, I think the numbers have gone up a bit since we submitted the document in May.

PN1046

You accept that a substantial proportion of those are young workers, workers under the age of 21?‑‑‑That was covered in the submission. I don't have the number of employees that are under the age of 21 with me, but we do employ people that are under the age of 21.

PN1047

I've got the advantage of seeing the F17s, and the F17, you accept that it was 257 young employees?‑‑‑I don't have that number with me, but if that's what the F17 says, yes, at the time of the submission we had 257 employees under the age of 21.

PN1048

The F17 didn't include any information about how many people are from culturally and linguistically diverse - - -?‑‑‑We don't keep records of that information.

PN1049

No records. You would accept, though, wouldn't you, that there are employees from migrant backgrounds?‑‑‑Yes. It's something we are quite proud of. We have a very diverse workforce.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1050

Yes. Particularly in production, some of your production environments, there is a very high percentage of migrant workers, wouldn't you agree?‑‑‑I couldn't say the specific numbers, but we do employ a variety of people from cultural backgrounds across our business in both retail and also in our standalone facilities.

PN1051

As you don't keep records, how do you assess people for their English speaking ability?‑‑‑We don't do any formal testing with regards to their ability to speak English. It is just a requirement that they have an understanding of English. The recruitment is all conducted in English, and all the training and employee communications is all in English.

PN1052

Are you aware of whether all of those employees read English?‑‑‑It's not something we test.

PN1053

You don't know?‑‑‑I could not say.

PN1054

I note in your paragraph, you have said that communication communicates rosters in English?‑‑‑Mm.

PN1055

Yes, okay. Roster just has your name and your start time and your area generally. That's not a particularly complicated document, is it?‑‑‑No, it's quite straightforward.

PN1056

Quite straightforward, yes. Much more straightforward than, for example, an enterprise bargaining document?‑‑‑Well, it depends of what your definition of an enterprise bargaining document is. But as I explained, we communicate our rosters in English as well as all employee communications and training is all conducted in English.

PN1057

Yes. You have been HR manager for five years, yes?‑‑‑Yes.

PN1058

You know the requirements for submitting an agreement to Fair Work?‑‑‑Yes.

PN1059

Yes, and you know that one of those requirements is to demonstrate to Fair Work that you have taken reasonable steps to explain the terms of the agreement to people in particular circumstances, like culturally and linguistically diverse employees?‑‑‑Yes.

PN1060

You know that you have them, that's correct?‑‑‑Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1061

Yes. But you didn't take any steps?

PN1062

MR BROWN: I am just going to object at this point of time. I will be making this point in submissions. The union made an election as to what evidence it chose to file, which took exception to or to cavil with the F17. With the exception of a single paragraph of the second witness, who is yet to be called, from the union, which deals with her speaking another language to people about industrial matters, the only evidence that has been led by the union in relation to this particular issue was the evidence that we heard yesterday, exclusively to the Logan site. If this witness is going to be asked about reasonable steps to explain, and if her evidence is to have any utility to the Commission at all, it has got to intersect with the evidence that is filed. The only contention that this union has, that it has produced evidence for, is what we heard yesterday from the witness about genuinely agreed. She was given the opportunity to make a comment about people, whether they understood the agreement. Her answers yesterday, you know. She actually have evidence that - we will be submitting she agreed with the proposition that English was widely spoken and people understood it. So English language at Logan, tick. Her only evidence about young people was that she was 23. 22 going on 23. She seemed to vacillate in her evidence between saying that she was either an expert on industrial relations or a babe in the woods. Again, for submission. If this witness is now going to be asked about issues relating to genuinely agreed, it must, as a matter of logic, be restricted to the Logan home site exclusively.

PN1063

THE DEPUTY PRESIDENT: I don't know as a matter of logic. I am required to be satisfied that reasonable explanation has been provided. Many unions come along to these sorts of proceedings without any evidence at all and simply try and make their case on cross-examination. Again, it is an inquisitorial process. Ms Beynon is at large. Whatever she gets out of cross-examination will be a matter for submissions, and obviously by reference to whatever other evidence has been led. But I, again, don't see any reason to restrict the cross-examination.

PN1064

MR BROWN: I don't want to hold it up any more. Deputy President, you are the inquisitor.

PN1065

THE DEPUTY PRESIDENT: Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1066

MR BROWN: My friend is an advocate. They are very different roles. Her questions have to be framed in terms of the case as pleaded, the contentions and the evidence. Her questions have to be fair to the witness as well. A direction was given in this matter that if the union took issue with issues that are in my client's F17, they were to adduce evidence. They made an election. The only evidence that this union led in relation to the contention that my client did not meet the - what I will loosely call the genuinely agreed requirements is Logan. It is Logan or bust for the union on this issue.

PN1067

THE DEPUTY PRESIDENT: Well, I don't know that that is the case. I mean, that could be a matter for final submissions, but at the moment - - -

PN1068

MR BROWN: I have said my peace.

PN1069

THE DEPUTY PRESIDENT: Yes. You have made your objections recorded, but I am going to allow Ms - - -

PN1070

MR BROWN: Then as a matter of fairness, when my friend does ask her questions, perhaps she can make it clear as to whether she is asking the question at large or with reference to Loganholme or any other site. Thank you.

PN1071

THE DEPUTY PRESIDENT: Yes.

PN1072

MS BEYNON: The question is at large, and it goes to what the - steps the employer took. You've been HR manager for five years. You were involved in the last proposed enterprise agreement, 2016?‑‑‑Mm.

PN1073

And you are aware of the requirement that the employer must take all reasonable steps - - -?‑‑‑Yes.

PN1074

- - - to explain the agreement, and part of that is to look at the circumstances, yes? Of people who are culturally and linguistically diverse. That's your knowledge?‑‑‑Yes.

PN1075

Yes. Given that you know you have culturally and linguistically diverse employees - that's correct, yes?‑‑‑Yes.

PN1076

Sorry, you just have to say yes for the transcript. Did you turn your mind to the ways in which you could communicate with those employees to ensure they understood it?‑‑‑We - as I've explained, all of our communications with our employees are always in English, and we make a point of using simple language so it's easy for people to understand, and we also communicate it both written and verbally and provide a number of face-to-face opportunities for people to ask questions. So I believe we gave plenty of opportunity for people to really get to understand what we were putting forward.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1077

Did you take any steps to have any material translated in other languages?‑‑‑No, because we always communicate in English.

PN1078

It is quite a complicated process, an EBA process, isn't it?‑‑‑It is complicated, but we provided our employees with updates throughout the process by letters to update them on where we were in the process, so they were aware of what was happening.

PN1079

Some of the industrial concepts can be complicated?‑‑‑Well, yes, but as I explained, we explained over numerous occasions across the process to make sure that our employees had all the information they needed.

PN1080

But only ever in English?‑‑‑Only ever in English.

PN1081

You didn't consider using translators or producing materials in language other than English?‑‑‑No, because as I have explained, all of our communications with our employees are always in English.

PN1082

But most of those communications would not be as complex as the EBA itself?‑‑‑I - yes - no. I'm not really sure how to answer that. We would communicate a number of different things to our employees from rosters, which are very easy, to this enterprise agreement and everything in between.

PN1083

But the agreement - you would agree with me, the agreement is a much more complicated document than a memo or a roster, isn't it?‑‑‑We've drafted the agreement in simple English to make it as easy to understand for our employees to understand, and also for us, as an employer, to implement it.

PN1084

I would just like to go to paragraph 12 of your statement about the bargaining representatives?‑‑‑Yes.

PN1085

If I go to 12A and B there. Two email communications, one was from Imogen Beynon with the NUW and that was on the 25th, and also you have an email from a Western Australian employee by the name of Jenny Snell?‑‑‑Yes.

PN1086

On 18 Feb, okay. Ms Snell, is she a production worker, a retail worker?‑‑‑She works in retail.

PN1087

Is she a manager?‑‑‑I think she's a team leader.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1088

She's a team leader. Are you aware of whether she represented herself?‑‑‑Herself, yes.

PN1089

She wasn't representing anyone else?‑‑‑Not as far as I'm aware.

PN1090

The NUW, were you aware of who they were representing?‑‑‑I believe at the time it was representing employees from Logan.

PN1091

How many employees are there at Logan approximately?‑‑‑I think it's - I would guess around 80. It's somewhere in my statement.

PN1092

I just want to take you now back to paragraph 6 of your statement, which is just an overview of the business?‑‑‑Yes.

PN1093

Was there any bargaining representatives from Auburn in New South Wales?‑‑‑No.

PN1094

Any representatives from Brisbane Myer centre?‑‑‑No.

PN1095

Any representatives from, let's say, Huntingwood?‑‑‑No.

PN1096

Any representatives from Parramatta?

PN1097

MR BROWN: I think if my friend is saying - is it bargaining representatives as a defined term? Can my friend use the (indistinct) expression?

PN1098

MS BEYNON: Any bargaining representatives from Parramatta?‑‑‑No.

PN1099

Can I take it that the rest of these A through to AA sites had no bargaining representative?‑‑‑The only nominated bargaining representatives we received was the email that you know just referenced, so Jenny Snell and yourself.

PN1100

There was two bargaining representatives?‑‑‑Yes.

PN1101

THE DEPUTY PRESIDENT: Was it A to CC or A to AA?

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1102

MS BEYNON: Sorry, A to CC. We have then, do we not, the case that a very significant number of employees who would be covered by this agreement didn't have a bargaining representative?‑‑‑Well, they - yes, but we communicated with all of our employees and took questions from them directly so they were still able to participate in the process, even though they weren't formally nominated as the bargaining representative.

PN1103

Just in terms of actual bargaining representatives, there's maybe around 700, maybe more, that didn't have any bargaining representative at all?‑‑‑That weren't formally nominated as a bargaining representative, no.

PN1104

That didn't formally nominate themselves?‑‑‑Yes.

PN1105

But also weren't represented by a bargaining representative?‑‑‑Yes. But we were still communicating directly with a number of employees with regards to the enterprise agreement.

PN1106

THE DEPUTY PRESIDENT: Sorry, how many was that in total?

PN1107

MS BEYNON: We have had two bargaining representatives, so Jenny Snell and the NUW, and then I have had direct conversations with a number of employees as part of the process, but - - -

PN1108

THE DEPUTY PRESIDENT: Just in terms of the number you just put to the witness - - -

PN1109

MS BEYNON: Approx 700 or more employees didn't have a bargaining representative. Can I just take you to paragraph 25 of your statement?‑‑‑Yes.

PN1110

That at the top is entitled that national employee consultation meetings?‑‑‑Mm.

PN1111

Can I just confirm, these meetings occurred before bargaining was concluded, is that correct?‑‑‑Before we released the final version of the enterprise agreements?

PN1112

Yes?‑‑‑Yes.

PN1113

Yes, okay. Before the final version, okay. If I just go to 11 March, top of the table, Redbank?‑‑‑Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1114

Are you aware of how many employees work at the Redbank facility?‑‑‑Not exactly, no.

PN1115

Would you be able to hazard a guess?‑‑‑It depends on the size of the store. Our retail stores can vary between five and 50 employees. It just depends on the size of the store.

PN1116

How many employees attended that consultation meeting on 11 March at Redbank?‑‑‑I didn't take attendance at these meetings, but I would guess around six people.

PN1117

I just want to go then - I'm going to go through the list. 11 and 12 March, we have the Logan meetings. Can you confirm how many people work at Logan?‑‑‑I think I've said about 80.

PN1118

Can you confirm how many people attended those meetings?‑‑‑Again, I didn't take attendance so I can't give exact numbers, but I would guess around 20 people.

PN1119

On 12 March, Novotel Brisbane Airport, how many employees were there?‑‑‑That one, I'm not sure of. I specifically remember Redbank and Logan, but I'm not sure of Novotel. I would say less than five.

PN1120

Less than five employees work there?‑‑‑Well, we held it at the Novotel as a central location for our employees who worked at sites around it. We don't actually have a store there.

PN1121

That's disappointing for the Novotel. Five employees attended that one forum?‑‑‑Yes, less than five. Yes.

PN1122

Less than five. Less than five, okay.

PN1123

MR BROWN: Deputy President, if it would speed things up, and I am happy to cooperate in this process, if the witness is simply guessing at the total number of people that may be at a named location, so long as it is on the basis that she is guessing in terms of the total number of people and giving her best evidence as to how many attended, I am happy for her to just go through it one by one. It might just speed it up.

PN1124

THE DEPUTY PRESIDENT: Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1125

MS BEYNON: I am going through it one by one.

PN1126

MR BROWN: No, just I am happy for you to just say - just let her go through each one of them, and she just simply says - just take an example, I think or I know at Mascot there's approximately x number of employees and 20 turned up at the meeting.

PN1127

MS BEYNON: Yes.

PN1128

MR BROWN: It will speed things up.

PN1129

THE WITNESS: Okay.

PN1130

MR BROWN: Well, it's not my question.

PN1131

THE DEPUTY PRESIDENT: Are you happy with that approach?

PN1132

MS BEYNON: Sure.

PN1133

THE DEPUTY PRESIDENT: Do you want to just start with - - -?‑‑‑Guess?

PN1134

Yes. Huntingwood and go through?‑‑‑Huntingwood, I think there is about 80 people and we had about 10 people in each session.

PN1135

MS BEYNON: That's 20 all up?‑‑‑Yes. Penrith, as I said, retail, it could vary. But I would guess 20 to 30 staff at that site and we had under 10 attend that session. Around 10. Mascot, we have probably 60 or 70 people. I would guess around 10 people attended that session as well.

PN1136

Auburn?‑‑‑Auburn, we have around 30 people. I would guess around 10.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1137

Len Thomas?‑‑‑Len Thomas, I forget what Talal said, but 80 to 90 people at Len Thomas and I would guess around five to 10 people attended that session. Fountain Gate would be around 50, and I would guess five to 10 people attended that session. Collins Street, we'd have around 15 to 20 people and I would guess around five people attended that session. Bulleen, we would have around 20 to 30 people and I would guess around five people attended that session. Same for Fawkner, so around 20 to 30 and around five. Whitford, we would have 50 to 60 people and I would guess around 10 - yes, five to 10 people attended that session. Myrrhee, we would have around 20 people and I would guess around five people attended that session. And Whitford, same number as before, but it was only around five people who attended that session.

PN1138

So 20 and five?‑‑‑Whitford - no, I think I said Whitford was around 50 people.

PN1139

Sorry, 50?‑‑‑Yes.

PN1140

And five attended?‑‑‑That's my guess.

PN1141

THE DEPUTY PRESIDENT: Sorry, how many do you think is at Redbank in total?‑‑‑I would guess around 30.

PN1142

And Brisbane Airport?‑‑‑It includes three sites, so I would guess around 40.

PN1143

Thank you.

PN1144

MS BEYNON: Just based on that evidence, it appears - and I am doing maths in my head very quickly, but it appears in general somewhere between 10 to 20 per cent of the workers at those facilities or within the surrounding facilities attended these meetings, is that correct?‑‑‑I haven't done the maths, so I'm not sure.

PN1145

Does that sound about right based on the numbers you have just given?‑‑‑I wouldn't want to guess. I'm not exactly sure. As I've said, I didn't take attendance at these sessions. It's all estimation.

PN1146

You'd agree with me, though, that attendance was quite low?‑‑‑We provided multiple opportunities for people to attend these sessions to receive more information. We also encouraged people to speak to their managers directly, so if people didn't attend the sessions that doesn't mean that they didn't get the information that they needed. They had plenty of opportunities and chances to get information about this agreement.

PN1147

Just in terms of these meetings, which are the employer's consultation meetings where - the consultation meetings about the EBA, quite a low amount of the employees were in attendance, correct?‑‑‑Not all employees attended, no.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1148

But it's a low number. You would accept that, wouldn't you?‑‑‑I would say not all employees attended. I don't know how you would measure low. I would just say that not all employees attended the meetings.

PN1149

It's not even 50 per cent, is it?‑‑‑I would agree that less than 50 per cent attended.

PN1150

It is probably not even 25 per cent?‑‑‑I would agree with less than 50 per cent.

PN1151

The numbers will speak for themselves at the end of the day?‑‑‑Yes, yes.

PN1152

If that's the case, it's quite possible there's hundreds of employees that didn't have any face-to-face contact in relation to the - sorry, I'm going back to the - the purpose of these meetings was to present the slideshow, is that correct?‑‑‑The meetings were held as a face-to-face session for the CEO and I to travel around the country to explain the enterprise agreement and give an opportunity for people to ask questions.

PN1153

The purpose of this was, in your view, to explain the EBA?‑‑‑Yes.

PN1154

It would be the case then, based on these numbers, that there's hundreds of employees who didn't attend these sessions?‑‑‑There's employees who didn't attend these sessions, but I don't think that means that they didn't have the information they needed because we communicated a lot by email, we provided the draft agreements, we gave our managers information and FAQs so they could facilitate a lot of these conversations directly. So there were lots of opportunities for our employees to get the information they needed.

PN1155

Do you have data on how many people opened those emails?‑‑‑No. It was just - it was sent from my email address.

PN1156

You didn't collect any read receipts or open data about that? Okay. Did you collect any data from managers about how many people they have spoken to?‑‑‑I didn't keep - no one asked to keep records, no. They were just asked to make sure they were available to answer questions and make sure that our employees had all the information they needed.

PN1157

I would like to just take you to paragraph 35. This is all after the good faith bargaining order part of this matter. There were - the agreement proceeded to be put to ballot, and after - the table here at the end of 35, these are forums held after bargaining concluded, is that correct?

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1158

MR BROWN: I object. Bargaining concludes with the ballot that the valid majority are approving. I think my friend has just got to use that non-technical term there.

PN1159

THE DEPUTY PRESIDENT: This is just before voting?

PN1160

MS BEYNON: Yes.

PN1161

THE DEPUTY PRESIDENT: Yes, and after actual negotiations cease.

PN1162

MS BEYNON: Yes.

PN1163

MR BROWN: Well, no, my friend actually hasn't even established that negotiations had ceased. If the proposition is were these opportunities in paragraph 35 prior to people casting their vote.

PN1164

MS BEYNON: It's not the question, but - - -

PN1165

MR BROWN: That's the admissible question.

PN1166

MS BEYNON: These employee teleconferences in this table here, these were set up after bargaining between the parties had come to an end?

PN1167

MR BROWN: No. My friend hasn't established that bargaining had come to an end. It's a very simple proposition. If what my friend is putting to the witness is were these opportunities made available to people prior to the actual vote that took place on 17 and 18 April, perfectly admissible, she can answer it.

PN1168

MS BEYNON: That's not the question I want.

PN1169

MR BROWN: Okay.

PN1170

MS BEYNON: Ms Parks, when did bargaining come to an end?‑‑‑When - the vote on 17 and 18 April.

PN1171

When did the parties finish bargaining?‑‑‑When we circulated the final agreement.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1172

What date was that?‑‑‑Well, I am just trying to find the actual date that we circulated the final agreement.

PN1173

If I can just take you perhaps above the table in paragraph 35 there?‑‑‑Yes.

PN1174

There's sort of - just below the midpoint there you have got a sentence that says, "Subsequent to the final bargaining meeting on 8 April." So final bargaining meeting on 8 April?‑‑‑Yes.

PN1175

You would agree that was the final bargaining meeting?‑‑‑That was the final official bargaining meeting we had with the NUW, yes.

PN1176

These teleconferencing opportunities were after the final bargaining meeting. That is correct, isn't it?‑‑‑The final bargaining meeting with the NUW, but bargaining continued up until we distributed the final agreement, which I don't have the date - or can't find the date that we circulated the final agreement prior to the vote.

PN1177

Who did bargaining continue with after the 8th?‑‑‑We - as I was explaining earlier, we were taking questions and feedback from employees throughout the process. So I can't specifically answer what changes we made, but bargaining continued up until we circulated the final agreement and went to vote.

PN1178

Bargaining with other bargaining reps?‑‑‑The final bargaining meeting with the NUW was on 8 April.

PN1179

And you've said you continued bargaining after that?‑‑‑We continued to have conversations with people. I am not sure if you are referencing the formal bargaining with our bargaining representatives, who were Jenny Snell (indistinct) and the NUW, or conversations that we were having as part of the consultation process prior to the circulation of the final agreement.

PN1180

Do you mean you continued to consult with employees after the 8th, or you continued bargaining after the 8th?‑‑‑The final bargaining meeting we had with the NUW was on 8 April, and we circulated the final agreement just prior to the vote.

PN1181

Did you continue bargaining after the 8th?‑‑‑Well, the last formal bargaining meeting was on 8 April.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1182

That's not the question. Can you just answer the question? Did you continue bargaining with anybody after the 8th?‑‑‑I'm not sure how to answer the question, because we didn't circulate the final agreement until just prior to the vote. If there were changes that were made to the agreement, it still could have occurred. That's why I am not really sure how you need me to answer the question.

PN1183

Are you talking about changing the document or are you talking about bargaining without the bargaining representatives?‑‑‑I am talking about formal bargaining in comparison to consultations we had during the consultation period and the circulation of the draft agreement.

PN1184

THE DEPUTY PRESIDENT: It appears from the F17 that the access period opened on 8 April. Is that your understanding?

PN1185

MS BEYNON: 8 April to the final agreement, is that - - -

PN1186

THE DEPUTY PRESIDENT: Yes.

PN1187

MS BEYNON: Right, okay.

PN1188

THE DEPUTY PRESIDENT: That was the same day you held the bargaining meeting with the NUW. Does that clear things up in terms of - - -

PN1189

MS BEYNON: ---Okay.

PN1190

THE DEPUTY PRESIDENT: Yes.

PN1191

MS BEYNON: So the final agreement was circulated on 8 April.

PN1192

THE DEPUTY PRESIDENT: Yes.

PN1193

MS BEYNON: Right. Thank you. These teleconferencing opportunities listed below, they occur after the agreement has been put out to vote?‑‑‑After the final agreement was circulated, yes.

PN1194

We've got - again, I am going to go through this line by line. I have got employee teleconference, 15 April, 9 am?‑‑‑Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1195

The top one?‑‑‑Mm.

PN1196

Can you confirm how many people participated in that?‑‑‑I opened up the line at 9 am and announced myself and asked if there was anyone on the line. I did that for every couple of minutes for approximately 30 minutes and then I ended the call. Nobody attended.

PN1197

Zero?‑‑‑Yes.

PN1198

Employee teleconference, 15 April, 12 pm?‑‑‑Yes.

PN1199

How many people attended?‑‑‑So I opened up the call at 12 pm, I announced myself and asked if anyone else was on the line. Did that every couple of minutes for 30 minutes. Nobody joined the call.

PN1200

Zero people?‑‑‑Yes.

PN1201

Employee teleconference, 16 April, 2 pm?‑‑‑So I opened up the call at 2 pm, announced myself and asked if anyone had joined the call. I provided that same information every couple of minutes for 30 minutes and nobody joined the call.

PN1202

Zero people, okay. And employee teleconference, 16 April 2019, 5 pm?‑‑‑Again, so I opened up the call at 5 pm, announced myself and asked if anyone had joined the call. I did that every couple of minutes until 5.30 and nobody joined the call.

PN1203

In the only forum during the access period after bargaining had concluded where employees could get information about the agreement and terms and the affects of that agreement, not a single employee participated?‑‑‑But we provided the opportunity, correct. Yes, nobody - people chose not to attend the call.

PN1204

You had no opportunity during these teleconferencing opportunities to explain the terms and the effects of the final agreement to the employees?‑‑‑Well, this - yes, during these calls nobody attended the sessions, no. But my understanding is that the face-to-face sessions that we held are still counted to explain the terms of the agreement.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1205

And hundreds of people didn't attend those, and nobody attended these?‑‑‑We provided plenty of opportunities for our people to attend these sessions and find out more information. We also gave information to our managers so they could answer questions directly.

PN1206

Yes, and you have got no records of the managers doing that or not doing that?‑‑‑I didn't ask them to keep records of the number of people they spoke to, but I know that they did speak to employees and answered questions directly.

PN1207

Just to make sure we're all clear though, after bargaining had concluded in terms of creating a forum where people can ask and have explained to them the terms of the agreement and the effect of those terms, not a single employee was there?‑‑‑No employees attended the sessions.

PN1208

Thank you.

PN1209

THE DEPUTY PRESIDENT: Was there any changes to the agreement between the meetings on the 11th and 21 March that arose from (indistinct)?‑‑‑In the letter that we sent on 8 April, SP6, it says the attached NEA is identical to the copy of the NEA provided to the copy of the NEA provided to you on 18 March. That letter was sent on 8 April.

PN1210

That was the basis of the PowerPoint?‑‑‑The PowerPoint presentations we did, yes.

PN1211

MR BROWN: Could I - just in case there is some confusion here, when one looks at the orders that were made, the bargaining orders on 28 March by McKinnon C, I think it just - I think we all have to proceed on the basis, and no one has a contention to the contrary. But what those did was it extended the initial access period. If you look at those orders, my client had basically gone live. The union had made an application for bargaining orders to effectively stop the ballot. The access period wasn't terminated. It was in effect extended, and then the Commission made directions with respect to additional bargaining meetings. I just don't want anyone, including the Commission, to be at cross purposes on that. It was a strange situation in that the orders that were made by the Commission on 28 March, and that is in the decision print number 2009 in FWC2071, it had the legal effect of extending the period.

PN1212

THE DEPUTY PRESIDENT: Yes.

PN1213

MR BROWN: And requiring the bargaining representatives to meet twice in that period. There is no contention that that didn't happen.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1214

THE DEPUTY PRESIDENT: When do you say the access period started?

PN1215

MR BROWN: The access period would have started when my client initially put the document out for ballot, and all that the Commission did was to then require the parties to have two further meetings and - the wording of order number 6 was restraining the conduct of the ballot for a period of 20 days to allow the additional two bargaining meetings to occur. And just so that we are all on the one page, and I am not answering the question for witness, the document didn't change.

PN1216

THE DEPUTY PRESIDENT: Yes. Thank you.

PN1217

MR BROWN: I think my friend tells me it would have been 18 March but for the extension of the Fair Work Commission.

PN1218

THE DEPUTY PRESIDENT: The ballot would have been 18 March or the - - -

PN1219

MR BROWN: No, no, the access period would have commenced on 18 March.

PN1220

THE DEPUTY PRESIDENT: Commencement, yes.

PN1221

MR BROWN: But for the - - -

PN1222

MS BEYNON: The Commission's intervention.

PN1223

THE DEPUTY PRESIDENT: Sorry Ms Beynon, is that an appropriate time?

PN1224

MS BEYNON: Yes, that's fine.

PN1225

MR BROWN: Do you have a copy of that decision?

PN1226

THE DEPUTY PRESIDENT: I do, I just haven't put all the dates together in my head.

PN1227

MR BROWN: I could give your associate the - - -

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1228

THE DEPUTY PRESIDENT: Yes. I think it's in your material, or it's certainly in the union's material.

PN1229

MR BROWN: That is a convenient time, and we understand the obligations on the witness.

PN1230

THE DEPUTY PRESIDENT: Yes. Come back at 10 to 12.

<THE WITNESS WITHDREW [11.32 AM]

SHORT ADJOURNMENT [11.32 AM]

RESUMED [11.59 AM]

PN1231

MS BEYNON: Thank you, Deputy President.

<SALLY ANNE LOUISE PARK, RECALLED [11.59 AM]

CROSS-EXAMINATION BY MS BEYNON, CONTINUING [11.59 AM]

PN1232

MS BEYNON: Ms Park, I'd just like to take you to paragraph 60?‑‑‑Sorry?

PN1233

60(b)?‑‑‑Yes.

PN1234

You state there that you don't agree with the calculations that Ms Minhas has performed?‑‑‑Yes.

PN1235

Do you have a copy of Ms Minhas's attachments?‑‑‑No.

PN1236

The sample calculations that you're referring to, they're the ones on the last couple of pages?‑‑‑These ones? Yes, I've got those.

PN1237

Yes - that's what's referred to in your witness statement?‑‑‑Yes.

PN1238

So why are they inaccurate?‑‑‑We have some differences in the rate of pay that's used. Ms Minhas has used a level three, whereas we have benchmarked against a level two. There are also some issues with how the loadings are calculated, in example, on a public holiday.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1239

So but for the public holiday, which we'll get to in a minute, and but for the classification, which is still a subject of dispute, are they the only two issues?‑‑‑My statement goes into a bit more detail around the other issues, which we can speak to.

PN1240

I'm just addressing at the moment - you say they're inaccurate, is your evidence that they're inaccurate?‑‑‑Yes.

PN1241

So what in this GSA is inaccurate?‑‑‑The level that's being used - - -

PN1242

Yes?‑‑‑ - - - and some of the loadings that are applied. We go into more detail there towards - subsequent paragraphs in my statement around examples of where it's incorrect.

PN1243

THE DEPUTY PRESIDENT: So are we starting at employee one, the loading?

PN1244

MS BEYNON: I've got starting at employee one, Logan.

PN1245

THE DEPUTY PRESIDENT: Based on a level three?‑‑‑Mine is employee four, Len Thomas; employee one, Logan.

PN1246

MS BEYNON: Attached to those calculations is a sample of rosters, correct?‑‑‑Yes, there are photocopies of rosters.

PN1247

You'd accept that they're rosters from Logan and Len Thomas?‑‑‑They look similar to rosters that I have from Logan and Len Thomas.

PN1248

Yes, okay. They contain employee names that work at those areas?‑‑‑I don't know all the employees that work for us but some of the names are familiar.

PN1249

So you would accept that these are copies of rosters from Krispy Kremes? Okay. When we look at these rosters - and I'll just take you to the front page - - -?‑‑‑Fountain Gate at the top?

PN1250

Fountain Gate at the top?‑‑‑Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1251

So we can see in these rosters, for example, that I've got - go to the top one here; down the bottom I've got Samaya and Samaya here, running across the bottom line, she works 9 at night to 5 in the morning, 4 to 12 and then she works 3 to 11?‑‑‑Yes.

PN1252

So they're hours that would fall within an afternoon shift loading under the award, is that correct?‑‑‑I don't exactly know the specific hours that apply for the Manufacturing Award and when overtime - afternoon hours kick in or night-time loadings kick in.

PN1253

Okay, so you would agree that they're hours - you would agree that those are the hours that person is working and that she is working on a Saturday and a Sunday?‑‑‑Yes.

PN1254

She has three shifts? All right. Keeping going down here to the bottom one, where we're got processing workers?‑‑‑Yes.

PN1255

Across, we've got four down there somebody called April?‑‑‑Yes.

PN1256

April has shifts just on a Saturday and a Sunday?‑‑‑Yes.

PN1257

They go from 4 till 12?‑‑‑Yes.

PN1258

Would you accept that under the award they would both attract penalties for Saturday and Sunday?‑‑‑Yes.

PN1259

And that they would both be afternoon shift loading?‑‑‑I'm not exactly sure what time afternoon shift loading starts in the award but I believe there is an afternoon shift loading, yes.

PN1260

Again, if we go across down to Janice, a couple more down, we're seeing again a 4 till 12, 4 till 12, 4 till 12, 5 till 1, 6 till 2?‑‑‑Yes.

PN1261

Under the award, it's likely, isn't it, that would attract either an afternoon or a night shift loading?‑‑‑Yes, I believe so.

PN1262

Just flip the page, so we're going across to shippers and pallets workers here.

PN1263

MR BROWN: Don't want to interrupt my friend; I'm assuming my friend is asking these questions on the basis that in each case it is a crew member?

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1264

MS BEYNON: I established that these are Krispy Kreme members.

PN1265

MR BROWN: I don't think you've established that. If it's being put to the witness that they are Krispy Kreme members, I'm happy for that to be an assumption but it hasn't been established. We don't know that for a fact.

PN1266

THE DEPUTY PRESIDENT: Do you want to establish that?

PN1267

MS BEYNON: Sure - the shipping and pallet workers, they are Krispy Kreme crew members, is that correct?‑‑‑They could be but I'm not sure. I see one person who I think is a team leader on that list, that might be allocated to do those tasks for a particular reason.

PN1268

Okay?‑‑‑But I can't confirm, you know, 100 per cent that they're all Krispy crew.

PN1269

Okay. If we look at the top here, we've got somebody called Aceh?‑‑‑Yes.

PN1270

Aceh just gets a shift on Saturday and Sunday, is that correct?‑‑‑That's correct.

PN1271

You go a couple more down, we've got Fahes and Fahes just gets a Saturday and a Sunday shift as well?‑‑‑That's correct.

PN1272

Perhaps if we continue on we can see that there are workers so Fumballa and Tashi, who work 11 till 9, which could be considered an afternoon shift; then we have workers who are working past midnight as well.

PN1273

THE DEPUTY PRESIDENT: Which name is that, sorry?

PN1274

MS BEYNON: We have got workers who are working on afternoon shift; so if we look down at Shakara, 6 to 4, but then 2 till 10, 2 till 10, 2 till 10, 2 till 10.

PN1275

THE DEPUTY PRESIDENT: Thank you.

PN1276

MS BEYNON: Across the page, in processing, see that the two workers, Melissa and Carl, down the bottom there; they're working 11 till 7, 11 till 7, 11 till 7?‑‑‑Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1277

That could fall under the definition of an afternoon shift under the award. Okay. So when we look at these rosters, as we have done, you'd accept that there are employees who work on hours that would be considered either afternoon shift or night shift under the award?‑‑‑Yes, we do employ workers to do those hours.

PN1278

You employ workers to do those hours. It appears based on what we've looked at, they do them frequently?‑‑‑This is only a week's roster.

PN1279

Yes?‑‑‑So the hours can vary from week to week and our employees do work a variety of shifts and hours across each week of the roster period.

PN1280

But it's nonetheless accepted that it's a production environment and there's people required to work hours that would be afternoon shift hours or would be night shift hours under the award?‑‑‑Yes, we do employ people to do those hours.

PN1281

It's also accepted - isn't it, looking at these rosters as we have - that there are people rostered on to do Saturday and Sunday shifts only?‑‑‑In these particular week - - -

PN1282

In this particular week?‑‑‑ - - - yes.

PN1283

So I believe we looked at three people in this sample. In the sample we looked at we looked at least three people?‑‑‑Yes, but we haven't looked at the same employees across different weeks to compare the other shifts that they might also work.

PN1284

No, but it is a roster pattern that exists.

PN1285

MR BROWN: No, it hasn't been established that there is a pattern. The objection - - -

PN1286

MS BEYNON: You are able to - the company is able to - roster employees on a Saturday and Sunday, correct?

PN1287

MR BROWN: No. Maybe my objection needs to be dealt with before my friend jumps to the next question.

PN1288

THE DEPUTY PRESIDENT: Yes, what is it?

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1289

MR BROWN: Witnesses' evidence is it's about a week. Then I think the word she then used - it was put to her that there was a pattern. She hasn't established that there is a pattern.

PN1290

MS BEYNON: I can keep going through them.

PN1291

THE DEPUTY PRESIDENT: Is it just the case that this is a sample roster that's indicative of other rosters that occur on a regular basis?

PN1292

MR BROWN: That's a better question and that's admissible.

PN1293

THE DEPUTY PRESIDENT: Yes?‑‑‑Our employees provide their availability and they work a variety of shifts each week, depending on their availability and the number of hours in the roster. So it can change week to week, the days and hours that they work.

PN1294

THE DEPUTY PRESIDENT: But these are effectively sort of some form of a regular roster arrangement for these people? I mean, I don't mean, "regular", in the sense of exact rosters but this is the sort of roster that would be - with variations - but it's the sort of roster that would exist in the operations of these two sites?‑‑‑Yes, with variations, yes; these are the sorts of hours that people would work.

PN1295

Yes. So, Ms Beynon - sorry.

PN1296

MS BEYNON: No, that's fine. Your rostering principles - rostering principles 3 - that says that you set the roster weekly?‑‑‑Yes.

PN1297

Yes, so in a given weekly cycle that we've looked at - it's a weekly roster - you'd accept that there's afternoon shifts, shifts that would be considered afternoon shifts under the award, shifts that would be considered night shifts under the award and there are shifts where people just work a Saturday and Sunday?‑‑‑Yes. May I please have a copy of the national enterprise agreement? Sorry.

PN1298

MR BROWN: Just while the witness is getting it, I think she should also have a copy of the existing agreement because we keep flipping between agreements without too much specification.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1299

THE DEPUTY PRESIDENT: What's the document the witness has just been handed?‑‑‑I've a copy of the national enterprise agreement 2019 and then a copy of the original workplace agreement.

PN1300

THE DEPUTY PRESIDENT: Thank you.

PN1301

MR BROWN: It should be the document in EF16.

PN1302

THE DEPUTY PRESIDENT: Yes, it's there?‑‑‑So these employees are currently rostered under the collective workplace agreement and are rostered according to the rostering principles in that agreement. In the new - the enterprise agreement that we are trying to get approved we have introduced a rostering principle that Krispy Kreme rostering principle 6: "Krispy Kreme will ensure that store staff and stand-alone facility staff will not be rostered to work on at least one Saturday and two Sundays each calendar month unless otherwise agreed."

PN1303

MS BEYNON: But it's still a weekly roster cycle, is that correct?‑‑‑Yes, it is a weekly roster.

PN1304

So in this weekly roster cycle, there are three people who've got Saturday and Sunday?‑‑‑Yes, and they're currently employed under the collective workplace agreement.

PN1305

Yes. The rosters we looked at, they're indicative of the production rosters?‑‑‑Well, yes; employees in production work a variety of shifts and hours depending on the amount of doughnuts that need to be made.

PN1306

Can I just take you to paragraph 75 of your statement? You essentially say here that with respect to Ms Minhas's statement that she hasn't had regard, proper regard, to the enhanced benefits. If I turn over the page, page 23, you've got a table there of enhanced benefits; more beneficial?‑‑‑Yes.

PN1307

You've got a copy of that? All right. Let's go through this one: first I'm going to start with not the top one, but with the minimum increase in minimum rates, guaranteed increase in minimum rates of pay. So you've said it's 1.5 per cent for each of year of the agreement if approved and there is no equivalent provision in the award?‑‑‑Yes.

PN1308

You'd accept, however, that there are minimum wage increases that pass on through the award, wouldn't you?‑‑‑There are wage reviews, yes, under the award.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1309

The national minimum wage case - that happens every year and they will set a percentage increase?‑‑‑Yes, but there is no equivalent provision to this particular one in the award.

PN1310

There's no guaranteed increase?‑‑‑Yes.

PN1311

But you'd accept that award-based employees do get an increase each year?

PN1312

MR BROWN: I object. I don't think that can be put to the witness. That's for the Fair Work Commission to determine. It could be zero. The witness can't answer that question. The question could be put, in her experience have the modern award minimum rates increased? She might know about that. The question that is being put to her suggests that in the future, there is an automatic increase under the national wage principles. I might be showing my age there by calling them national wage principles but there's not a presumption.

PN1313

THE DEPUTY PRESIDENT: Ms Beynon, do you want to rephrase the proposition?

PN1314

MS BEYNON: Are you aware of whether there has been a national minimum wage increase since the making of this agreement?‑‑‑Yes.

PN1315

Are you aware of how much that is?‑‑‑No.

PN1316

You're not sure?‑‑‑No, not as a dollar or percentage term, no.

PN1317

Okay, all right - are you aware that it's more than the increases in your agreement?‑‑‑I'm not sure. I'm not aware of the percentage that the Fair Work Commission applies.

PN1318

I put it to you that it was a 3 per cent increase, which is substantially higher - - -

PN1319

MR BROWN: Again, I object to that. It's a 3 per cent increase in the minimum rate of the award. It's not a 3 per cent increase. That's just wrong. The national wage decision, again showing my age, is not a 3 per cent wage increase. It is a - if it were 3 per cent - 3 per cent increase in the minimum rate of the award rate. So if it's being rolled up as a proposition to the witness, it should be put correctly. It's a complete misstatement.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1320

THE DEPUTY PRESIDENT: I understood it that the Commission's increase at 3 per cent is higher than 1.5 under the agreement, only to the extent of the percentage, not the dollar figure.

PN1321

MR BROWN: Yes, but, Deputy President, it's a percentage increase per se. The worker show gets the benefit of that, it's the minimum rate in the award that gets increased. I put it this way: when the national wage decision comes down - again, probably using the wrong expression - it doesn't say every worker gets a 1.5 per cent increase. The national wage decision is a 1.5 per cent increase in the minimum rate in the modern award. What was being put to this witness - - -

PN1322

THE DEPUTY PRESIDENT: - - - was standard rate.

PN1323

MR BROWN: Standard rate - I think what was being put to this witness was that the national wage decision gives people a 3 per cent wage increase. It doesn't. It doesn't.

PN1324

THE DEPUTY PRESIDENT: Again, I'm understanding it that the 1.5 is below par to the percentage in the award, whatever that might be.

PN1325

MS BEYNON: Yes.

PN1326

THE DEPUTY PRESIDENT: But I don't know - - -

PN1327

MR BROWN: The BOOT test is - I'm getting into submission mode but the BOOT test is a moment in time.

PN1328

THE DEPUTY PRESIDENT: Yes.

PN1329

MR BROWN: I think we're all agreed on that point. My friend can speculate as to what might happen in the future and put it to the witness but it's not going to assist the Commission because you make your decision based upon, in this case, the rates that were pre-July, obviously. We're all aligned on that particular point. But what is being put to this witness was not correct. What was put to the witness was that the national wage decision gives someone a 3 per cent wage increase. It doesn't.

PN1330

THE DEPUTY PRESIDENT: Yes, well, again do you just want to reframe the question or move on?

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1331

MS BEYNON: I think I'm happy to move on.

PN1332

THE DEPUTY PRESIDENT: Yes.

PN1333

MS BEYNON: I think the point has been made but while we're making submissions, obviously future increases under the award are matters that the Commission can turn their mind to, in the assessment of whether the agreement is better off overall.

PN1334

MR BROWN: No, that's not - we don't accept that submission.

PN1335

MS BEYNON: (Indistinct) that effect.

PN1336

THE DEPUTY PRESIDENT: Yes, we'll deal with that at closing.

PN1337

MS BEYNON: I just want to go now to enhanced compassionate leave, which is a couple more down?‑‑‑Yes.

PN1338

Looking across the table, that doesn't apply to casual employees, does it?‑‑‑No.

PN1339

This would only benefit someone if the circumstances to the entitlement were made out, is that correct?‑‑‑That's correct.

PN1340

So in effect, someone would have to die or be very, very sick for an employee to access this?‑‑‑Yes.

PN1341

Do you have any data on how many employees have accessed an entitlement like this?‑‑‑No.

PN1342

I'll go to the next one: access to paid parental leave. You've got six weeks for store and stand-alone staff and 12 weeks for store management, et cetera?‑‑‑Yes.

PN1343

So this also doesn't apply to casual employees, does it?‑‑‑Not the paid leave component, no.

PN1344

Again, that benefit would only arise if the circumstances came into play?‑‑‑Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1345

So it's not an entitlement that anybody can access; it's an entitlement only if the circumstances came into play. You became pregnant or you're adopting a baby?‑‑‑Yes.

PN1346

Over the last four years, do you have any data on how many people have accessed this?‑‑‑No, but it's a benefit that we're proud to offer.

PN1347

So just access to paid secondary carers' parental leave, two weeks; again, that is not available to casual employees, is it?‑‑‑Not the paid component, no.

PN1348

Again, this would only arise - this benefit would only arise - if the circumstances arose as well?‑‑‑Yes.

PN1349

So again, not everybody could access this entitlement?‑‑‑(Indistinct) to secondary carers.

PN1350

Yes, yes. It's only if the circumstances - the preconditions - to that were made out, that somebody can access it. So it's not for all employees. Okay, guaranteed minimum bonus payments?‑‑‑Yes.

PN1351

So they're just for store management?‑‑‑Assistant managers and managers, yes.

PN1352

All store management, yes; so not stand-alone?‑‑‑No, it's included for them as well.

PN1353

So not Krispy Crew?‑‑‑No, it's only for people who are classified as assistant managers or managers.

PN1354

Yes, so not Krispy Crew?‑‑‑No, because they're not classified as - - -

PN1355

And not team leaders?‑‑‑No.

PN1356

It doesn't apply to them at all?‑‑‑No, it's only for assistant managers and managers.

PN1357

They get no benefit out of that?‑‑‑No, but assistant managers and managers get a guaranteed minimum bonus payment.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1358

Yes. Employee referral benefits?‑‑‑Yes.

PN1359

Again, this would apply only - employee would only gain access to this if they referred someone and the other preconditions were made out, is that correct?‑‑‑Yes.

PN1360

Do you have any data about how many people have taken this?‑‑‑Not specific data but we do have a lot of employees who are referred to us and join us as a consequence of that.

PN1361

Do you know how many people have gotten their $250?‑‑‑Not exactly, no, but I would guess it would be 10 to 20 employees a month who would receive that referral bonus.

PN1362

Are they generally production employees?‑‑‑It's only available to people who weren't involved in the recruitment process that you would exclude management and would apply to Krispy Crew or team leaders in most cases.

PN1363

Do you know of that 10 or 20 how many of those were production workers?‑‑‑No.

PN1364

So it could be more or it could be none?‑‑‑I don't know.

PN1365

Free doughnuts - this is a non-monetary item?‑‑‑As in they don't have to pay for it?

PN1366

Doesn't give them any monetary benefit?

PN1367

THE DEPUTY PRESIDENT: Doesn't free doughnuts mean they - it just passes the BOOT?

PN1368

MS BEYNON: It's not a monetary entitlement, it's a - - -?‑‑‑No, but it's a benefit we do offer to our employees. They can take doughnuts home at the end of their shift.

PN1369

So if an employee doesn't want to eat doughnuts or they're on a diet or they've got a gluten intolerance there's no benefit for them, is there?‑‑‑They all have family members that want the doughnuts and they take them.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1370

THE DEPUTY PRESIDENT: Are they the good doughnuts or the bad doughnuts?‑‑‑Pardon?

PN1371

Are they the good - - -?‑‑‑The good doughnuts.

PN1372

MR BROWN: There's no such thing as a bad doughnut, Deputy President.

PN1373

MS BEYNON: But if I chose not to access the doughnuts, because I'm trying to kick sugar or something, I wouldn't get the benefit of those?‑‑‑I think it would be unusual for us to not have people who didn't take the supplementary doughnuts. It's a very exciting benefit for our people.

PN1374

Right. So you're suggesting that free doughnuts can offset the non-provision of, for example, afternoon shift loading or whatever?‑‑‑I'm saying it's part of the package of the enhanced benefits that we offer under the enterprise agreement and I would suggest that a number of our employees like the benefit and enjoy the free doughnuts.

PN1375

But you're saying that is compensating - not just giving them to them - you're saying here that it's compensating them for other things they don't get under the agreement?‑‑‑It's part of the enhanced benefits that we're offering.

PN1376

Free beverage on shift?‑‑‑Yes.

PN1377

Who does that apply to?‑‑‑All employees.

PN1378

Including production workers?‑‑‑Production workers, because there isn't a retail facility for people who work at the stand-alone facilities, they can go to any of our stores and get free drinks if they wish to, which they do.

PN1379

Right, so they need to go somewhere else from their place of work and access it?‑‑‑Yes, because the stand-alone facilities there's not a retail operation.

PN1380

So that would be more beneficial to people working in the stores?‑‑‑I suppose so.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1381

Again, I'm trying to kick sugar, I don't want these free things; it wouldn't be a benefit to me under - - -?‑‑‑It's an enhanced benefit that we're offering. People are entitled to receive a Krispy Kreme beverage, which is a milkshake or a coffee if they wish when they're on shift.

PN1382

But it's optional; it's not there providing any monetary benefit, something I would have to choose?‑‑‑They can choose to take it.

PN1383

You can choose to take it or leave it, okay. Access to discounted merchandise?‑‑‑Yes.

PN1384

Who does that apply to?‑‑‑All employees.

PN1385

Again, this is optional - if I don't want any discount merchandise, I don't have to take it?‑‑‑Yes, I mean, it's obviously optional if people want to purchase discounted merchandise but we also give out free merchandise sometimes and last year we gave out a Christmas hoody to all the employees.

PN1386

But you're not saying a free hoody is an enhanced benefit, are you?‑‑‑I'm packaging it under discounted merchandise and including it as part of the enhanced benefits.

PN1387

You're saying that it compensates for - partially compensates for - the lack of other entitlements to access discounted merchandise?‑‑‑Yes, I'm saying it's part of the enhanced benefits that we offer.

PN1388

And it's entirely optional?‑‑‑To purchase the discounted merchandise is optional and we also do occasionally provide free merchandise as well to our employees.

PN1389

So I'm a Krispy Crew member and I don't want to refer somebody, I don't want free doughnuts, I don't want free beverages, I don't want discounted merchandise - these aren't enhanced benefits for me, are they?‑‑‑I think it's unlikely that an employee wouldn't use any of the enhanced benefits but we also are offering materially higher base rates of hourly - base hourly rates of pay to our employees as well. That's part of the enhanced benefits that we're offering.

PN1390

THE DEPUTY PRESIDENT: The merchandise, what is it? Is it T-shirts?‑‑‑T-shirts, yes; jumpers, hoodies.

PN1391

Okay.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1392

MS BEYNON: Part 9, additional benefits: one additional paid leave day per year. That's a monetary entitlement but that doesn't apply to everybody, does it?‑‑‑That applies to store management, yes.

PN1393

That's a store management, stand-alone facility management?‑‑‑Yes.

PN1394

That doesn't apply to Krispy Crew?‑‑‑No.

PN1395

It doesn't apply to team leaders, okay. Let's just go back over the other page again. Up here somewhere, we've got rostering principles 6 and 7?‑‑‑Yes.

PN1396

So rostering principle 7 and you've got there - - -?‑‑‑Yes.

PN1397

MR BROWN: Are we dealing with the new agreement here or - - -

PN1398

MS BEYNON: The new agreement, yes; we're talking about the entitlements under the agreement. Says words to the effect of, "Management will not be rostered to work on at least one Saturday and two Sundays of each month"?‑‑‑Yes.

PN1399

So that applies just to management?‑‑‑That particular rostering principle 7, yes, applies to management.

PN1400

It doesn't apply to Krispy Crew or team leaders?‑‑‑Rostering principle 6 applies to Krispy Crew and team leaders.

PN1401

So that says effectively the same thing, yes?‑‑‑Yes.

PN1402

So why is that more beneficial than the award?

PN1403

MR BROWN: I think my friend has got to establish what is the award benefit that the witness has been - - -

PN1404

MS BEYNON: The award states - - -

PN1405

MR BROWN: Put it to the witness.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1406

THE DEPUTY PRESIDENT: Well, I mean, hasn't the witness done this assessment? So can't she answer that if she needs to go further than - if she needs to reference something else then - - -

PN1407

MR BROWN: Maybe the witness needs a copy of the award with her as we're speaking.

PN1408

MS BEYNON: It's the award. She's done the assessment based on the award.

PN1409

MR BROWN: If the witness is comfortable, I'm comfortable.

PN1410

MS BEYNON: You've done this assessment based on the enhanced benefits under the agreement and the award, that's correct?‑‑‑Yes.

PN1411

So you've said for rostering principle 6 here that there is no equivalent provision under the award?‑‑‑Yes.

PN1412

But under the food, beverage and tobacco award you're aware that the spread of hours is Monday to Friday?‑‑‑At the - yes.

PN1413

So for production workers it's not really a benefit?‑‑‑Well, I'm saying that those particular rostering principles, 6 and 7, there is no equivalent provision in the food and bev award.

PN1414

There is no equivalent provision in the food, bev and tobacco award about this Saturday and Sunday off because under the food, bev and tobacco award the span of hours is Monday to Friday for production workers?‑‑‑Okay.

PN1415

I'm putting to you that it's not a benefit for them to get off two Sundays a month or one Saturday a month because under the award they wouldn't have to work them anyway?‑‑‑I would disagree and say that there is no equivalent provision, which is why we've listed it as a beneficial term in comparison to the modern award.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1416

But knowing that the modern award says the span of hours doesn't include Saturday and Sunday, you can see now that this clause would not be a benefit to an employee who wouldn't otherwise have to work Saturday and Sunday at all?‑‑‑I'm not sure about that. I don't think I can answer that. All I'm comfortable saying is that we have put in rostering principles 6 and 7 in our enterprise agreement and rostering principles 6 and 7, there is no equivalent provision to that - - -

PN1417

But this is your assessment against the award, correct?‑‑‑Yes.

PN1418

You did this assessment, yes? So in assessing on balance what is more beneficial, what is less beneficial, the food, bev and tobacco award is a span of hours, days; Monday to Friday ordinary hours. Saturday and Sunday - they don't have to work Saturdays and Sundays?‑‑‑If that's what's in - - -

PN1419

In your agreement Monday to Sunday?‑‑‑Our employees are required to work from - well, we produce product, make product fresh every day.

PN1420

Yes?‑‑‑So our employees do work Monday to Sunday; both our instore staff and our stand-alone facility staff can work across those hours.

PN1421

So I put it to you it's not a benefit for food production workers to get a rostering principle that actually requires them to work Saturday and Sunday?‑‑‑Okay, well, if that's your opinion but - - -

PN1422

I'm putting it to you for your opinion?‑‑‑That it's not a benefit, that they still have to work Saturdays and Sundays?

PN1423

Yes?‑‑‑It's what our business requires, is that they do - you know, we do operate on Saturday and Sunday. So whether it's - I'm still saying that there is no equivalent provision, particularly for 6 and 7, under the - - -

PN1424

So the business requires them to work Saturday and Sunday and that is in fact a detriment?‑‑‑Well, the business - - -

PN1425

MR BROWN: A detriment compared to what?

PN1426

MS BEYNON: The award.

PN1427

MR BROWN: The award doesn't include - - -

PN1428

MS BEYNON: This is - - -

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1429

MR BROWN: - - - a person being employed on a Saturday or a Sunday. Your questioning seems to be based on a premise that a person covered by the award could not be rostered on a Saturday or a Sunday. That hasn't been established either.

PN1430

MS BEYNON: It's Ms Park's analysis that it is more beneficial under the agreement and I'm simply seeking to understand and to have her respond to - - -

PN1431

THE DEPUTY PRESIDENT: I think she has responded. It's a matter of submission. Well, Ms Parks, is it the case you're saying the award is the ordinary hours Monday to Friday?‑‑‑Yes.

PN1432

Therefore, if the new enterprise agreement provides for Monday to Sunday, which extends the days, do you say that's a more beneficial arrangement for the employee concerned? I mean, putting aside the operations of the business - or do you say that's, with your rostering provision, it's more beneficial?‑‑‑I find that quite hard to answer because our business does operate from Monday to Sunday and I understand that the ordinary hours per the food and bev award is Monday to Friday. We've introduced these specific rostering principles, 6 and 7, to support that.

PN1433

To ameliorate the extension of the ordinary hours, would you say?‑‑‑Ameliorate meaning soften?

PN1434

Meaning soften, yes?‑‑‑I suppose so.

PN1435

Yes, right. Thank you.

PN1436

MS BEYNON: Out of the enhanced benefits that we have just gone through, I put it to you that many of those enhanced benefits don't apply to Krispy Crew or team leader workers?‑‑‑No, I wouldn't say many of them.

PN1437

Okay, we'll go through them again?‑‑‑Well, they can access the compassionate leave; they can access the paid parental leave if they are full-time or part-time Krispy Crew; they can access the secondary parental leave; they can access the additional benefits from part 9 on the second page and they also have the benefit of the higher base hourly rate of pay.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1438

Okay, so there is a suite of benefits that Krispy Crew can't access. There's a suite of enhanced benefits that casual employees can't access and I put it to you that a lot of those enhanced benefits are very unlikely to crystallize within the life of the agreement for many employees?‑‑‑I don't agree with that.

PN1439

So would you then say that many employees would gain access to paid secondary carers' leave during the life of the agreement?‑‑‑You started off by saying that Krispy Crew employees wouldn't receive the majority of these benefits. But Krispy Crew employees can still be full-time or part-time employees and those benefits do apply to a number of those people.

PN1440

But the question is it's not likely, is it, that for enhanced compassionate leave, that many employees are going to get any access to that? They're not going to need to use that entitlement during the life of the agreement?‑‑‑I can't answer that but the benefit is there should they need to use it.

PN1441

Yes, but it's unlikely that many employees - - -?‑‑‑I can't answer that. The benefit is there if people choose to use it. I can't answer how many people would take it up or not.

PN1442

You're head of human resources?‑‑‑Yes.

PN1443

Do you have any idea of how many people have used that in the last three years?‑‑‑No, I don't report on it.

PN1444

Access to paid parental leave; it's unlikely, isn't it, that many Krispy Crew members or team leaders would gain access to that over the life of the agreement, isn't it?‑‑‑I can't answer that specifically, how many people would have access to it, but our Krispy Crew team leaders and management all have access to paid parental leave and secondary carers' leave entitlements if they are in a position to use them.

PN1445

I put it to you again that very few employees will access many of these contingent entitlements during the life of the agreement?‑‑‑I can't agree with that statement. We offer a number of enhanced benefits, including a higher base salary rate of pay and a number of contingent benefits and other benefits that people can access during the agreement.

PN1446

So with respect to the contingent benefits, it's the case, isn't it, that very few people will access them during the life of the agreement?‑‑‑No, I can't agree with that. I don't think I'm in a position to answer to the number of people that would access these benefits.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1447

You don't agree with it or you're not in a position to answer it?‑‑‑I don't agree with the statement that very few would utilize it.

PN1448

But you have got no data to support it?‑‑‑Not on me, no.

PN1449

MR BROWN: One question goes into the future and the other goes into the past.

PN1450

MS BEYNON: These assessments are required for the Commission to assess the benefits. Can we go to paragraph 74 of your statement, please?‑‑‑Yes.

PN1451

74, there is a long list of matters there which were raised during bargaining. You'd agree that those were matters - sorry, that these are the matters that Ms Minhas noted in her witness statement?‑‑‑Yes.

PN1452

Are these, if you recall, more or less the same concerns put to you during the bargaining meetings with the NUW?‑‑‑I can't remember specifically but there are some ones that I'm familiar with.

PN1453

With respect to things like a meal allowance - submission H down there - it's the case that work circumstances will arise in a production facility where people will become entitled to a meal allowance under the award, is that correct?‑‑‑I'm not sure what the terms of the award are in order to access a meal allowance.

PN1454

THE DEPUTY PRESIDENT: Can the witness be provided with a copy of the award?

PN1455

MS BEYNON: Sure.

PN1456

MR BROWN: I think if there's a question going to be put to the award you should refer to it and the witness should have an opportunity to at least look at it.

PN1457

MS BEYNON: The question is whether the circumstances arise. I'll start with another question: back to 74, those concerns that Ms Minhas - you restated of Ms Minhas there, you'd accept that these are areas in the 2019 NEA where they are less beneficial than the award, is that correct?‑‑‑These are items that are outlined as concerns that are in the food and bev award and we don't specifically reference in our agreement but we also in our agreement have a higher base hourly rate of pay which should work to compensate for these.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1458

Ms Park, have you done any analysis based on your rosters, your higher base rate of pay and the award to show that the materially higher rate covers all of these?‑‑‑Yes, we have.

PN1459

You have done an analysis?‑‑‑Yes.

PN1460

But it's not before the Commission?‑‑‑No.

PN1461

Right. I'll take you to paragraph 80, which talks about Ms Minhas's statement at 27 through to 36?‑‑‑Yes.

PN1462

Ms Minhas here talks about hours under the agreement, so between 5 and 12 you get an ordinary base rate. Comparison under the award you would get a 12.5-hour shift loading?‑‑‑I don't have a copy of her statement but yes, if that's what it says. I haven't got a copy of - I haven't got a copy of the attachments. Thank you.

PN1463

So Ms Minhas is outlining the award versus the agreement in that analysis, isn't she?‑‑‑From 27 to 36?

PN1464

Yes?‑‑‑She is outlining where she believes the agreement doesn't contain some of the award conditions.

PN1465

The agreement doesn't contain an early-morning shift allowance, does it?‑‑‑No, but we provide a higher base salary rate of pay.

PN1466

It doesn't provide an afternoon shift loading, does it?‑‑‑No, but we provide a higher base salary rate of pay.

PN1467

We've had a look and we've accepted before that there are people who work on something that we regarded as an afternoon shift?‑‑‑They work in the afternoons, yes.

PN1468

You're aware of what the shift loading is under the award for an afternoon shift?‑‑‑No.

PN1469

MR BROWN: Is the witness being asked to go look through all 60 pages of it or is my friend going to take her to it?

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1470

MS BEYNON: It's okay if she wants to say no?‑‑‑Where is the afternoon shifts referenced? "An employee who works on an afternoon or night shift must be paid 15 per cent extra for such a shift."

PN1471

That's a significant loading for working those hours, isn't it?‑‑‑It's 15 per cent loading and yes, we are paying a significantly higher base hourly rate of pay.

PN1472

An employee just worked on afternoon shift, worked on afternoon shift, it's possible, isn't it, that they may not get as much under your agreement than the award?‑‑‑I would need to do the specific maths on that particular question to compare the award rate plus 15 per cent to our - - -

PN1473

Ms Minhas has done that in those calculations, as you can see?‑‑‑Which number in her statement is that referencing?

PN1474

If I look - I'm pretty sure this is right - if I look at employee two at Logan worked a Friday, Saturday and Sunday, starting at 4, ending at 12.

PN1475

MR BROWN: If I could just also, in fairness to the witness - and again, it gets to this notion of which classification and which level - if the question is going to be put it has to be on the basis that the person is a crew member and it would have to be put on the basis that Ms Minhas has assessed that person as level three. So if questions are going to be put to this witness about Ms Minhas's calculations in fairness to the witness, you're going to have to be a bit more precise, in my submission, and particularly make reference to the asterisk where Ms Minhas has set it to level three, only because I'm going to be submitting this in a later stage it was not put to the witness this morning in cross-examination that his belief that their workers were level two was wrong.

PN1476

MS BEYNON: So if we look at just employee two here at Logan, calculated there, Krispy Crew member, calculated on the basis of level three; works Friday, Saturday, Sunday, the clock time 16.12, the hours, then there is a calculation there with the shift loadings under the award. That worked out to be $773.37?‑‑‑Yes, but she has calculated using the level three base hourly rate of pay under the award.

PN1477

Yes?‑‑‑We're saying that Krispy Crew are level two.

PN1478

Even then, if we flip over, we've got the calculations based on your agreement. That comes to $727.95?‑‑‑Yes, but the calculation that she's reached for the food, beverage and manufacturing award is using the incorrect base hourly rate.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1479

Yes, well, are you aware of the difference between level two and level three?‑‑‑Yes, and we've benchmarked that our Krispy Crew are a level two.

PN1480

Are you aware of difference in the rate between a level two and level three?

PN1481

MR BROWN: I just want to be very careful that the versions of the - sorry, just to clarify; that's the right version of the modern award?

PN1482

MS BEYNON: Yes.

PN1483

THE DEPUTY PRESIDENT: Is it in this table of paragraph 75 for Ms Park's statement, exhibit A2? Is that the most efficient way for her to identify the differences in rates?

PN1484

MS BEYNON: Thank you?‑‑‑So in order for these calculations to be compared, instead of using $20.22 as the base hourly rate of pay for the award, it should be $19.47.

PN1485

In your view, at this point, yes?‑‑‑That's what we submitted, yes.

PN1486

Yes, that's what you've submitted; okay. I think Ms Minhas has with her some updated calculations on level two as well and we - I'm sure she can bring them to us.

PN1487

MR BROWN: She's going to have to get them into evidence first. We're not aware of those.

PN1488

THE DEPUTY PRESIDENT: There are other calculations, aren't they?

PN1489

MR BROWN: They're not attached to her - we're not aware of any calculations that fit the category of these calculations now recovered level two, no.

PN1490

THE DEPUTY PRESIDENT: No, but there are calculations. I mean, you can make submissions as to whether they're correct.

PN1491

MR BROWN: Perhaps we can be given a copy and look at them over the luncheon adjournment?

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1492

THE DEPUTY PRESIDENT: Yes.

PN1493

MR BROWN: I call for that document.

PN1494

MS BEYNON: Yes, no worries; we made one for you. Going to paragraph 81 - - -?‑‑‑Of my statement?

PN1495

- - - of your statement and you've suggested here that - - -

PN1496

THE DEPUTY PRESIDENT: Sorry, Ms Beynon - is this an appropriate time or - - -

PN1497

MS BEYNON: I think it may be.

PN1498

THE DEPUTY PRESIDENT: - - - will you be spending a little bit on (indistinct)?

PN1499

MS BEYNON: Yes, I've probably got another hour.

PN1500

THE DEPUTY PRESIDENT: Okay.

PN1501

MR BROWN: Could we alert the Commission to what the advocates have agreed in terms of the final submissions?

PN1502

THE DEPUTY PRESIDENT: Yes, well, I was going to propose that we get the transcript and then we run a timetable.

PN1503

MR BROWN: I will endeavour to complete the evidence today and I do not expect to be more than 45 minutes with the remaining witness. That will conclude the evidence today and the parties have requested that if the transcript can be made available we can then agree upon a timeframe for written submissions.

PN1504

THE DEPUTY PRESIDENT: Yes, and it would probably be good to digest that and then have you back for half a day to - - -

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1505

MR BROWN: I think there are some people who want to get on some planes this afternoon but we will definitely finish before 4 o'clock this afternoon.

PN1506

THE DEPUTY PRESIDENT: Okay. We'll come back at 10 past 2.

PN1507

MR BROWN: Could I be relieved? If the union provides me with the document that I've made a call on, do I have the permission of the Commission to speak to the witness about those figures only? She is in cross-examination. I normally wouldn't be able to speak to her over the luncheon break without the permission of the Commission.

PN1508

THE DEPUTY PRESIDENT: Yes, I think that's acceptable.

PN1509

MS BEYNON: No problem with that.

PN1510

THE DEPUTY PRESIDENT: Thank you. We'll now adjourn.

<THE WITNESS WITHDREW [12.56 PM]

LUNCHEON ADJOURNMENT [12.56 PM]

RESUMED [2.14 PM]

PN1511

THE DEPUTY PRESIDENT: You can go ahead, Ms Beynon.

<SALLY ANNE LOUISE PARK, RECALLED [2.14 PM]

CROSS-EXAMINATION BY MS BEYNON, CONTINUING [2.14 PM]

PN1512

MS BEYNON: I believe we were at paragraph 81 of your witness statement, Ms Park?‑‑‑Yes.

PN1513

You've stated here that - with reference to Ms Minhas' statement, that the store staff and stand-alone facility staff are entitled to: nights between 12.01 am and 5 am Monday to Sunday?‑‑‑Monday to Saturday.

PN1514

Monday to Saturday, sorry. Okay. And in paragraph 37 and 38 of Ms Minhas' statement that you're referring to, she says:

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1515

In comparison, under the award an employee working a shift finishing after midnight and/or before 8 am, or any shift commencing between midnight and 3 am, must, through each engagement, be paid the 30 per cent loading.

PN1516

Correct?‑‑‑Yes.

PN1517

So it's the case, isn't it, that under the agreement people working on that definition of night shift, the agreement's definition of night shift, they get a 35 per cent loading for the hours between 12.01 and 5.00?‑‑‑Yes.

PN1518

But under the award they get 30 per cent for all of the hours falling within that definition that I just read out?‑‑‑Yes. And under our agreement they also get the higher base hourly rate of pay.

PN1519

Yes, but on that, like night shift loading, your agreement only provides 35 for five hours, whereas the whole shift is encompassed under the award. Is that correct?‑‑‑Yes, that's correct.

PN1520

So then at 83 you say that you don't agree with Ms Minhas in her statement there at 39 about that conclusion, that a person would be worse off under the agreement than the award for working a night shift?‑‑‑Yes. Because you need to also consider the higher base hourly rate of pay that our agreement provides for.

PN1521

And have you done any analysis of somebody who was just working night shifts under the agreement or under the award that shows that they are better off?‑‑‑I don't know if we've specifically done people exclusively working night shifts.

PN1522

So you can't be confident that they would be better off?‑‑‑I can't be confident that we've done the specific analysis to that example, no.

PN1523

But you can't be confident that they would be better off because you haven't done the analysis?‑‑‑For someone who has exclusively worked night shifts, I can't - we haven't - I don't - can't specifically recall the analysis that we've done for that definition that you're providing.

PN1524

Okay. Thank you. So then we go to paragraph 85 of yours, which refers to 41 to 46 of Ms Minhas' statement, in which she says that:

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1525

The agreement provides ordinary hours of work for employees who can work Saturday and Sunday inclusive. The agreement anticipates that work will be rostered on Saturdays.

PN1526

Yes. And the agreement has no - remove the rate for ordinary working hours on a Saturday. That's correct? Yes?‑‑‑No, we don't provide a Saturday loading, no.

PN1527

So in comparison under the award, an employee who would work 12.01 to 11.59 on a Saturday would be paid a loading of 150 per cent. You're aware of that entitlement?‑‑‑Yes.

PN1528

So you would agree, then, with Ms Minhas' conclusions that an employee under the agreement working Saturdays would be worse off than the award if they were rostered to work on that Saturday?‑‑‑I think you need to take into consideration the higher base hourly rate of pay that we work, and if somebody works a variety of shifts across the whole week.

PN1529

But if they were just rostered on Saturdays, as they can be, they would be worse off. Is that correct?‑‑‑They can't just be rostered on Saturdays because of rostering principle 6 under the national enterprise agreement.

PN1530

They could just be rostered on Saturdays for three weeks, though, couldn't they?‑‑‑Well, yes, they could.

PN1531

And they would be worse off?‑‑‑I don't believe so, no.

PN1532

Why?‑‑‑Because we provide a higher base hourly rate of pay.

PN1533

Does your base hourly rate of pay compensate for 150 per cent loading?‑‑‑For exclusively working Saturdays?

PN1534

Yes?‑‑‑Probably not, no.

PN1535

No. So they would be worse off. You agree, don't you?‑‑‑(No audible reply)

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1536

In your statement you also - from about 86 through to 87 you essentially say that - you refer to Ms Minhas' statement, paragraphs 47 to 49 where she outlines working on a Sunday. And so under the agreement employees who work on a Sunday are entitled to a 40 per cent loading on their ordinary rate; they get a lump sum if they're a production employee, $30 for shifts in excess of five hours; and accordingly the hourly rate for Krispy Kreme would be about $32.90. In comparison under the award an employee would get, between 12.01 and 11.59, they would get 200 per cent with a minimum of three hours worked.

PN1537

MR BROWN: The only reason why I object is ‑ ‑ ‑

PN1538

MS BEYNON: I'm getting to the undertaking, if you ‑ ‑ ‑

PN1539

MR BROWN: Yes. Sorry.

PN1540

MS BEYNON: Thanks.

PN1541

That's what's in the agreement, though, isn't it?‑‑‑The enterprise agreement provides for 40 per cent loading on Sundays, plus the additional payment for stand-alone facilities which observe the five hours.

PN1542

Yes. And in the agreement that is $35?‑‑‑Yes. And then we've provided undertakings to increase that to $40.

PN1543

And that undertaking isn't accepted yet, is it?‑‑‑Not yet, no, it's not.

PN1544

It's a proposal?‑‑‑(No audible reply)

PN1545

Yes, okay. So you would agree, then, with the conclusion that Ms Minhas has put there at paragraph 49 that an employee under the agreement would be worse off under the award if they were rostered to work on a Sunday, particularly if it was less than five hours?‑‑‑Ms Minhas has used the calculations on a level 3, not a level 2 employee.

PN1546

I've got some calculations on level 2, and we can go back to those. We can go back and we can have a look at the Saturday and Sunday rates, but I put it to you that a person working on a Sunday would be worse off under the agreement based on what's currently in the agreement?‑‑‑Well, we've got the rostering principle 6 and 7 to limit the number of Sundays that people can work, and we generally do roster people across a variety of shifts during the week.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1547

Nonetheless, when we looked at shift patterns over a roster period, a week, there were people exclusively Saturday and Sunday. Correct?‑‑‑There were, but they would have been rostered under the existing collective workplace agreement, and the national enterprise agreement provides for slightly different conditions.

PN1548

It doesn't mean that you can't just be rostered on a Saturday and Sunday, though, does it?‑‑‑The rostering principle 6 and 7 says that we can only roster - I will just get the wording.

PN1549

It limit how many Saturdays and Sundays ‑ ‑ ‑

PN1550

MR BROWN: No, she has asked to look at it. Can she be permitted to answer the question?

PN1551

THE WITNESS: So it says that store staff and stand-alone facility staff will not be rostered to work on at least one Saturday and two Sundays each month?‑‑‑So they could work two Sundays and three Saturdays.

PN1552

MS BEYNON: So they could work two Sundays and three Saturdays?‑‑‑Yes.

PN1553

Okay. Thank you. And they would be worse off if they were working that Saturday and Sunday shift?‑‑‑I don't believe so.

PN1554

On what basis?‑‑‑I think because we roster across a variety of different ‑ ‑ ‑

PN1555

No, no. You've rostered them on. You've rostered them on Saturday and Sunday. There's nothing in the agreement that stops you doing that. That is the roster. Are they worse off under the agreement than the award?‑‑‑That specific example, I'm not sure. I don't have the maths.

PN1556

We can get to the maths in a minute, though. I just want to go to 90 of your statement, which refers to 50 to 52 of Ms Minhas' statement. Do you have a copy of the flier that was attached to the F17 there?‑‑‑Yes, I do.

PN1557

And that flier there, that has in it yellow-orange part. That describes public holiday loading as 150 per cent, does it not?‑‑‑Yes.

PN1558

Okay. 150 per cent. So are you aware of 150 per cent loading? Are you aware of how the award describes the public holiday loading?‑‑‑As in the specific wording in the award? Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1559

Not the wording, but what's the nummary value?‑‑‑I think it's a total of 250 per cent

PN1560

250 per cent, yes?‑‑‑Which is the same as our agreement.

PN1561

In that flier, the flier that was put to employees, it says 150 per cent loading, doesn't it?‑‑‑Yes. It's a loading on the base hourly rate. So you get the base hourly rate of pay, plus 150 per cent loading.

PN1562

I put it to you that's ambiguous in the agreement, that it looks like it's 150 per cent loading?‑‑‑It's worded the same as the Sunday loading as well. The Sunday loading is 40 per cent. It's worded exactly the same in the Sunday loading. It's known that it's a base hourly rate of pay plus 40 per cent.

PN1563

The common way, you would agree, of expressing public holiday loading, is 250 per cent.

PN1564

MR BROWN: I object.

PN1565

MS BEYNON: As it is in the award.

PN1566

THE DEPUTY PRESIDENT: I think the objection is sustained. I don't know that this witness can give evidence on the common way ‑ ‑ ‑

PN1567

MS BEYNON: That's fine. I don't need to press it any further.

PN1568

I would just like to take you to 98 of your statement, where we start talking about part-time hours?‑‑‑Yes.

PN1569

I'm just grabbing a copy of the agreement. So a part-time - the entitlement - let me start again. The entitlement regarding part-time employment and contract hours is in writing on commencement. Is that correct?‑‑‑As in how we will confirm part-time contract hours?

PN1570

So the entitlement says:

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1571

You will receive written confirmation of your contracted hours upon commencement.

PN1572

?‑‑‑Are you referencing the wording in the national enterprise agreement?

PN1573

Yes?‑‑‑Yes, that's what it says.

PN1574

So that's for prospective employees. Is that correct?‑‑‑It says "on commencement", yes.

PN1575

So it's for prospective employees?‑‑‑Well, yes, but we also need to communicate that to our - once this agreement is approved we will need to communicate in writing to all of our part-time employees on their rostered contract hours.

PN1576

But the entitlement itself applies prospectively. It doesn't apply to current employees?‑‑‑That's not the intent of the agreement. The intent is that part-time employees our existing part-time employees will have agreed contract hours in writing.

PN1577

I accept that that's a process you may undertake, but in terms of the entitlement, it only applies to part-time people commencing.

PN1578

MR BROWN: No, that's a legal conclusion that she's putting to the witness.

PN1579

THE DEPUTY PRESIDENT: She can put to the witness her understanding of the entitlement.

PN1580

MR BROWN: The witness has given her understanding as to how this agreement is to be read and implemented. My friend is putting a different proposition.

PN1581

THE DEPUTY PRESIDENT: I will allow it on the basis of an understanding of the witness.

PN1582

MR BROWN: I might also add this is not part of the union's contentions that we've come here to meet, either.

PN1583

THE DEPUTY PRESIDENT: Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1584

MS BEYNON: Sorry?

PN1585

MR BROWN: This is not part of the contentions that this union, your union has raised, that we have come here to meet.

PN1586

MS BEYNON: What do you mean? It's in our submission ‑ ‑ ‑

PN1587

MR BROWN: This interpretation - the interpretation that you're now putting is not part of your contentions.

PN1588

THE DEPUTY PRESIDENT: I think we've been through that in terms of cross-examination, so we will just see where it falls out.

PN1589

MR BROWN: I accept that.

PN1590

THE DEPUTY PRESIDENT: Thank you.

PN1591

MR BROWN: You made a ruling on it.

PN1592

THE DEPUTY PRESIDENT: Yes.

PN1593

MS BEYNON: It's your understanding - sorry. It's your evidence here that a part-time employee will be entitled to receive overtime payments if the roster is changed within the week period?‑‑‑Sorry, say that again.

PN1594

It's your evidence here that a part-time employee will be able to receive overtime in accordance with the terms of the EBA?‑‑‑Yes.

PN1595

For example if a part-time employee is asked to work additional hours after the roster period has commence?‑‑‑Yes. Can I explain how that will work?

PN1596

I will ask you in a second?‑‑‑Okay.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1597

So that's when they work in excess of their contracted hours?‑‑‑So how this will work in practice is that we will agree in writing with our employees of a minimum contract hours per week for our part-time employees. If there's a requirement to roster them for additional hours in advance of the roster period, we can roster them additional part-time rostered hours, and that combination of hours will be paid at ordinary If during the week they are called in for an additional shift, that additional shift will be paid at overtime.

PN1598

Okay. And is there a minimum amount of contracted hours that those employees could receive?‑‑‑The definition in the agreement is between seven and 37 hours per week.

PN1599

So an employee could receive a minimum of seven contract hours?‑‑‑That's the minimum in the agreement, yes.

PN1600

And is it the company's intention that they would be contracting people for seven hours a week under those contracts?‑‑‑There will be some people who regularly work one shift a week who would be contracted to seven, and then we have employees who regularly work more hours than that who would be contracted to a higher minimum part-time contracted hourly rate - number of contract hours.

PN1601

Do you have with you the NUW's preliminary submissions in this matter, and attachment D?

PN1602

It's attachment D to her submissions. It's the really big bundle of documents. It's the one we discussed yesterday morning.

PN1603

Bear with me. I'm sorry, and it doesn't have numbers on it. If you flick through to page 39. So this is a bundle of documents from the approval process of the 2016 agreement. The page 39 one is an email, and it's from the Chambers of Bull DP?‑‑‑Almost there. What's the date of the email?

PN1604

The date of the email is 2 August 2016. Chambers Bull DP, Tuesday, 2 August, Bree Qaran.

PN1605

MR BROWN: I've got a practical suggestion. If Ms Hurley-Smith would be permitted to get near the witness, she might be a bit more familiar with the documents as we have them, and there might be a better chance of finding them.

PN1606

THE DEPUTY PRESIDENT: Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1607

MS BEYNON: Keep that one. Don't lose the spot, because I'm going to refer across the page, so. Have you seen a copy of this correspondence before, Ms Park?‑‑‑I'm sure I have, but I - yes, it has been a while.

PN1608

If we go down there, "Hi Bree." It says:

PN1609

The Deputy President is concerned with the undertaking provided in relation to part-time employees. As you've noted, part-time employees who agree to work less than 30 hours/a week may not be better off overall than under the award.

PN1610

Okay?‑‑‑That's what it says?

PN1611

Yes?‑‑‑Yes.

PN1612

You agree it says that? All right. Keep hold of that one, but flick two more pages down, and you will see there's an undertaking there. Krispy Kreme logo on the top, with an AG2016/3433?‑‑‑Is it the one dated 29 July 2016?

PN1613

Yes?‑‑‑Yes.

PN1614

So on the back part of that, near where the date is ‑ ‑ ‑

PN1615

THE DEPUTY PRESIDENT: Sorry, I've got 8 August 2016. Is that the one we're talking about?

PN1616

MS BEYNON: No. There's a 29 July one. I think there was quite a few undertakings provided.

PN1617

THE DEPUTY PRESIDENT: I've just got to find it. Yes, I've got that.

PN1618

MS BEYNON: So on the second part of that, near where the date is, there's a component of the undertaking for what payments for overtime and shift loading the store staff receive?‑‑‑Mm‑hm.

PN1619

And it has got:

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1620

A part-time store staff will be rostered a minimum of 15 hours per week for the roster period. Part-time store staff will be rostered a minimum of four consecutive hours on any shift. Part-time store staff will not be rostered to work more than 11 hours on any shift. Part-time store staff that have agreed to work 30 hours or less per week will receive additional compensation in accordance with the agreement for any hours worked at the direction of Krispy Kreme in excess of 30 in the roster period.

PN1621

?‑‑‑Yes, but in the 2016 agreement we had a different application and definition of how part-time hours would be rostered and calculated. So these undertakings are referencing a different version.

PN1622

Yes. Yes, but the proposal of - I'm going to put it to you that the proposal, the way that you structured part-time hours in the current agreement does not radically depart from the concerns that are being raised in this undertaking.

PN1623

MR BROWN: I just rise to this objection. Maybe it's just me, and maybe my friend can help me. There is no 2016 enterprise agreement. An enterprise agreement was made; it was submitted to the Fair Work Commission; there then was a long process of discussions - sorry, I retract that - communications between the Commission and my client; there were a number of attempts to proffer undertakings that were responsive to the then concerns of the then Member who had the file; my client elected ultimately to not pursue the approval of that agreement.

PN1624

So the rhetorical question is: how could what my client did in 2016 with respect to an agreement that was made and not approved, have any relevance to this proceedings and the matters that are currently before you? It's a question of relevance.

PN1625

THE DEPUTY PRESIDENT: Well, isn't it - whatever its status was, it was a proposed enterprise agreement, and I think Ms Beynon is identifying, or seeking to say that there are certain provisions in that agreement to which - this is where I think it's going - to which undertakings were given, and that they're not here in this application. Is that effectively ‑ ‑ ‑

PN1626

MS BEYNON: Yes, that's correct. And ‑ ‑ ‑

PN1627

MR BROWN: And so ‑ ‑ ‑

PN1628

MS BEYNON: ‑ ‑ ‑ as well as they're not substantially different.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1629

THE DEPUTY PRESIDENT: Yes.

PN1630

MS BEYNON: They're not substantially different clauses.

PN1631

MR BROWN: Well ‑ ‑ ‑

PN1632

THE DEPUTY PRESIDENT: So I think it's a relevant line of questioning in the context of testing the current enterprise agreement, what could be done or was done in the past, and whether it should be done now.

PN1633

MR BROWN: That's the ruling?

PN1634

THE DEPUTY PRESIDENT: Yes. Thank you.

PN1635

MS BEYNON: I don't think there's much further to go on that, Deputy President. I just wanted to put to the witness that the structure of part-time hours in the proposed 2016 agreement is not radically different from the structure of part-time hours in the 2019 agreement?‑‑‑I would disagree with that statement. When I go back to the 2016 agreement and then what payments for overtime hours and shift loadings do staff receive, we said that where full‑time, part-time or casual staff work in excess of 38 hours in a single week roster period, overtime is paid; whereas in our 2019 agreement we are paying overtime after their contract hours. So it is different to what was put in the 2016 agreement.

PN1636

But their contract hours, they can be as low as seven. Is that correct?‑‑‑Yes. But then if they are rostered an extra shift for the following week, they get overtime payments for that extra shift.

PN1637

Rostered an extra shift in the following week?‑‑‑What I explained before. So if somebody's contract hours are seven hours a week and they pick up an extra shift during the week, that extra shift is paid at overtime, and that's different to what is in the 2016 ‑ ‑ ‑

PN1638

That's the proposal, yes?‑‑‑ ‑ ‑ ‑ agreement. So it is different.

PN1639

Right?‑‑‑And we also did include the recommendations of staff not being rostered to work more than 11 hours on a shift, and rostered minimum four consecutive hours on a shift. We included those changes in the 2019 version of the agreement.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1640

Are you aware of how many part-timers receive overtime now?‑‑‑Under the corrective workplace agreement overtime is paid after 38 hours in a week.

PN1641

And are you aware of many that's ever paid out, or that's paid out frequently?‑‑‑We do pay overtime when people work over 38 hours in a week, and it depends on the volume of work there is to be done, as to how many hours of overtime there are paid. But we definitely do pay it.

PN1642

I will make submissions on that further.

PN1643

I just want to take you ‑ ‑ ‑ ?‑‑‑Sorry, are we done with this ‑ ‑ ‑

PN1644

The big one, yes. Can get rid of that one. And you've still got Ms Minhas' documents, these ones with the rosters?‑‑‑Yes.

PN1645

Just start from the very beginning?‑‑‑The one titled Fountain Gate?

PN1646

Yes, the Fountain Gate one. So we've got different groups of areas. We've got processing, production and processing, shippers, pallets, labels, and wash-up there. So are you able to describe the roles of each of the people in these areas, starting with production?‑‑‑Production and processing are responsible for making the doughnuts.

PN1647

And so what exactly do they do in production?‑‑‑They follow a recipe to measure the ingredients to make the dough, which they then put into a machine to mix the dough, following the process; and then they put the dough into the doughnut line where the dough is cut and cooked.

PN1648

So they are weighing ingredients?‑‑‑Yes. They weigh ingredients to the recipe.

PN1649

Yes. And collecting ingredients?‑‑‑Yes. They get the ingredients to be measured, yes.

PN1650

They measure them themselves. Is that correct?‑‑‑They collect the ingredients and then they measure them, yes.

PN1651

And they follow a recipe?‑‑‑Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1652

And throughout that process they're required to assess the allergens?‑‑‑Well, it's not really allergens at the making doughnuts stage. The allergen training is more provided for the processing staff because we apply peanuts and those sorts of things to some of the products.

PN1653

And they would be following some quality control processes in relation to those tasks?‑‑‑Well, they follow the recipe, and there are some checks in place to check whether they are on track or off track with the work that they're doing.

PN1654

And what are those checks?‑‑‑They would check the dough temperature, as an example.

PN1655

So they're responsible for checking the dough temperature?‑‑‑Yes, to make sure it's to spec, yes.

PN1656

And they are operating a dough mixing machine?‑‑‑Yes. They press a button to turn it on, yes.

PN1657

Yes. Which is machine - that's machine operation?‑‑‑Well, it's not quite as technical as other lines of work, I think, but they follow the process and they press the button to turn it on for the desired amount of time.

PN1658

Yes, so that - yes, it's operating the machine, yes. And are there any other machines ‑ ‑ ‑

PN1659

MR BROWN: No, you can't say "it's operating the machine"; question; "yes", and that be left on the transcript as the answer. It's not her answer "yes" that counts, it's this one. So I think that last question and answer has to be stricken from the record.

PN1660

THE DEPUTY PRESIDENT: I don't know if we can technically strike things from the record, but I think the question can be asked again ‑ ‑ ‑

PN1661

MR BROWN: It's a non-question.

PN1662

THE DEPUTY PRESIDENT: Yes.

PN1663

MS BEYNON: I will just ask it again if that's okay.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1664

THE DEPUTY PRESIDENT: Yes.

PN1665

MS BEYNON: Are they ‑ ‑ ‑

PN1666

MR BROWN: Perhaps let her answer it ‑ ‑ ‑

PN1667

MS BEYNON: Are they operating a machine?‑‑‑Well, they're pressing buttons on a machine. I'm not sure if I would define that as operating a machine.

PN1668

Okay. And then what else happens in that production process?‑‑‑They would also do cleaning, and I think that would be the main areas of their work.

PN1669

Is there a doughnut line, though, that they - there's a doughnut-making machine that they actually use?‑‑‑I mentioned that there's a dough cutting and ‑ ‑ ‑

PN1670

Yes, and dough cutting machine. Yes. And that's another machine?‑‑‑Yes. But again there's buttons that they press to set the settings per the recipe.

PN1671

So they set settings, they follow a recipe, they're operating machines. Is that correct?‑‑‑I don't believe that they're operating machines. They're pressing buttons on a machine. I don't think it's quite the same ‑ ‑ ‑

PN1672

Is that not operating a machine, Ms Park?‑‑‑It's not how I would define it.

PN1673

How would you define operating a machine?‑‑‑Something more complicated than pressing a button, following a recipe.

PN1674

You're aware that most food manufacturing environments have machinery?‑‑‑No, I have never been in a ‑ ‑ ‑

PN1675

You've never been in a food manufacturing environment before? Okay. So that's what the workers in production do. Those are not - so we've gone through weighing, mixing, recording; we've got some judging.

PN1676

MR BROWN: No, the witness hasn't been asked about - again she's playing it back as if it's the witness's evidence. There has been no question about recording, and ‑ ‑ ‑

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1677

MS BEYNON: There was.

PN1678

MR BROWN: ‑ ‑ ‑ judging. They haven't been put to the witness yet.

PN1679

THE DEPUTY PRESIDENT: So you just want to put those to the witness.

PN1680

MS BEYNON: Yes.

PN1681

In these processes we've established people weigh the ingredients?‑‑‑Yes.

PN1682

Is that correct? Yes. And they get the ingredients. That's correct?‑‑‑Yes.

PN1683

And are they required to record the ingredients that they're getting?‑‑‑I don't believe so.

PN1684

They're not required to record the ingredients?‑‑‑I'm not familiar with that part of the process, but I don't - it's just a bag of flour that they weigh out and then tip into the dough mixer. I'm not sure where they would record it. I'm not sure on that part.

PN1685

You don't have a quality check that requires that ‑ ‑ ‑ ?‑‑‑They check at the end of the line, the number of - like as a yield, as an example, to count the number of doughnuts that have been made per batch.

PN1686

Yes?‑‑‑But as for the ingredients going in, I'm not sure about that part of the process.

PN1687

So some of the production workers would be recording yield and other required information for quality purposes?‑‑‑Recording the yield is counting the number of bad doughnuts that are in that batch.

PN1688

And they're required to follow quality control processes. Is that correct?‑‑‑They're required to follow the recipe, which I guess in itself is quality control, but they're not required - not able to make any variations to the recipe or the process.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1689

And if something goes wrong in the process, the dough doesn't look right, they don't have the ingredients, the yield is not what it's supposed to be, is that worker required to asses that situation?‑‑‑They would be required to provide limited judgment in that situation and would most likely escalate to a team leader or manager to assist with the trouble-shooting.

PN1690

So they're required to exercise some judgment?‑‑‑Limited judgment.

PN1691

Why is it limited?‑‑‑Because that's not their role. Their role is to make the doughnuts and follow the process. If there's any, like, major issues with yield or there's a problem with the proofer, that gets escalated to the team leader.

PN1692

I put it to you it's limited judgment within the scope of that production environment, though, isn't it?‑‑‑What do you mean by that?

PN1693

It's not just limited judgment, they're exercising a form of judgment against their knowledge of what is - when the product looks right and when it doesn't look right, and that's a specific knowledge that they've gained. Right?‑‑‑They are trained to follow a process and to identify if it is a good doughnut or a bad doughnut, yes.

PN1694

Yes?‑‑‑But it's limited judgment that they're required to exercise.

PN1695

But that judgment is quite important to the company, isn't it?‑‑‑All steps and roles are important to the company.

PN1696

So if they weren't exercising judgment about good or bad doughnuts, that could be a problem for the company?‑‑‑It would be a problem for the company if they weren't following the recipe or following the right process.

PN1697

Yes?‑‑‑Which they are required to do.

PN1698

So there are, you agree, production skills involved in that?‑‑‑We do train people how to make doughnuts.

PN1699

Yes. And there's production skills involved in that?‑‑‑I don't know how you would define production skills, but we train people how to weigh ingredients, to put it in the machine to mix, to move it from the mixing machine to the doughnut cooking machine. We train them on that.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1700

Yes. So food manufacturing production skills, so weighing, we will talk about recording, talked about temperature, production, manufacturing skills.

PN1701

MR BROWN: No, we haven't spoken about those. That maybe she put a question about temperature, manufacturing skills, it's news to me.

PN1702

MS BEYNON: I'm outlining in general production to the ‑ ‑ ‑

PN1703

THE WITNESS: I can only ‑ ‑ ‑

PN1704

MS BEYNON: The work you've described - you would agree with me the work that you've described, they're production skills. Is that correct?‑‑‑I don't - I only know the work that we do at Krispy Kreme. I don't know how it would be compared in other environments. But we teach people how to make doughnuts.

PN1705

And these are production employees. Is that correct?‑‑‑Those are the people that make the doughnuts.

PN1706

Yes, okay. Can you describe in any further detail what the machinery involved is?‑‑‑What specifically do you mean? Like what equipment we use?

PN1707

Yes?‑‑‑The equipment comes from Krispy Kreme in the States.

PN1708

But, you know, are they dough mixing machines, are they kneading machines, are they ‑ ‑ ‑ ?‑‑‑There's a barrel mixer which mixes the dough; there's the machine that cuts the doughnuts and fires the doughnuts; and there's a machine that mixes the glaze as well.

PN1709

Do the production employees make the glaze?‑‑‑I think so.

PN1710

And do you know what's involved in making the glaze?‑‑‑No.

PN1711

Not at all?‑‑‑Sugar and hot water. That's as much as I know.

PN1712

It's a state secret, okay. But there's a glaze machine?‑‑‑It's built into the line that makes the doughnuts.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1713

And it's somebody's role to - is it somebody's role to go and get the ingredients for that and operate that glaze machine?‑‑‑The production employees make the glaze and put it into the trough, which is then - the machine automatically glazes the product.

PN1714

Can you describe the jobs that happen in processing?‑‑‑The processing employees are required to tray doughnuts off the line, so that's picking them off the line and putting them onto trays. Sometimes they will pump the doughnuts with filling on the line, and then they will dip and decorate according to the specifications.

PN1715

And are they required to follow quality assurance procedures?‑‑‑They're required to follow a strict recipe to make the doughnuts to specification, and if we're dealing with allergens - peanut products as an example - they're made in a separate part of the facility.

PN1716

Yes. So they're required to have some knowledge of allergen?‑‑‑We provide them training on how to deal with allergens.

PN1717

Yes. And contamination?‑‑‑I'm not sure of the level of training that they would get on contamination. I think Talal spoke to that.

PN1718

But the worker is - is the worker required to make an assessment about whether the doughnut stacks up to the quality required?‑‑‑They're required to make a decision as to whether the doughnut is a good doughnut or a bad doughnut, in line with the recipe or the picture of the doughnut. If there are any significant issues with regards to that, then it gets escalated to a team leader to solve.

PN1719

So they are making an assessment about the doughnut?‑‑‑They exercise minimal judgment.

PN1720

Yes. And they're responsible for notifying somebody if it's not right. Correct?‑‑‑They escalate to a team leader, yes.

PN1721

And if the mix is wrong or the temperature is wrong, they need to have enough knowledge to know those things?‑‑‑Are you referencing the processors?

PN1722

Yes?‑‑‑The processors are able to troubleshoot to a certain degree with regards to if the icing is not at the correct temperature per the specification, they will rectify that. But again it's minimal judgment that they're required to do. If there's anything that they're unable to answer, it gets escalated to a team leader.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1723

So they can do some troubleshooting?‑‑‑Yes. Minimal judgment, yes.

PN1724

I think some troubleshooting within the scope of their role. Would you agree with that?‑‑‑They're required to exercise minimal judgment when they execute their roles, and they follow defined processes and procedures.

PN1725

I think what you've - you've listed a lot of skills and competencies.

PN1726

MR BROWN: No, the witness hasn't been - the word "competency" hasn't been put to the witness.

PN1727

MS BEYNON: It's my word.

PN1728

MR BROWN: Okay. Well, then maybe you should ask the witness what her understanding of the word competency is and ask her some questions about it before you frame it back as her evidence.

PN1729

MS BEYNON: You've listed a lot of skills and roles in the processing and production parts of the business?‑‑‑I've listed a lot of tasks, yes.

PN1730

(Indistinct) the skill to be able to look at something and make sure that product looks like the thing that it's meant to look like, and to assess whether or not it fits within the quality control or the process that's outlined for the manufacture of that product?‑‑‑We provide very clear processes and procedures and pictures of what the good product looks like, and it's up to the employee - the Krispy Crew member in processing to use their limited judgment in order to decide whether it's a good doughnut or a bad doughnut, as per that specification.

PN1731

And I would put it to you that it's a skill to know about allergens, about contamination. I will put to you it's a skill to ensure that the temperature is right or the icing is at the right temperature. Those are skills, aren't they?‑‑‑I would say that those are things that we train people on, and they follow the process in order to execute those tasks.

PN1732

They're skills that require training. That's correct, isn't it?‑‑‑Those are tasks that require training, yes.

PN1733

And they're production or manufacturing skills. Is that correct?‑‑‑It's around making a product, and yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1734

In your statement, paragraph 66, you've said that Krispy Crew members are essentially recruited for manual labour. I put it to you what we've just been through, that's not just manual labour?‑‑‑I would argue that it is, because we require - it's not a task that people are required to have a certificate in food processing or any defined skills; they come to us and we provide the training in order for them to execute on those tasks.

PN1735

But it's not manual labour, what you're - it's not merely, merely manual labour. You are describing skills that you've trained your employees for to have in a production environment beyond manual labour?‑‑‑I disagree with that. They manual tasks and work that we require our people to do in the production and processing roles.

PN1736

Right. Okay. Let's go back to these ones. Let's go back to the Fountain Gate one. So we've gone through production processing. Then on the other side we've got Labels, Shippers, and Pallets. Let's have a look at Labels for a sec. What are the jobs required in Labels?‑‑‑The people who are rostered to work in that area, I believe label the product with the best before date or nutritional information panels.

PN1737

Is that all they do?‑‑‑Well, people who are rostered to work on labels are not necessarily exclusively working in that area, they're often trained to be able to perform other tasks in the facilities.

PN1738

When somebody is working in labels, they just put labels on things?‑‑‑If they're rostered to work on labels, I would assume that that's what they're directed to do.

PN1739

Yes, that's what they do. You would agree with me that that's a job requiring manual labour, wouldn't you?‑‑‑That is a manual job, yes.

PN1740

That's a job requiring manual labour. Correct? Yes?‑‑‑Yes.

PN1741

That's significantly different from the production and processing jobs that required lots of training to be able to do that role. That's correct, isn't it?‑‑‑It's a different type of training that we deliver to these people in order to label the products appropriately. And as I said, people don't usually - don't exclusively work on labels, they are also trained to work in other areas of facilities, and we rotate people among these areas of work.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1742

You would accept, though, that the labelling job is significantly less difficult than the working in production or processing, as you've outlined it, wouldn't you?‑‑‑Yes.

PN1743

Yes. All right. Very good. I just want to talk a little bit about qualifications. Again you've said, 66(a), that people don't present for employment at Len Thomas or Fountain Gate sites with anything that could be described as a Cert I in food processing. Yes?‑‑‑(No audible reply)

PN1744

Do you interview people coming into these production roles?‑‑‑I don't interview them, no.

PN1745

Are you aware through any other means of whether or not these employees come with qualifications?‑‑‑I place the advertisements for the roles, and I also have the ability to review applications of people who apply.

PN1746

You would accept that proposition, though, if an employee came to Krispy Kreme wanting to work as a production worker, that - - -

PN1747

MR BROWN: I object. You don't apply for a production worker job. There are no production worker jobs. There's no evidence to say that there are production worker jobs at Fountain Gate. The classification, you know.

PN1748

THE DEPUTY PRESIDENT: Well, I don't think Ms Beynon finished the question, but we will just see where the question ends up.

PN1749

MR BROWN: I withdraw the objection.

PN1750

MS BEYNON: You would accept proposition that if a person came and applied for a team leader role, a Krispy Crew role, that if they had prior industry experience, if they had prior learning, or if they had a Cert I, that they would be - that person would be equivalent to a level 3 under the award. Is that correct?‑‑‑No. There are a few parts to your question there. So when we recruit, we don't look at people who have these qualifications. For us, we're about finding people who are the right cultural fit for us and have the right attitudes, because we provide the training that people need in order to perform the tasks at hand. So if somebody applied to us with previous experience in food areas or with that qualification, it would be part of the assessment process, but it's not the first thing that we look for.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1751

But you would accept that those things, so recognised experience, prior learning, or a Cert I, II, III in food manufacturing, that would make - that would be equivalent to a grade 3, level 3 under the award?

PN1752

MR BROWN: I object to that. My friend is putting a proposition to the witness about the interpretation of the award. If she wants to take the witness to the award provision - and I think you will find that my friend is putting a gloss on it - the witness, as a matter of fairness, should be taken to grade 3 in the modern award. And if my friend is going to put her gloss on what the award says in terms of grade 3, it should be done with the benefit of the modern award in front of the employee. So in fairness to the witness, she should have the ‑ ‑ ‑

PN1753

MS BEYNON: Ms Park, you've got the ‑ ‑ ‑ ?‑‑‑ I do now, yes.

PN1754

Would you like to look at what it says there for level 3?‑‑‑So level 3 is:

PN1755

An employee who has either completed Australian Qualifications Framework Certificate I in food processing, or has equivalent recognised enterpriser industrial experience, training or prior learning experience, and/or skills to level 3.

PN1756

So if an employee presented for a Krispy Crew job and they had all of that, you would agree that they would be equivalent to a level 3. Is that correct?‑‑‑No, because you would also need to consider the competencies of the work that they're required to do, and our roles aren't classified as a level 3 according to this definition.

PN1757

Right. It's highly likely that if they - I believe - let me check.

PN1758

THE WITNESS: It's page 61.

PN1759

MS BEYNON: So an employee at level 3 is an employee who either has completed Cert I in food processing, or has equivalent recognised enterprise or industrial experience, training, or prior learning, and/or to level 3 skills?‑‑‑Yes, but then it also has a (b) competencies, and it says:

PN1760

An employee at level 3 performs a range of duties, including specialised work.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1761

That's correct. And those are the competencies they would be expected to display if they met the criteria?‑‑‑I would say that those other duties that they would perform in the role.

PN1762

Yes, that's correct, isn't it. But if they have those other things, then they would be a level 3?‑‑‑I think it's an "and". I think it's those things and the competencies.

PN1763

I don't believe that that's the way that it's set up?‑‑‑Okay.

PN1764

But you would accept that there are people - scrap that. You are unaware of whether people come to Krispy Kreme with qualifications in food or recognised prior learning, because you don't interview them?‑‑‑It's not something we look for as high on the priority list, no. We look for attitude.

PN1765

In subsection (c) of your statement here you've said - - -?‑‑‑Which number, sorry?

PN1766

So 66, we are still on 66:

PN1767

Limited judgement, and they work at all times under direct supervision.

PN1768

So just go back to our list again. Are you aware, within this production or processing, how many team leaders there would be per shift?‑‑‑Not exactly. It depends on how busy the shift is. But shifts will have at least one manager, potentially up to three managers on shift, depending on how busy it is.

PN1769

And do managers directly supervise employees?‑‑‑Team leaders and managers and assistant managers do directly supervise. They direct employees to different tasks or jobs to do on the shift.

PN1770

And so what - do you know the ratio of team leaders to production employees?‑‑‑No, not - - -

PN1771

So it could be the case that there's not always a team leader with a group of production employees?‑‑‑Are you asking if there would be occasions when there is not a team leader manager on shift?

PN1772

Yes?‑‑‑I don't think it would be the case.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1773

Would it be the case that sometimes those people aren't on the floor?‑‑‑Probably. If they've directed employees and everybody is doing the task they need to, they might have time to go to do some computer work if that's appropriate.

PN1774

Computer work is part of their role?‑‑‑Yes, for team leaders and managers.

PN1775

So it would be the case that there are times during the day or the shift that production employees would be working under general supervision only?‑‑‑Wouldn't say that they're operating under general supervision because the employees have been directed to perform tasks, and they can't choose when or how they do those tasks, it's at the direction of the team leader or the manager.

PN1776

But the team leader or manager might not be there?‑‑‑Because they've directed the tasks, and then they can go and do something else.

PN1777

So they're unsupervised at those points in time?‑‑‑A team leader will - or managers will be rostered onto the shift. They will be on the floor directing and managing employees, and at times during the shift perhaps they would go and work on the computer.

PN1778

Yes?‑‑‑But the employees are operating under direct supervision.

PN1779

Without the team leader there for points of time, so unsupervised?‑‑‑I would still say it's direct supervision because the employees have been directed to perform the tasks.

PN1780

Even though there's no one directly there?‑‑‑(No audible reply)

PN1781

I only have one chunk of questions to go. I just want to take you back to - have you got a copy of the slides in front of you?‑‑‑No, I don't have the F17 ‑ ‑ ‑

PN1782

MR BROWN: Are they the F17 slides?

PN1783

MS BEYNON: F17.

PN1784

THE DEPUTY PRESIDENT: Is this the March 19 slides?

PN1785

MS BEYNON: Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1786

I'm not in - mine printed out possibly with some stuff in the middle that I'm not sure is part of it, but do the slides start from here, "An exciting track record of growth"?‑‑‑No, it starts with, "Today's agenda". This one. It's the first slide.

PN1787

So what are these slides?‑‑‑That's part of the bit that the CEO did in the beginning of the presentation, just talking about business context and the journey that the company has been on.

PN1788

So these ones, these were presented during the information sessions that we've talked about?‑‑‑Yes.

PN1789

So we've got, "An exciting record of track growth" - sorry, "record of growth", I can't read. We have, "Key business fundamentals in place for success". These ones?‑‑‑I think you're slides are slightly out of order, but the CEO went through initially talking about the purpose and the people, about why it's important to Krispy Kreme and how we operate.

PN1790

Yes?‑‑‑He then went on to talk about our purpose, the reason why we're successful is because of our people; talking about dreams and opportunities in growth; and then went on to talk about the business fundamentals. And that's where the "track record of growth" slide came into it.

PN1791

Okay. So there's approximately eight slides in your slideshow that are about the business. Is that correct?‑‑‑(No audible reply)

PN1792

Start with that one?‑‑‑Think there's more than eight, but yes, there are slides at the beginning of the presentation to talk about the business.

PN1793

There's one, two, three, four, five, six, seven, eight, nine slides about the business. Sorry, no, there is - I think I have - there's more, okay. All right. So there's maybe 10 slides about the business in the slide deck that was used ‑ ‑ ‑ ?‑‑‑Yes.

PN1794

‑ ‑ ‑ for all the employee information sessions. Yes?‑‑‑(No audible reply)

PN1795

Okay. And then the rest of do with the agreement. Is that correct?‑‑‑Yes, the rest of the slides are to do with the agreement.

PN1796

So approximately how long did the slideshow presentation go?‑‑‑If you get ‑ ‑ ‑

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1797

MR BROWN: I object ‑ ‑ ‑

PN1798

MS BEYNON: ‑ ‑ ‑ for ‑ ‑ ‑

PN1799

MR BROWN: Yes. Sorry.

PN1800

MS BEYNON: ‑ ‑ ‑ at Redbank?‑‑‑Redbank, because people were asking questions as we went through the agreement, I would say it went for about half an hour, 45 minutes.

PN1801

Okay. And how long did the presentation go for at Huntingwood?‑‑‑I would guess about the same. All of the presentations went for about half an hour, 45 minutes, with the exception of Logan, that went for over an hour.

PN1802

So Logan went for the longest time. And of that time, how much time approximately were you focused on - was Andrew talking about the business?‑‑‑Probably about 10 per cent.

PN1803

10 per cent, okay. So he went through - - -?‑‑‑Quite quickly.

PN1804

- - - 10 of the slides. Yes?‑‑‑Yes.

PN1805

Okay. One of our key slides is this one, "What will our terms and conditions be compared to"?‑‑‑Yes.

PN1806

How much time in your presentation did you get to this slide?

PN1807

MR BROWN: Where are we now?

PN1808

MS BEYNON: The better off overall test page.

PN1809

MR BROWN: No, no ‑ ‑ ‑

PN1810

MS BEYNON: At Logan - - -

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1811

MR BROWN: ‑ ‑ ‑ which site are we at? Logan. Sorry.

PN1812

THE WITNESS: I don't remember specifically how long we spent on that slide at Logan. The presentation varied depending on how many questions people had to ask on the particular slides that we were talking about.

PN1813

MS BEYNON: What information - when you were giving this presentation - I will ask the question generally: when you were giving this presentation, what did you discuss when you reached this slide?‑‑‑What is the information that is on the slide is what we discussed.

PN1814

So you didn't go into any details about the differences between the proposed enterprise agreement and the award conditions?‑‑‑We explained the effect of the terms of the agreement to our people in great length of detail in this agreement, and we also had orange folders available at all of the sites where the copies of the awards were placed, and people were able to reference them and familiarise themself ‑ ‑ ‑

PN1815

And just in relation to this slide, when you gave the presentation you didn't go into any detail about what is better under this agreement or worse as compared to the award, you just said what was on the slide?‑‑‑We explained to the effect of the terms of the agreement in comparison to our current collective workplace agreement, and we gave the awards for people to reference and read if they had wanted more information.

PN1816

And did you give employees a copy of this?‑‑‑We had around 15 copies printed, and we distributed the copies to the people at the presentation for them to look through, and then we collect the copies back at the end of presentation.

PN1817

So not all the employees got a copy of this, and in fact - sorry, no one was allowed keep copy of this?‑‑‑They weren't allowed to keep it. We had a certain number of copies for all of our presentations. But we did also ensure that we left a number of these fliers behind which explained the agreement as well.

PN1818

Is that flier the only document that you gave to employees that provided a compare-contrast between the 2008 and the 2019 agreement?‑‑‑We provided a number of documents in the orange folders to the employees. It included a copy of the 2008 agreement, the drafts of the national enterprise agreement, the flier, the awards, relevant excerpts from the National Employment Standards, and we left them on site for people to read.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1819

But you don't know how many people read them?‑‑‑No, I can't answer that.

PN1820

It I just want to take you to - do you have Ms Tulimaiau's statement with you?‑‑‑No.

PN1821

Sorry, now I can't find it either.

PN1822

MR BROWN: We have a clean copy, if it helps.

PN1823

MS BEYNON: Thank you, that would really assist.

PN1824

MR BROWN: Are you happy with that being given?

PN1825

MS BEYNON: Absolutely. Thank you very much.

PN1826

I just want to take you to paragraph 43 of her statement?‑‑‑Yes.

PN1827

And, sorry, 44. Ms Tulimaiau says that she attempted to join in the teleconferencing, but no one answered and it just kept ringing. Are you aware whether there were any problems with employees calling in?‑‑‑No (indistinct) it's a teleconference number that we regularly use within the business.

PN1828

It was your evidence today that nobody joined in those teleconferences?‑‑‑Nobody joined the teleconferences and nobody contacted me to let me know that they had any issues joining the call.

PN1829

But you would accept Ms Tulimaiau's evidence that she attempted to call?‑‑‑Well, she says she attempted to call.

PN1830

I just want two more questions, then we're done. Ms Tulimaiau's statement at paragraph 39?‑‑‑Yes.

PN1831

It's her evidence that you said that you weren't aware that Loganholme had union delegates or representatives that order to participate in negotiations?‑‑‑That's what she says, but I don't believe that's what I said.

PN1832

I put it to you, Ms Park, that you did say words to that effect?‑‑‑That's not what I believe to be the case.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1833

That meeting was on 11 or 12 March, wasn't it?‑‑‑Yes.

PN1834

And the delegates hadn't been involved in bargaining meetings prior to that, had they?‑‑‑Had or had not?

PN1835

Had not?‑‑‑We had calls on 28 February, I think, and then the second at 8 April, from memory, with the NUW. I don't know if they were on the call and 27 February or not.

PN1836

You recall on 27 February - this is a subject of the good-faith bargaining application - that the company didn't wish for the delegates to participate?‑‑‑That's not what was said in that particular decision or - the orders were issued as a result of that decision, and we complied with those orders with regards to the good faith bargaining requests made.

PN1837

Yes, so at this point when Ms Tulimaiau is saying that you made this representation, she hadn't been involved in any bargaining meetings, had she?‑‑‑Well, unless she attended the 27th, which I can't remember. I don't know she had been or not, no.

PN1838

During the bargaining meeting of the 47th there was a lot of discussion about whether the delegates could attend. Do you recall that?‑‑‑Vaguely. Not to any level of detail that would be able to recollect.

PN1839

I will put it to you that was probably one of the main things that was discussed at that meeting?‑‑‑Okay.

PN1840

Would you agree with that?‑‑‑I can't recall the - - -

PN1841

You can't recall?‑‑‑No.

PN1842

Go down to the next paragraph here?‑‑‑Number 40?

PN1843

Number 40. Mele says that she said:

PN1844

The company is meant to be bargaining with us, we're the delegates.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1845

And it's her assertion that and restated;

PN1846

The union hasn't informed us that you want to participate, but if you would like to share your thoughts about the process, you don't have to go through the union to talk to us, you can you email us personally and we can discuss this without the union present.

PN1847

?‑‑‑I don't believe that that's what Andrew said. What Andrew did say was that both he and I were available to receive questions and speak to employees directly, and they were encouraged to contact us if they required further information.

PN1848

Do you deny that Andrew said anything about the union?‑‑‑I do deny that.

PN1849

Mr - How to say his last name?‑‑‑McGuigan.

PN1850

MR BROWN: Aslan? No. McGuigan.

PN1851

MS BEYNON: McGuigan. McGuigan. Mr McGuigan, he was with you for all of these?‑‑‑He was.

PN1852

But he hasn't provided a statement, has he?‑‑‑No.

PN1853

I've got no further questions.

PN1854

THE DEPUTY PRESIDENT: Any re-examination?

PN1855

MR BROWN: I think we're not quite ready for re-examination. We have one other - - -

PN1856

THE DEPUTY PRESIDENT: Sorry. Go ahead.

PN1857

MR PARDO: If it please the Commission, just a brief set of questions to one of our main points.

PN1858

THE DEPUTY PRESIDENT: Yes.

*** SALLY ANNE LOUISE PARK XXN MS BEYNON

PN1859

MR PARDO: I will just address the witness from here, just as my materials are here, if that's okay.

CROSS-EXAMINATION BY MR PARDO [3.22 PM]

PN1860

MR PARDO: Ms Park, much has already been made about the lack of any Saturday loading in the agreement, and that's agreed. I put it to you there's nothing stopping a casual from being rostered only on a Saturday. That's correct, isn't it?‑‑‑(No audible reply)

PN1861

If it's of assistance ‑ ‑ ‑ ?‑‑‑What is said in rostering principle 6, that store staff and standalone facility staff will not be rostered on at least one Saturday and two Sundays.

PN1862

To assist the witness, I might take the witness to the definition of a casual employee at page 18, paragraph 5 of the enterprise agreement?‑‑‑Yes.

PN1863

It is:

PN1864

Casuals are engaged on an as-required basis with a minimum number of four hours' engagement on any day that they are engaged.

PN1865

That's correct, isn't it?‑‑‑Yes.

PN1866

And there's nothing in the definition that says a casual has to work more than four hours in a week. Is that correct?‑‑‑A casual has to work?

PN1867

I will rephrase. There's nothing in that definition of casual employment that guarantees any further hours for a casual in a week more than four. Is that correct?‑‑‑Casuals are employed on an as-required, and paid by the hour.

PN1868

That's right. And I might just take you quickly to the rostering principles. Rostering principles, principle number 3, as Ms Beynon referred to, rosters are made weekly. That's correct, isn't it?‑‑‑That's correct.

PN1869

But casuals are in that definition. They're not engaged on a weekly basis, they're engaged on an as-required basis, so in principle it's possible, isn't it, for a casual to be engaged one week out of four in a month. Is that correct?‑‑‑Yes, that is correct.

*** SALLY ANNE LOUISE PARK XXN MR PARDO

PN1870

And so therefore it's in principle possible, isn't it, that a casual is engaged in one week out of four for that four hours in that one week, only on a Saturday. Is that correct?‑‑‑That's possible.

PN1871

And if I might just briefly cross-reference to your form F17 at page 20, if you have it before you?‑‑‑Yes.

PN1872

Just above the middle of the page ‑ ‑ ‑

PN1873

MR BROWN: Can I just - I'm sorry to interrupt. Which page in the F17?

PN1874

MR PARDO: Page 20.

PN1875

MR BROWN: Thank you

PN1876

MR PARDO: I will give everyone a moment to turn to the page.

PN1877

MR BROWN: Thank you.

PN1878

MR PARDO: You identify Saturday work as a less beneficial provision compared to the award, the Fast Food Industry Award. That's correct, isn't it?‑‑‑Yes.

PN1879

And under Employees Affected, you list "all". That's correct, isn't it?‑‑‑Yes.

PN1880

And that's because you know that full‑time and part-time employees under the Fast Food Industry Award are entitled to 25 per cent loading for Saturday work?‑‑‑I wasn't sure of the exact amount, but I was aware that there was a Saturday loading.

PN1881

Just to complete that line, you're also aware that casuals are entitled to a 50 per cent loading for Saturday work. And I'm happy to provide the witness with a copy of the Fast Food Industry Award?‑‑‑Is that in addition to their 25 per cent loading?

PN1882

25 per cent on top of the 25. The way it's put is:

*** SALLY ANNE LOUISE PARK XXN MR PARDO

PN1883

A 50 per cent loading on all hours of work on a Saturday for casual employees, inclusive of the casual loading.

PN1884

?‑‑‑Okay.

PN1885

So you accept that?‑‑‑Well, I now - if that's what the award says.

PN1886

MR BROWN: Maybe the witness should be given the Fast Food Award and ‑ ‑ ‑

PN1887

MR PARDO: It has been handed presently. It's at the top of that page, Ms Park. Let me know when you've read it?‑‑‑Yes, I've read it.

PN1888

And so you agree that it's a 50 per cent loading for all Saturday work for casual employees. Is that correct?‑‑‑It says:

PN1889

A 50 per cent loading for all hours of work on a Saturday for casual employees, inclusive of the casual loading.

PN1890

But I would interpret that as a base salary rate plus 50 per cent.

PN1891

Yes. Okay. You've instructed Mr Brown as your representative in this matter. Is that correct?‑‑‑Bargaining representative, or do you mean lawyer?

PN1892

Your representative in this particular matter before the Commission, the application. That's correct, isn't it?‑‑‑Yes.

PN1893

So you would have read the submissions prior to this (indistinct) is that correct?‑‑‑Yes, but I don't have a copy of them.

PN1894

I might just read from the submissions and then pass a copy to the witness, if that's okay, Deputy President.

PN1895

THE DEPUTY PRESIDENT: Yes.

PN1896

MR PARDO: I just referred briefly to the outline of submissions made by Mr Paul Brown dated 1 July 2019 at page 3, paragraph 16, the bottom of that document, bottom of that page:

*** SALLY ANNE LOUISE PARK XXN MR PARDO

PN1897

Krispy Crew: this is a table which explains the Fast Food Industry Award and the difference.

PN1898

A Krispy Crew amounts to a level 1, and by Mr Brown's calculations, that's 9.76 per cent difference benefit between your rates and the award's level 1 rates.

PN1899

And for the witness's benefit, I will hand a copy of that document to them now. Just a moment.

PN1900

Close to the bottom of page 3. It should already be turned to that table?‑‑‑Yes.

PN1901

Do you agree with that, that the difference between your base rate and the level 1 of the Fast Food Industry Award is currently 9.76 per cent?‑‑‑That's what it says here, yes.

PN1902

And so you would agree, surely, that 50 per cent is greater than 9.76 per cent. That's correct, isn't it?‑‑‑That is correct.

PN1903

So you agree, don't you, that the casual employee who you've said can in principle be rostered to work only a Saturday, is worse off under the agreement?‑‑‑Yes, that's correct.

PN1904

And just to complete the line of questioning, while you were being questioned by Ms Beynon you agreed that you did calculations to ensure that employees were better off under the agreement than the award. Did you calculate casual employees that only work Saturdays?‑‑‑No, I didn't.

PN1905

No further questions, Deputy President.

PN1906

THE DEPUTY PRESIDENT: Thank you.

RE-EXAMINATION BY MR BROWN [3.28 PM]

*** SALLY ANNE LOUISE PARK RXN MR BROWN

PN1907

MR BROWN: Could the witness ensure that she has in front her a copy of the Food, Beverage, Tobacco, Manufacturing Award 2010. You might recall that early in your cross-examination, Ms Park, a proposition was put to you without the benefit of the award in front of you that pursuant to this award, the Food, Beverage, Tobacco, Manufacturing Award 2010, that a person could only work their ordinary hours Monday to Friday. Do you remember that proposition was put to you?‑‑‑Yes.

PN1908

And you agreed with that proposition without the benefit of the modern award in front of you, didn't you?‑‑‑Yes.

PN1909

Could I please take you to page 34, clause 30.2(b). Can I take you to that page first of all?‑‑‑Yes.

PN1910

Could you carefully read all of clause 30.2(b), which starts with the words, "The ordinary hours of work may be worked", and keep reading, please?‑‑‑

PN1911

May be worked on any day or all of the days of the week, Monday to Friday. The days on which ordinary hours are worked may include Saturday and Sunday, subject to agreement between the employer and the majority of employees concerned. Agreement in this respect may also be reached between the employer and an individual employee.

PN1912

When the proposition was put to you by Ms Beynon that ordinary hours could only be worked Monday to Friday, now that you've had the benefit of reading clause 30.2(b) of the modern award, do you wish to change your evidence?‑‑‑Yes. Well, this says that they can be:

PN1913

Ordinary hours can include Saturday and Sunday, subject to agreement between the employer and the majority of employees concerned, or between the employer and an individual employee.

PN1914

Do you wish to make any comment as to how that will fit in under the enterprise agreement with the rostering principles?‑‑‑When it comes to the rostering principles:

PN1915

Rosters will be established with business needs, having regard to operational requirements, seasonal requirements, and business planning tools. When determining the roster Krispy Kreme will consider your availability, skill level, and level of responsibility.

PN1916

So if somebody is available to work on Saturday and Sunday.

PN1917

Thank you very much.

*** SALLY ANNE LOUISE PARK RXN MR BROWN

PN1918

I have no further questions in re‑examination.

PN1919

THE DEPUTY PRESIDENT: Thank you, Ms Park. You're excused.

<THE WITNESS WITHDREW [3.31 PM]

PN1920

THE DEPUTY PRESIDENT: In terms of Ms Minhas, if we call for her, we will finish by 4 o'clock?

PN1921

MR BROWN: I would like to make a start on her, yes. I'm going to give it a red-hot go. Yes. I'm confident ‑ ‑ ‑

PN1922

THE DEPUTY PRESIDENT: I just don't want it ‑ ‑ ‑

PN1923

MR BROWN: No, I'm going to give it a red-hot go ‑ ‑ ‑

PN1924

THE DEPUTY PRESIDENT: ‑ ‑ ‑ hanging over, you know, to another date.

PN1925

MR BROWN: I will give it a red-hot go. Half an hour.

PN1926

THE DEPUTY PRESIDENT: Does that mean you will finish?

PN1927

MR BROWN: I will finish by 4 o'clock

PN1928

THE DEPUTY PRESIDENT: Okay.

PN1929

MS BEYNON: I have no questions in chief.

PN1930

THE DEPUTY PRESIDENT: Okay. Thank you. Bring her in.

PN1931

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

PN1932

MS MINHAS: Pareen Minhas, (address supplied).

*** SALLY ANNE LOUISE PARK RXN MR BROWN

<PAREEN MINHAS, AFFIRMED [3.33 PM]

EXAMINATION-IN-CHIEF BY MS BEYNON [3.33 PM]

PN1933

MS BEYNON: Ms Minhas, do you have a copy of your statement in front of you?‑‑‑Yes.

PN1934

And is that a true and correct document to the best of your knowledge?‑‑‑Yes.

PN1935

And that is dated 16 August and has 16 pages?‑‑‑Yes.

PN1936

Do you wish to make any amendments to that document?‑‑‑No.

PN1937

Thank you. Deputy President, I would like to tender the witness statement of Ms Minhas.

PN1938

THE DEPUTY PRESIDENT: Yes. We will call that NUW2. Exhibit NUW2.

EXHIBIT #NUW2 WITNESS STATEMENT OF PAREEN MINHAS DATED 16/08/

PN1939

MS BEYNON: I have no questions.

PN1940

THE DEPUTY PRESIDENT: There was talk about another set of calculations. Is that ‑ ‑ ‑

PN1941

MS BEYNON: We do have another set of calculations.

PN1942

MR BROWN: And I intend to object.

PN1943

THE DEPUTY PRESIDENT: Can't they be put in through submissions anyway?

PN1944

MR BROWN: The union, if it wishes to use submissions, I can't restrict that. I was given the document at 2.06, and I'm not in a position to have that entered. That should not be, at this late hour of the day, made part of this witness's statement, because that was due some weeks ago now and we've responded to it. If my friend wants to make some submissions on what she would call mathematics, that's for submissions.

*** PAREEN MINHAS XN MS BEYNON

PN1945

THE DEPUTY PRESIDENT: Okay. How do you want to go, Ms Beynon?

PN1946

MS BEYNON: We're happy to provide the updated calculation if it assists the tribunal. The calculations are simply the same calculations we've already provided that were calculated on the basis of level 3 or grade 3 under the FBT. It's clearly our submission that that still applies to some workers. However, we have also recalculated them on the basis of grade 2 FBT, and, you know, happy to talk about them. They both show detriment.

PN1947

THE DEPUTY PRESIDENT: Okay. So you can put it in as submissions, I think. Yes.

PN1948

MS BEYNON: We can provide the calculation as part of our submissions.

PN1949

THE DEPUTY PRESIDENT: Yes.

PN1950

MS BEYNON: It's not a problem, we - yes, absolutely. The detriment is clear.

PN1951

THE DEPUTY PRESIDENT: Thank you.

CROSS-EXAMINATION BY MR BROWN [3.00 PM]

PN1952

MR BROWN: I'm struggling to find my copy of your statement. Your evidence deals with two sites, and two sites only, operated by my client. Is that correct?‑‑‑Yes.

PN1953

What sites are they?‑‑‑The Len Thomas site and the Fountain Gate site. I have attended to the retail stores, though.

PN1954

But the evidence that you've chosen to file, madam, pertains only to those two standalone sites, doesn't it?‑‑‑Yes.

PN1955

And do I take it that the sole content of your basis for your statement are the times that you attended these two sites as a union official?‑‑‑Yes, and conversations that I've had with employees working at those two sites.

PN1956

And you knew that there were directions given to your union in relation to this matter in terms of the preparation of evidence?‑‑‑I had these conversations prior to the preparation of this evidence.

*** PAREEN MINHAS XXN MR BROWN

PN1957

You know, madam, that your union was given an opportunity to put evidence forward before this tribunal in relation to this matter, don't you?‑‑‑Yes.

PN1958

So if in your conversations you met someone at either the Len Thomas or the Fountain Gate standalone facility who had a problem with how he or she was communicated with in relation to this enterprise agreement, they would have told you?‑‑‑Yes, that they would have told me.

PN1959

There would have told you that. Yes?‑‑‑If they had a problem - - -

PN1960

Yes?‑‑‑ - - - while they weren't - the problem that was - the problem that kept occurring in the conversations I was having was that they didn't - they hadn't been told about the enterprise agreement.

PN1961

Okay. And if someone said to you, "I hadn't been told about the enterprise agreement", that would have struck you as odd, wouldn't it?‑‑‑Not particularly, with how widespread that feeling was.

PN1962

And you would have said to that person, "The National Union of Workers have an opportunity to put evidence on in these proceedings. Would you like to give a statement?" That would be the logical way of dealing with that, wouldn't it?‑‑‑These conversations commenced prior to the vote had even taken place, the vote on the enterprise agreement. They commenced some months ago, before we even knew - before I was even aware that we would be putting evidence on in this proceeding.

PN1963

So you're not aware of a single employee in your experience, from your dealing of the employees at these two sites, who was prepared to put a statement on in relation to this matter, are you, madam?‑‑‑All employees I spoke to were either casual workers or they were part-time employees where their hours change every week with the discretion of the manager, Mr Aslam, and they did not feel comfortable providing evidence for the fear of retribution and their hours being cut.

PN1964

That would have been a very serious allegation to make against my client, wouldn't it?‑‑‑It's reasonable in proceedings and in matters to do with this sort of stuff that the workers, who are largely from migrant backgrounds, with little understanding of industrial relations, are afraid to be involved in the sorts of proceedings.

*** PAREEN MINHAS XXN MR BROWN

PN1965

And there's not a line of that in your statement, is there, madam? There is not one reference in your statement to what you've just told the Commission?‑‑‑There is a line of it where - - -

PN1966

Help me out. Where?‑‑‑At paragraph 98, where I said that I spoke - the majority of my conversations were - well, I will specifically say that employees have trouble understanding industrial matters in English, and I speak in Punjabi and Hindi to these workers to explain industrial matters and the agreement.

PN1967

So the totality of your evidence in relation to these two sites is that you personally had problems or trouble having discussions with them about "understanding industrial matters in English". That's it, isn't it?‑‑‑No, I didn't have trouble communicating with them in English. They have trouble understanding the concepts in English.

PN1968

But not one of those people have come forward and put on a statement in these proceedings, have they?‑‑‑I think is quite unreasonable to expect them to do that.

PN1969

Unreasonable. You don't think it's - if your union has an opportunity to provide evidence to this Commission, you say it is unreasonable that they could be asked or required to do so? Is that your evidence?‑‑‑Prior to having these conversations, which commenced before the vote; I haven't been organising the site for that long - both the sites for that long - it has only been over the past few months. These workers have had no knowledge of - little to no knowledge of Australia's industrial relations. They have had no knowledge of enterprise bargaining. They didn't understand the agreement at all. All they were told, to their understanding, was that they were getting a pay rise, and that they should vote yes if they wanted a pay rise. And then to expect them to go from that, with the culture of the site and the culture of the workplace, to come forward and put evidence through witness statements in this proceeding, I think is unreasonable.

PN1970

You see, Madam, none of that is in your statement, is it? None of that is in your statement. None of what you've just told me is ‑ ‑ ‑ ?‑‑‑We go ‑ ‑ ‑

PN1971

‑ ‑ ‑ none of it, is it?‑‑‑We go back to paragraph 98. I spoke - the conversations that I had with these workers were in Punjabi and in Hindi.

PN1972

Madam, do you - I'm going to read paragraph 98 to me(sic) and I'm going to ask you whether that remotely gets near the evidence that you've just given this Commission:

*** PAREEN MINHAS XXN MR BROWN

PN1973

In my experience of organising workers at the Len Thomas and Fountain Gate production sites I am aware that many employees do not speak English as their first language and have trouble understanding industrial matters in English. I speak Punjabi or Hindi to these workers to explain industrial matters such as the agreement.

PN1974

That's the totality of your evidence, isn't it?‑‑‑Yes.

PN1975

And you can't - and other than giving - I will retract that because I'm going to try to get this done by 4 o'clock. You've never make doughnuts at any of these two facilities, have you?‑‑‑No. I'm a union organiser, not a worker at the sites.

PN1976

You have never been present when the production of doughnuts was being made at these sites, have you?‑‑‑Yes. I've attended the Fountain Gate facility, in order to get through the lunch room, you walk past where the doughnuts are being made.

PN1977

So other than walking along the corridor at Fountain Gate where on one side you can see the production going on, that is the sum total of your actual knowledge of production of doughnuts at the Fountain Gate site?‑‑‑Yes. Right of entry provisions don't allow me to enter the actual production facility.

PN1978

I will put the question again to you, madam. Other than walking down a corridor at Fountain Gate only, where on your right side, from memory, you might be able to, if you stopped and have a look, see some production going on, that is the sum total of what you have seen in terms of the work that these people do in production?‑‑‑I have attended the Len Thomas site on numerous occasions over the past few months. I've had a lot of conversations with the production employees who work there. I understand the rules and the tasks and duties that they perform. I'm a union organiser in the food manufacturing industry. I understand the tasks and duties that are performed that these sorts of facilities.

PN1979

At the Len Thomas site, madam, you've only got to the lunch room, haven't you?‑‑‑Yes.

PN1980

So you've never entered the production area of Len Thomas?‑‑‑No.

*** PAREEN MINHAS XXN MR BROWN

PN1981

In your evidence you seem to proceed on the basis, madam, that a person - sorry, I will put the proposition different to - you accept, don't you, that a person could start at Krispy Kreme as a crew member, a Krispy Crew member, and they could seek promotion and move to the position of team leader?‑‑‑Yes, but how many team leaders are there?

PN1982

I'm going to ask you to attend to my question. It works a hell of a lot better if I ask you the questions?‑‑‑Yes, but from my knowledge and from my conversations with employees, there's only one team leader per section. There are approximately five different sections at the Len Thomas site, so only about five team leaders.

PN1983

None of that is in your evidence, is there?‑‑‑It's on the rosters.

PN1984

None of that is in your evidence, is it?‑‑‑It's not in my statement.

PN1985

You've made a number of assessments in relation to this matter about - I might just - you understand what BOOT means?‑‑‑Yes.

PN1986

Are you happy for me to say BOOT?‑‑‑Yes.

PN1987

To understand what the BOOT is, and you've made various submissions and various calculations, haven't you?‑‑‑Yes.

PN1988

And it would be fair to say that your statement, when it comes to the mathematics, exclusively relates to persons at either the Len Thomas or the Fountain Gate site who would be in the first level of the classifications that my client uses, a Krispy Crew member?‑‑‑Yes.

PN1989

You will correct me whether I'm wrong, but with respect to generalised comments, you don't go into the mathematics of the team leaders, do you?‑‑‑No.

PN1990

You don't go into the mathematics of the managers, do you?‑‑‑No.

PN1991

And do I take it from that that in looking at this enterprise agreement - and I think you tell this Commission that you're an experienced industrial officer - do I take it that other than your generalised comments, you basically don't have a particular problem with the rates of pay that are on offer for team leaders and management?‑‑‑My area of concern primarily focused on the production employees, the Krispy Crew members, because their rates of pay do not meet the BOOT test under the modern award.

*** PAREEN MINHAS XXN MR BROWN

PN1992

And of course your figures in your statement, madam, they proceed on the basis that these crew members would be a grade 3 under the modern award?‑‑‑Based on my conversations with employees, the tasks and duties performed by the majority of employees would fit under a level 3 classification. However, even where some would fit under a level 2 classification, they do not meet the BOOT test.

PN1993

And that comes exclusively from your discussions with employees in the crib room or outside of the premises.

PN1994

THE DEPUTY PRESIDENT: Sorry, is that in relation to the classifications or - - -

PN1995

MR BROWN: Sorry. I will retract the question. I will move on.

PN1996

And that conclusion that you've come to about grade 3, that comes exclusively from what people at Len Thomas and Fountain Gate told you, isn't it? That's where you got the information from?‑‑‑So in relation to the tasks and duties that they perform, it's based on the conversations, the rosters that have been provided to me that state which sections they work in and their tasks in those sections. For example on the roster it says that they work in production or processing or shipping. And these can be level - - -

PN1997

So to the extent - sorry?‑‑‑ - - - 2 to level 3 classification roles.

PN1998

To the extent that you make inclusions in your statement about whether someone is a grade 1, a grade 2 or a grade 3 under the modern award, the source of that information is in essence from the mouths of your members when you have visited two sites?‑‑‑Yes.

PN1999

And the union has chosen not to call as witnesses - please do not go on a narrative about what you believe other things are going on, just restrict yourself please do just this question. Surely there could not have been a problem with the union finding someone to come forward at either of these two sites to speak about what they did?‑‑‑That's not really my role. My role is that I've had these conversations over the past few months, the workers are told me exactly the type of jobs that they do. They're at paragraph 13 of my statement. I understand these job roles. I'm an organiser in the food manufacturing industry. I put this evidence before the Commission about these tasks and duties.

PN2000

And you're aware that Mr Talal Aslam has given evidence in these proceedings?‑‑‑Yes.

PN2001

And you know him, don't you?‑‑‑Yes.

*** PAREEN MINHAS XXN MR BROWN

PN2002

You know of him?‑‑‑I've met him on multiple occasions.

PN2003

And you would agree with me, wouldn't it, if there was an assessment as to whether people were grades 1, 2 or 3, in terms of the practicalities of what people do, he would be in a much better position to make an assessment, wouldn't he?‑‑‑Mr Aslam didn't understand the modern award until my first conversation with him.

PN2004

I will say to you again, madam, if there was to be a person - sorry. Mr Talal Aslam would be in a much better position to you to be able to describe the practicalities of what crew members do at these two sites on a day to day basis?‑‑‑I've read through Mr Aslam's statement, and he doesn't focus on the manufacturing aspect of the tasks and duties that these workers perform.

PN2005

You see, Mr Aslam has given very clear evidence in his statement that he does not regard these people, these crewmembers as grade 3. You've read that?‑‑‑Mr Aslam, I will repeat, was not aware of the classifications under the modern award, to my knowledge.

PN2006

I'm going to have to ask you to attend to the question. Okay. That's not responsive to the question that I asked. All right?‑‑‑Mr Aslam ‑ ‑ ‑

PN2007

You agree with the proposition that when it comes to describing what people do at these two sites, he is in a much better position than you to give evidence to this Commission about what people do on a day to day basis. Do you disagree with that proposition?‑‑‑Yes. I've had conversations with workers.

PN2008

So, madam, you've already given evidence that other than walking down a corridor and seeing some production going on at the Fountain Gate site, you've had no access at all to production going on at the Len Thomas site. And you want to tell this Commission that you are in a - either an equal or a better position to talk about the practicalities of what these people do on a day to day basis than Mr Aslam. You're on oath. Do you really say that?‑‑‑I think in almost an equal position, because I understand the modern award.

*** PAREEN MINHAS XXN MR BROWN

PN2009

Madam, you're either not listening to the question or you're just giving false evidence, and I have to put that to you?‑‑‑ I've had numerous conversations with these employees over the past few months. I think employees understand their tasks and duties that they perform on a day to day basis. If that information is relayed back to me, I think that I'm in a position to know what sorts of tasks and duties are performed. And I have walked past the exact position where the doughnuts are made and where these tasks and duties are carried out.

PN2010

And your union has chosen not to call a single witness from either the Len Thomas or the Fountain Gate site. True or false?‑‑‑True.

PN2011

Thank you. Now, you've made - first of all, would it surprise you - it doesn't surprise you, madam, that Mr Talal Aslam gave evidence that in his opinion, knowing about what these people do, and having regard to the modern award - and you might say he doesn't understand it - he was of the view that they were not grade 3. You know that, don't you? That's his evidence in his statement?‑‑‑Yes.

PN2012

Would it surprise you that your advocate to the union did not put in cross-examination to him this morning that that was wrong?‑‑‑That's not really a matter for me.

PN2013

I'm bound to put it to you that no one has put to Mr Talal Aslam that his belief as to the correct rating for a crew member was wrong. That has not been put to him.

PN2014

THE DEPUTY PRESIDENT: How is that a question for this witness? Isn't it just a submission?

PN2015

MR BROWN: I think it - question for this witness. I withdraw it - - -

PN2016

THE DEPUTY PRESIDENT: Ultimately he was cross-examined on ‑ ‑ ‑

PN2017

MR BROWN: No, I withdraw it.

PN2018

THE DEPUTY PRESIDENT: ‑ ‑ ‑ what he understands the duties to be, and from there isn't it a question of construction ‑ ‑ ‑

PN2019

MR BROWN: I will withdraw it to make it easier for everyone, but I will be submitting - I will be submitting very heavily on the failure to put that question to that particular witness. But that doesn't pertain to this witness, you're correct, Deputy President. I will move on.

PN2020

THE DEPUTY PRESIDENT: Yes. But again, even if it was, it would be his opinion, wouldn't it?

*** PAREEN MINHAS XXN MR BROWN

PN2021

MR BROWN: No. I will deal with it in submission.

PN2022

THE DEPUTY PRESIDENT: Yes.

PN2023

MR BROWN: I will deal with it in submission. Okay.

PN2024

So the calculations that you have made are based upon grade 3. And you understand that my client's case is that they are not grade 3?‑‑‑Yes. They are - - -

PN2025

And that they are grade 1 and grade 2. You understand that, don't you?‑‑‑Yes.

PN2026

And I've just put to you that Mr Talal Aslam would be in a better position to make any - sorry - to inform this Commission as to what people do, and you don't agree with that proposition. You think that you are somehow equal in status or knowledge?‑‑‑Yes.

PN2027

I've only got one or two more questions for you. So you've prepared your calculations based upon grade 3. But can I just take you to Ms Park's statement, please.

PN2028

This is literally the last three questions. I said I would finish by 4.00. I think we gave a copy of Ms Park's - do you have a copy - you don't have a copy?

PN2029

If I could just take you quickly to - there are a number of schedules that are set out from pages 22, paragraph 75 and 76. Have you got that?‑‑‑Mm‑hm.

PN2030

Pages 22 and 23?‑‑‑Yes.

PN2031

And Ms Park on the one hand lists what she says is the benefit, and in the next column she makes reference to whether or not there's a similar provision in the Food, Beverage and Tobacco Manufacturing Award 2010, and she describes those as the enhanced benefits. Have you got that?‑‑‑Yes.

PN2032

Now, when you go to your statement and you make comment about the BOOT, there doesn't appear, madam, to be any references at all to the enhanced benefits that have been put forward and submitted or contended by Ms Park. There is no reference to it, is there?‑‑‑No.

*** PAREEN MINHAS XXN MR BROWN

PN2033

Do I take it, madam, that when you reach the conclusions that are contained in your statement, that you had no regard to those enhanced benefits at all?‑‑‑Well, most of the enhanced benefits have no financial value; and the ones that do, only apply to a class of employees: things like free doughnuts, free beverages, discounted merchandise, that sort of stuff, is not an enhanced benefit that could supplement the conditions under the modern award.

PN2034

Applied to a grade 3?‑‑‑Applying to any grade.

PN2035

Applying to any grade? Well, a moment ago I think I asked you questions about your evidence, and I think you agree with me that your evidence was to do with - no, I retract that. I said I would be 4 o'clock. Madam, I'm just bound to put to you that the conclusions that you've reached in your statement about BOOT are erroneous. They are wrong, in that you did not have proper regard to the enhanced benefits that have taken you to in the statement of Ms Park?‑‑‑ I've just stated that the enhanced benefits don't apply to all employees, and most of which have - some of which have no financial value so cannot supplement the conditions under the modern award; and some of the other benefits, such as compassionate leave, paid parental leave, secondary carers parental leave, will never apply to all employees, and only will apply to a class of employees.

PN2036

I have no further questions.

PN2037

THE DEPUTY PRESIDENT: Thank you. Any re-examination, Ms Beynon?

PN2038

MS BEYNON: No further re-examination.

PN2039

THE DEPUTY PRESIDENT: Thank you, Ms Minhas. You're excused.

<THE WITNESS WITHDREW [4.01 PM]

PN2040

MR BROWN: I think I'm the applicant. We would seek access to the transcript.

PN2041

THE DEPUTY PRESIDENT: Yes.

PN2042

MR BROWN: I know that that can take a good seven to 10 days, in my bitter experience.

PN2043

THE DEPUTY PRESIDENT: Probably five to seven business or something, yes.

*** PAREEN MINHAS XXN MR BROWN

PN2044

MR BROWN: Could the applicant be given seven days from the receipt of the transcript to make written submissions, or an outline of submissions; could the union contradictors then be given a further seven days, or even a bit longer; and then I think you were going to ask that the parties be available for - I think in some - for talking to the submissions. I think that assists.

PN2045

THE DEPUTY PRESIDENT: Yes. I normally give parties 14, 14, seven, but ‑ ‑ ‑

PN2046

MR BROWN: We're getting close to Christmas, and these people want their agreement before Christmas. Could it be 10 and 10? 10 days from the day that the transcript arrives, we will put our submissions on 10 days afterwards; and then if we could find a date. I'm not asking for further submissions in reply. That can be dealt with orally.

PN2047

THE DEPUTY PRESIDENT: It's generally good to have the reply submissions, at least some outline ‑ ‑ ‑

PN2048

MR BROWN: Okay. 10, 10 and 10 puts us well beyond Melbourne Cup and into December, doesn't it. I know that getting dates in December in the Fair Work Commission can be tricky. Could you give us half a day in December ‑ ‑ ‑

PN2049

THE DEPUTY PRESIDENT: I'm fairly - I'm not bad in December. I think my associate will tell me, I think I'm - there might be something at the end of November as well.

PN2050

MR BROWN: If I could pick up my phone and ‑ ‑ ‑

PN2051

THE DEPUTY PRESIDENT: Yes.

PN2052

MR BROWN: I pre-empt that my friends would like to probably attend from Melbourne, and if it can be done through videoconferencing, that would have no difficulty for the applicant.

PN2053

THE DEPUTY PRESIDENT: Yes, there's plenty of notice. If it's less than seven days. Someone ‑ ‑ ‑

PN2054

MR BROWN: We've learnt that the hard way.

PN2055

THE DEPUTY PRESIDENT: ‑ ‑ ‑ has bought our bandwidth. It looks like we've got 26, 28, 29 in November; or otherwise ‑ ‑ ‑

PN2056

MR BROWN: Those dates are fine with me.

PN2057

MS BEYNON: Sorry? What?

PN2058

MR BROWN: We're trying to find a half day ‑ ‑ ‑

PN2059

THE DEPUTY PRESIDENT: 26, 28, 29.

PN2060

MS BEYNON: November?

PN2061

MR BROWN: November.

PN2062

THE DEPUTY PRESIDENT: Yes.

PN2063

MS BEYNON: I think I will be in Sydney, so that should be okay.

PN2064

THE DEPUTY PRESIDENT: Any of those days?

PN2065

MS BEYNON: I've literally just got a calendar invite for this now. I will have a look at what this is actually constituted of, if that's okay.

PN2066

MR BROWN: Just while my friend is looking at her diary, do I take it, Deputy President, that if in the preparation of submissions my client felt the desire to put forward an augmented undertaking, that we have leave to at least put that forward as part ‑ ‑ ‑

PN2067

THE DEPUTY PRESIDENT: You can put that forward any time.

PN2068

MR BROWN: Thank you.

PN2069

THE DEPUTY PRESIDENT: Yes, 26, 28, 29. You're free any of the days?

PN2070

MS BEYNON: The Wednesday to Friday of that week are the better days for me.

PN2071

THE DEPUTY PRESIDENT: Why don't we make it the Tuesday, 28 November.

PN2072

MR BROWN: 28.

PN2073

THE DEPUTY PRESIDENT: Thank you. And Mr Pardo, you're happy with it?

PN2074

MR PARDO: If it please the Commission.

PN2075

THE DEPUTY PRESIDENT: How long do you think you will need? Half a day?

PN2076

MR BROWN: I think half a day, but if we're talking to our respective submissions and submissions in reply, that makes it - it should only really be the morning.

PN2077

THE DEPUTY PRESIDENT: Yes, so it's - the morning is effectively 10 till 1.00.

PN2078

MR BROWN: The morning of the 28th, Tuesday, the 28th?

PN2079

THE DEPUTY PRESIDENT: Yes. It's just if you want longer, I've got to book the - we've got to have the room booked for longer than that. I can just set aside the whole day if you like, just in case. Assuming you might take ‑ ‑ ‑

PN2080

MR BROWN: My wiser associate says, "Set aside the whole day and get it done."

PN2081

THE DEPUTY PRESIDENT: Just so we're not ‑ ‑ ‑

PN2082

MR BROWN: She also worked for Lawson once, but that accounts for her curtness.

PN2083

THE DEPUTY PRESIDENT: Just in case we get bogged down for whatever reason.

PN2084

MR BROWN: If it were to be the 28th and we went 10, 10 - we could probably go 14, 14, 14, couldn't we?

PN2085

THE DEPUTY PRESIDENT: Yes. There's a number of issues involved, and people obviously have other things on, but ‑ ‑ ‑

PN2086

MR BROWN: So it's 14 from - 14 days from the receipt of the transcript for the applicant; 14 days from the receipt of the applicant's submissions for the union contradictors; and 14 days in further reply from the applicant.

PN2087

THE DEPUTY PRESIDENT: Sorry. Yes, Mr Pardo.

PN2088

MR PARDO: Deputy President, I just wanted to note that depending on the augmented undertaking which my friend referred to, if it be the case - the most fortunate case that the SDA has no further submissions to make, depending on the contents of that augmented undertaking, will you be at liberty to just rely on our submissions rather than be present again, just for the sake of efficiency?

PN2089

THE DEPUTY PRESIDENT: Yes. If you just let us know where you're at.

PN2090

MR PARDO: If it please the Commission.

PN2091

THE DEPUTY PRESIDENT: So we will send out directions with actual dates in them once we get the transcript, but it will be 14, 14, 7 from there.

PN2092

MR BROWN: Thank you very much.

PN2093

THE DEPUTY PRESIDENT: Is there anything else, Mr Brown?

PN2094

MR BROWN: No. But we do thank you for starting at 9.30 today. And we also thank the unions for their effective advocacy. Thank you.

PN2095

THE DEPUTY PRESIDENT: Ms Beynon, anything further?

PN2096

MS BEYNON: Nothing further, Deputy President.

PN2097

THE DEPUTY PRESIDENT: Thank you. And Mr Pardo?

PN2098

MR PARDO: Nothing further, Deputy President.

PN2099

THE DEPUTY PRESIDENT: Okay. Thank you, parties. I will now adjourn.

ADJOURNED UNTIL THURSDAY, 28 NOVEMBER 2019 [4.08 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

TALAL ASLAM, AFFIRMED........................................................................... PN624

EXAMINATION-IN-CHIEF BY MR BROWN................................................ PN624

EXHIBIT #A1 STATEMENT OF TALAL ASLAM DATED 06/09/2019 AS AMENDED PN637

CROSS-EXAMINATION BY MS BEYNON.................................................... PN638

RE-EXAMINATION BY MR BROWN............................................................. PN997

THE WITNESS WITHDREW.......................................................................... PN1016

SALLY ANNE LOUISE PARK, AFFIRMED................................................ PN1023

EXAMINATION-IN-CHIEF BY MR BROWN.............................................. PN1023

EXHIBIT #A2 STATEMENT OF SALLY ANNE LOUISE PARK DATED 05/09/2019............................................................................................................................... PN1033

CROSS-EXAMINATION BY MS BEYNON.................................................. PN1034

THE WITNESS WITHDREW.......................................................................... PN1230

SALLY ANNE LOUISE PARK, RECALLED............................................... PN1231

CROSS-EXAMINATION BY MS BEYNON, CONTINUING..................... PN1231

THE WITNESS WITHDREW.......................................................................... PN1510

SALLY ANNE LOUISE PARK, RECALLED............................................... PN1511

CROSS-EXAMINATION BY MS BEYNON, CONTINUING..................... PN1511

CROSS-EXAMINATION BY MR PARDO.................................................... PN1859

RE-EXAMINATION BY MR BROWN........................................................... PN1906

THE WITNESS WITHDREW.......................................................................... PN1919

PAREEN MINHAS, AFFIRMED..................................................................... PN1932

EXAMINATION-IN-CHIEF BY MS BEYNON............................................. PN1932

EXHIBIT #NUW2 WITNESS STATEMENT OF PAREEN MINHAS DATED 16/08/............................................................................................................................... PN1938

CROSS-EXAMINATION BY MR BROWN................................................... PN1951

THE WITNESS WITHDREW.......................................................................... PN2039

Fair Work Commission Transcripts

AG2019/1416, Transcript of Proceedings [2019] FWCTrans 288 (21 October 2019)