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Fair Work Australia Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 61963-1
SENIOR DEPUTY PRESIDENT HAMBERGER
C2011/195
s.739 - Application to deal with a dispute
Endeavour Energy
and
Australian Municipal, Administrative, Clerical and Services Union
(C2011/195)
Endeavour Energy Enterprise Agreement 2010
(ODN AG2011/7448)
[AE884794 Print PR507844]]
Sydney
9.37AM, WEDNESDAY, 24 AUGUST 2011
Continued from 22/08/2011
Reserved for Decision
THE SENIOR DEPUTY PRESIDENT: We are going to call - - -
PN962
MR PHILIPS: Mr Ferguson is present, your Honour, and I'm able to call him now.
PN963
THE SENIOR DEPUTY PRESIDENT: Okay, great, thanks.
<DREW KENNETH FERGUSON, SWORN [9.38AM]
<EXAMINATION-IN-CHIEF BY MR PHILIPS [9.38AM]
MR PHILIPS: Sir, now your name is Drew Ferguson?---It is.
PN965
Now, for the purposes of these proceedings, you have provided a statement for 10 August 2011?---I have.
PN966
Sir, you can assume that statement is in evidence before his Honour and is exhibit E5 in these proceedings. You have a copy of that in front of you, Mr Ferguson?---I do.
PN967
Mr Ferguson, firstly can I show you a document which is entitled exhibit E6. If you just ignore my highlighting on that document. Mr Ferguson, were you the author or creator of that document?---No, I wasn't the author or creator. No.
PN968
Would you please tell his Honour - has your Honour got the document? It's that one page document, I think Mr Collimer produced?
PN969
THE SENIOR DEPUTY PRESIDENT: Okay, I remember what it is, okay. Carry on.
PN970
MR PHILIPS: Thank you.
PN971
Could you please describe to his Honour the circumstances by which - I mean the document bears your name at its foot. Could you please tell his Honour how that document, or documents of that character, come to have your name on the bottom of them and how they come to your attention?---These typically were the outcome of a process of review or initiation of a business case for a take-home vehicle. Typically my section managers, those reporting to me, would provide substantial reason that would be documented and would be handed to me for endorsement slash approval for that vehicle to be taken home for the purposes of business - business use application.
**** DREW KENNETH FERGUSON XN MR PHILIPS
PN972
Referring to that document, Mr Ferguson, it refers to a company procedure GTT0016?---Correct.
PN973
Can I show you a document?---Thank you.
PN974
Now, is that document the company procedure referred to in exhibit E6?---I believe so, yes.
PN975
Could you just have a look at it, and just satisfy yourself that that was the policy?
---Yes, I believe so.
PN976
Could you just go back to page 1 of that policy. Could you please just describe the approval date on the front page of the document?---14 December 2001.
PN977
So to the best of your knowledge, was this the vehicle policy in force at the then Integral Energy, as at 14 December 2001?---Yes, I'd say so. Yes.
PN978
Is that the policy by which approvals such as the one in exhibit E6, is judged?
---Yes, that's correct. Yes.
PN979
Your Honour, I tender company procedure GTT0016.
PN980
THE SENIOR DEPUTY PRESIDENT: Okay. Is this - we're up to E7? No, we've done E7. E8, that's this one. So this document is company procedure approval date 14 December 2001, is E8.
EXHIBIT #E8 COMPANY PROCEDURE DOCUMENT GTT0016 DATED 14/12/2001
MR PHILIPS: Thank you, your Honour.
**** DREW KENNETH FERGUSON XN MR PHILIPS
PN982
Mr Ferguson, are you able to say from your knowledge, how long that procedure remained in force?---GTT0016 was the predecessor to the current document, GTT0019. So I think it's an iteration of, and therefore it's still current.
PN983
Can I just refer you to paragraph 5 of your statement?---Yes.
PN984
In paragraph 5, you describe, I think, the circumstances of the proposal to close the depot at Wetherill Park?---That's correct.
PN985
And the meeting that you had out at that depot?---Correct.
PN986
Could you please tell the tribunal your recollection of the circumstances of that meeting and what was said in the meeting?---So to the best of my recollection, that was a depot meeting. Myself, direct reports, were in attendance, as were I think the majority of members of the Wetherill Park depot.
PN987
How many men would that be?---20, 25 I think.
PN988
Would that include persons such as, you know, Mr Turner or Mr Collimer?
---Mr Turner, yes; Mr Collimer, no.
PN989
And Mr Prike?---Prike - I'm not familiar with Mr Prike at all.
PN990
And Mr Thompson?---A Mr Thompson, but I don't believe it's the one that's referred to in other submissions.
PN991
A Mr Balatka?---No, he was at Narellan, Minto - - -
PN992
Could you please describe your recollection of that meeting?---The purpose of the meeting, I think, the one I recall was in the meal room at that depot, and it was a discussion on the closure of the depot and the arrangements that would be made in terms of organising work going forward from that date. Part of that was around the staff's belief that there was inefficiencies in travelling from where they live to the new home depot, Hoxton Park, and the proposition that, you know, where we could organise work to be made efficient. We would entertain the thought of take-home vehicles.
**** DREW KENNETH FERGUSON XN MR PHILIPS
PN993
Was that the only discussion about take-home vehicles in that meeting?---The only discussion on take home?
PN994
Yes?---Look, to the best of my recollection, the only official discussions were with those group meetings, yes. There may have been another group meeting, I recall one vividly. But, yes - - -
PN995
I mean, do you recall speaking to any individual worker about the provision of a take-home vehicle to that work?---No, I don't have a strong recollection of any of those sorts of individual discussions, no.
PN996
Was it part of your role, at that time, to have those individual discussions?---No, I was in the role of the maintenance operations manager. There was another level of management below me who was directly in control of those staff, and my function there was, you know, holistically in the closure and in the arrangements that were to go in chain with that.
PN997
Thank you, Mr Ferguson, I have no further questions.
PN998
THE SENIOR DEPUTY PRESIDENT: Thanks.
<CROSS-EXAMINATION BY MR McKIMIN [9.46AM]
MR McKIMIN: Good morning, Mr Ferguson?---Good morning.
PN1000
You've identified - sorry, you've been provided with a copy of E6, which is a document which was originally handed to the tribunal through the evidence of Mr Sean Collimer. Is that a business case document? Is that what you refer to as a business case document?---No, there would have been other supporting information that I would have seen, prior to the preparation of this for sign off.
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1001
So what do you call that document?---This document?
PN1002
That document?---E6? I'd say this is the approval document, the document that would have been submitted for approval. My signature would have been - one expectation would have been it had been passed on to Mr Fleck.
PN1003
You identified in your evidence just before that, this document was the outcome of a review that was undertaken in 2003?---Correct.
PN1004
What was the purpose of that review in 2003?---It was a part of the policy, the policy required that these provisions were reviewed. I'm unsure whether it was annually or biannually, and so all for the implementation of a new take-home business case arrangement.
PN1005
So prior to 2003, had you undertaken any such review?---Yes.
PN1006
How often before 2003?---It would have been built into my annual reviews, various reviews and various issues. This would have been one of the things that I would have done on an annual basis.
PN1007
At what year did you start in the position where you were responsible for that review?---2000.
PN1008
I put it to you that that document, the document provided in December 2003, is the first document received by a number of staff relating to their existing take-home vehicle usage.
PN1009
MR PHILIPS: Your Honour, I just object to that just in terms of form, because the document only applies to one fellow, Mr Collimer. I mean there's - - -
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1010
THE SENIOR DEPUTY PRESIDENT: Did you want to rephrase the question?
PN1011
MR McKIMIN: I withdraw that question, your Honour.
PN1012
THE SENIOR DEPUTY PRESIDENT: Okay.
PN1013
MR McKIMIN: In that document, it identifies policy GTT0016. In your evidence just given, you stated that you believe that that
policy is still current?
---I believe that it has been in various iterations, it's now GTT0019.
PN1014
So the policy number GTT0016, is not the effective policy today?---As of today, I don't believe so.
PN1015
Under that policy - do you have a copy of that policy?---I gave it in as evidence.
PN1016
If I can have a copy of that - a marked copy. If I take you to page 10 of that policy. Point 6 of that policy or paragraph 6, identifies authorities and responsibilities. Can you identify which position is yours within that list?---With respect to the date of 2003?
PN1017
Yes, at the time that vehicle document was distributed?---Branch manager.
PN1018
You were the branch manager at that time?---Yes.
PN1019
Are you aware, at that time, of distributing the document in 2003, that employees were currently taking home - currently had entitlements to take-home vehicle usage?---Yes, vehicles were being allocated for take-home use, prior to 2003.
PN1020
Are you aware of any situation where an employee had take-home usage that - as you've just described - without approval under the policy processes?---No, I'm not aware of anyone taking home unauthorised - taking a vehicle unauthorised.
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1021
I didn't say "unauthorised", I just meant not approved by the process in the policy?
---No, not to the best of my recollection.
PN1022
I take you to your statement. Do you have a copy of your statement in front of you?---Yes, I do.
PN1023
I take you to your statement at paragraph 22. Am I right in assuming that your reference to Mr Houston, Mr Conner, Mr Trigg, Mr Power and Mr Chester in that paragraph, comes from reviewing the statement of Mr Brad Currey and its annexures?---Sorry, I've not seen Mr Currey's statement.
PN1024
You haven't seen a statement of Mr Currey?---No
PN1025
When you say with respect to the remaining workers and identify a number of names, what are you referring to there?---A submission, I think, from Mr Turner. The document - - -
PN1026
I put it to you that Mr Turner does not, in his submission, reference any of those names?---If you give me a look at the document, I can tell you the author, I'm sure.
PN1027
Excuse me, your Honour, while I just try and find that statement. If I can hand up to the witness a copy of the statement of Mr Turner, as was - I believe this was marked U4 in proceedings, your Honour.
PN1028
Do you see anywhere in that statement, the names you referred to in paragraph 22?---No, I don't.
PN1029
If you can keep that at hand for a moment, I take you to paragraph 18 of your statement?---Yes.
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1030
Which is on the same page, paragraph 22, where you identify Mr Prike and Mr Thompson's allegations. Do you make your - are the facts in your statement in paragraph 18, having read the statements of Mr Prike and Mr Thompson?---Yes, I have read paragraphs of - - -
PN1031
So you're aware of those?---- - - Mr Prike and Mr Thompson's, yes.
PN1032
I put it to you that the statements you've made - that the statements you make at paragraph 22 of your statement, are just your opinion,
and are not based on fact?
---No, they're - "With the remaining workers; Mr Houston, Mr Conner, Mr Trigg, Mr Power, Mr Chester; they would have had access
to take-home vehicles if the business case, in accordance with the policy, permitted or called for it." That's the way I would
have endorsed a business case application.
PN1033
Are you aware that they had take-home access?---Mr Houston, yes; Mr Conner, yes; Mr Trigg, yes; Mr Power, Mr Chester, not familiar with entirely.
PN1034
How are you aware that they had take-home vehicle usage entitlements?---During my period as the branch manager at Hoxton Park depot, Mr Houston was based there. Mr Conner was based at Minto originally then Narellan depot and I was aware of his circumstances. Mr Trigg, Mr Power; both ex Fairfield depot based, then controlled from Hoxton Park depot where I was the branch manager. So yes, I'd been conscious and aware of the fact that they had take-home vehicles, and from time to time had reviewed the business case and its legitimacy.
PN1035
I take you now to paragraph 23 of your statement, where you give an example. Is this your opinion?---Well, that's a statement of the way the stand-by arrangements were made.
PN1036
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
I put it to you that some of the names in paragraph 22, and I identify Mr Conner specifically, was never on a stand-by arrangement that you discuss and talk about in paragraph 23, and then expand upon in paragraphs 24 and 25.
PN1037
MR PHILIPS: Perhaps, your Honour, can I just object to the form of that question. Paragraph 23 does not purport to cover all of the workers. It says for example, "Some of these workers", so - - -
PN1038
MR McKIMIN: Apologies, your Honour.
PN1039
In paragraph 23, are you referring to the names you identify in paragraph 22 of this document?---No. Not specifically.
PN1040
So in paragraph 23 you're just being general - - -?---More general, yes.
PN1041
- - - and not relating to any specific facts?---Well, not relating to the descriptions of Mr Houston particularly. He was not on a stand-by roster. But the arrangements for stand-by, where I'm aware Mr Trigg, Mr Power, and I believe Mr Conner was at some point on a stand-by roster or on call, so he had the need to have a vehicle at home for that, as a business driver.
PN1042
So that is - I put it to you that the statements you make in 23 do not relate to Mr Conner?---Look, Mr Conner, to the best of my recollection, was available and on stand-by.
PN1043
I put it to you again that he was not on stand-by, but that the company provided to him take-home vehicle usage, and because he had that usage they then called him whenever they felt they needed him?---No, that's incorrect. Mr Conner had take-home use of that vehicle as a jointer, based at Narellan depot. He was on stand-by and was regularly called out, and he also had that vehicle for on the job starts for the work he did in the underground residential jointing work, laying and jointing cables.
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1044
In your statement at paragraph 23 and the evidence you've just given, you do identify that, "Some of these workers" - whether that applied to Mr Conner or not - "were on stand-by roster, and if they were on stand-by roster we would give them access to take-home vehicles." Is that correct?---That's correct, yes.
PN1045
A few comments ago, you said you weren't sure if Mr Conner was on stand-by roster, but do you now still assert that Mr Conner had access to a vehicle for being on a stand-by roster?---Mr Conner was regularly called out, my recollection is that he was on a stand-by roster, but I can confirm that he was regularly called out. In fact, Mr Conner regularly suffered the effects of stand-down, so he was a regular person available for after hours work, and participated in that actively.
PN1046
Can you identify the difference, for the tribunal, the difference between a call-out and a stand-by roster?---I should cite the award. The difference I think is the stand-by roster provides for a nomination to be on a roster, either one week in four or a process where your availability is guaranteed. You are notified directly, usually from the control room and allocated work after hours. If the job - and so hence your availability is ensured, and the response by the organisation can be guaranteed. You may, from time to time, require the assistance of others. Those people are not on the roster, and typically what occurs there is that someone contacts an additional worker, and that worker is then provided with what's referred to as a call-out. So there's a different minimum payment made for each of those circumstances, the first provision is that you are the first point of contact and your contact is guaranteed, that's the provision of stand-by.
PN1047
So I take you to paragraph 25 of your statement, where you specifically refer to supervisors. Did this arrangement also apply to other employees who were subject to call-out, other that supervisors?---Provided with a vehicle for - - -
PN1048
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
The arrangements you talk about in 23 and 24 of your statement?---I can't think of a situation or a circumstance where someone other than, someone on stand-by or someone on-call like a supervisor, would be allocated a take-home vehicle for that purpose.
PN1049
Can you advise me what your recollection of Mr Conner's position was at that time?---He was - as I said before, he was a cable jointer, working from Narellan depot. Typically working on underground residential work, so he was installing new cabling and jointing new cabling in new growth areas. In that period - - -
PN1050
Was he a supervisor, for the purpose of paragraph 25 of your statement?---No, I don't believe so.
PN1051
But Mr Conner did have take-home use of a vehicle, for the purposes of being able to be called out by the company at any time?---No, I think Mr Conner had take-home vehicle on the premise that he was on the job start, was his pre-eminent reason. The fact that he was available for call-outs was secondary, or supportive.
PN1052
I take you to paragraph 5 of your statement, which I believe my friend led you to earlier and discussed your role. Can you advise
what year paragraph 5 relates to?
---Yes, I don't have a firm date in my mind, other than it was around that 98, 99.
PN1053
What was your position at that time, at paragraph 5?---Maintenance operation manager. So not a branch manager, as such, I was probably, in today's jargon, a section manager.
PN1054
In that role as section manager you had responsibility for coordinating and directing staff?---My direct reports were the level between myself and the leading hand. So the staff on the trucks.
PN1055
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
Did that position you held at that time have responsibility for providing take-home vehicle usage?---Sorry - - -
PN1056
The position you held in 1998, 99; you identified as maintenance operations manager?---Yes.
PN1057
Did that position have responsibility for providing entitlements to take-home vehicle use?---No, my role was to review and approve business cases for a variety of issues, within the Fairfield case it extended to the take home - - -
PN1058
So you agree that your position had a role in approving take-home vehicle usage?
---Correct, approval of the business case for take-home use.
PN1059
At paragraph 5(d), you identify what was decided in relation to the Wetherill Park. What was your involvement in that decision?---The proposal to close the depot, as I explained earlier, was to find a way to make the - effect the work that needed to be conducted, and the discussions with staff principally centred around provision of logistic support, provision of the fundamentals; you know, in terms of tools, equipment, PPE; and also with respect to the location staff and the work, the issue around take-home vehicles was not losing time or efficiency going to Hoxton Park, but to go straight to the work site, and so that was a discussion around how that could be enacted, to provide the right sort of efficiencies.
PN1060
Being involved in such a large operation, and a large coordination of employees, and you mentioned earlier that there was 20 to 25 employees involved. Was Mr Turner involved as one of those employees?---He was involved in the Wetherill Park closure, yes.
PN1061
Was Mr Turner involved as a union delegate in those discussions revolving around - - -?---I don't recall what his role was.
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1062
At paragraph 6, you also mention that you don't recall ever personally promising Mr Turner he could have take-home vehicle. What do you mean by, you "don't recall"?---I don't recall a discussion with Mark Turner that - me personally guaranteeing him, that he could have a take-home vehicle.
PN1063
Are you saying that a discussion could not have occurred?---No.
PN1064
So in effect you're saying you can't remember if a discussion did or didn't occur?
---I don't recall a discussion with Mark, specifically, where I gave him a guarantee that he would have take-home use of a vehicle.
PN1065
Would you accept the proposition that there could have been such a discussion?
---In the nature of the work that I did, and being where I was and doing what I was doing, I could have easily spoken to a lot of
people about things, and I was very approachable, and we may have discussed the rationale and we may have discussed the proposition
of how this would work. But I don't have a clear recollection of saying to Mark Turner, "That's your vehicle."
PN1066
Thank you. I take you to paragraph 7 of your statement, where you identify that what you have described in paragraph 6 above, was the management response to paraphrase in terms of utilising take-home vehicles. Were you directly involved in developing this management response?---Yes, I think there was two or three of us involved, but - yes, an active role.
PN1067
In paragraph 7, do you mean to refer to paragraph 6?---Yes. What do you mean?
PN1068
Can you identify in paragraph 6 what the management response actually is?
---That the depot would be closed, that there would be implementation of a variety of different initiatives to make the closure of
the depot work, one of which was more effective use of start on the job, which would require the use of - - -
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1069
THE SENIOR DEPUTY PRESIDENT: Yes, I think that's more outlined in paragraph 5 of your - have you got your statement?---Yes.
PN1070
I think it's probably more 5 I think you're referring to - yes or no? Well, 6 only refers to - - -?---Mr Turner.
PN1071
- - - whether you personally promised Mr Turner he could have a take-home vehicle?---Yes, which - he certainly was part of the depot, which was closed, and so therefore he was part of the line crews affected.
PN1072
Okay?---So I think that's the bit I'm saying is pertinent to 7.
PN1073
I see, okay.
PN1074
MR McKIMIN: I take you to paragraph 10 of your statement, and you identify that you're not sure whether Mr Thompson and/or Mr Balatka were reporting to you around 2000 and 2001. What do you mean by, you're "not sure" that they were reporting to you?---In 2000, there was a change in structure, and the role that I had been in changed, and I got a job as a branch manager. Mr Balatka and Mr Thompson - and I think I explained it in another paragraph there where I talk about the structure was split into construction and maintenance. I was in charge of what was referred to as the external construction branch. I'm not sure - I didn't look back over all the records to find out whether Mr Thompson and Balatka were then reporting to me in that structure. I'm just not sure whether they were in the maintenance or the construction arm.
PN1075
So I take it you've read the statements submitted by Mr Thompson and Mr Balatka?---I don't think I've read their statements, I think I've seen a summary of the issues.
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1076
So you haven't seen their statement as such?---I don't believe so.
PN1077
Yet at paragraph 11 you say, "I refer to Mr Thompson's statement where he talks about written approval. Do you still agree that you refer to his statement?---Well, the information that I've read, is a direct lift from that. It's an assertion by Mr Thompson.
PN1078
Was that the signed statement of Mr Thompson as far as you recollect?---I don't recall. If you've got it there I'll have a look at it if you wish.
PN1079
I can hand up to the witness the statement of Mr Thompson -Mr Daniel Thompson. I believe this was marked U7 in these proceedings. Have you have a chance to look at that document?---Yes. I don't believe I've seen this document.
PN1080
At paragraph 11 you make submissions to this tribunal to promote evidence in support of this case where you specifically say that you refer to Mr Thompson's statement. Is that correct?---Just say that again.
PN1081
At paragraph 11 you make a statement to be submitted as evidence before this tribunal that you have - that you give this evidence in reference to Mr Thompson's statement. Is that correct?---That's correct.
PN1082
Yet you just identified that you have not seen Mr Thompson's statement?---I have seen the parts of Mr Thompson's statement that refer to my requirement for a response.
PN1083
But you had not seen that statement?---No, I have not seen this full statement.
PN1084
Can I ask you from your recollection if you've seen the statement of Mr Balatka, then?---If you've got it I'll have a look. I doubt it.
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1085
Can you hand that to the witness? Your Honour, I don't have a marker for this statement unfortunately to refer you to.
PN1086
THE SENIOR DEPUTY PRESIDENT: Okay. It's fine.
PN1087
THE WITNESS: No, I haven't seen that.
PN1088
MR McKIMIN: I think we're all a little lost. Can you just repeat for the tribunal what you just said?---I haven't seen that full statement.
PN1089
Yet in your submission you make - - -
PN1090
THE SENIOR DEPUTY PRESIDENT: This is U8 we're dealing with.
PN1091
MR McKIMIN: Was that tendered, your Honour?
PN1092
THE SENIOR DEPUTY PRESIDENT: My copy has got U8 written on it, but maybe we never - maybe I never told them. Maybe it wasn't tendered.
PN1093
MR McKIMIN: I do apologise.
PN1094
THE SENIOR DEPUTY PRESIDENT: Maybe it wasn't tendered.
PN1095
MR McKIMIN: If it wasn't tendered it would have been - - -
PN1096
THE SENIOR DEPUTY PRESIDENT: I've actually written - okay. I actually wrote down - actually, my notes say that it is U8, but maybe - - -
PN1097
MR McKIMIN: U8?
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1098
THE SENIOR DEPUTY PRESIDENT: Yes. I think we can accept it as - - -
PN1099
MR McKIMIN: Your Honour, if it hasn't been tendered, I did intend to tender that at the time.
PN1100
THE SENIOR DEPUTY PRESIDENT: Yes. I think if we - won't make an issue about it. So we'll call Mr Balatka's statement U8.
EXHIBIT #U8 STATEMENT OF MR BALATKA
MR McKIMIN: So I take you to paragraph 16 of your statement where you talk about the allegations of Mr Balatka. At the time of making your statement at paragraph 16, do you confirm that you had not seen that statement of Mr Balatka?---I haven't seen the statement. I was privy to the reference to myself in the statement.
PN1102
But you had not seen the statement before you?---Not the full statement.
PN1103
I take you back to - actually, I'll just review that. Excuse me, your Honour, I just need to find where I was at. Can I take you to paragraph 17 of the statement where you refer to a Mr Swift's document? Can you identify what document you were referring to at that time?---Mr Swift had made an assertion that the role that he applied for, I think, is tech support and it was the provision of a vehicle.
PN1104
Your Honour, this document was tendered as part of the annexures to Mr Brad Currey's statement. It is a short way in, probably about five pages or so. If I can show that to his Honour and then if I can have it handed to the witness.
PN1105
THE SENIOR DEPUTY PRESIDENT: So this was tendered?
PN1106
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
MR McKIMIN: This was tendered as an annexure to the statement of Mr Bradley Currey. It's also about five or 10 pages into those annexures.
PN1107
THE SENIOR DEPUTY PRESIDENT: Okay. I'll find it.
PN1108
MR McKIMIN: Have you found that?
PN1109
THE SENIOR DEPUTY PRESIDENT: Well, I've got it here, but I can't find it.
PN1110
MR McKIMIN: Your Honour, I can hand up a copy of that if you'd prefer.
PN1111
THE SENIOR DEPUTY PRESIDENT: This is one page technical support officer, level 1.
PN1112
MR McKIMIN: That's right.
PN1113
THE SENIOR DEPUTY PRESIDENT: Yes. I've got it here. That's fine. Have you got another copy or do you need to - I can't actually - I've got a statement of Mr Currey in here, but there - you know, it was tab BC - - -
PN1114
MR McKIMIN: We have another copy that we can hand to the witness.
PN1115
THE SENIOR DEPUTY PRESIDENT: Okay.
PN1116
MR McKIMIN: Mr Ferguson, is that the document you refer to in paragraph 17 of your statement?---No. This is a job ad.
PN1117
Can you identify -
PN1118
THE SENIOR DEPUTY PRESIDENT: So what document are you talking about?
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1119
MR McKIMIN: This is the other documents that were provided by Mr Swift.
PN1120
THE SENIOR DEPUTY PRESIDENT: So where is this?
PN1121
MR McKIMIN: It's part of the annexures. I've got another copy here if I can hand that up.
PN1122
THE SENIOR DEPUTY PRESIDENT: Sorry, can you just describe - - -
PN1123
MR McKIMIN: I do have another copy too if it would speed things along.
PN1124
THE SENIOR DEPUTY PRESIDENT: Okay. Yes. I've got it. Hang on. Is this the - - -
PN1125
MR McKIMIN: It starts with notice of grievance or complaint, and it has a number of pages. The original document which I sought to show to the witness is included in that.
PN1126
THE SENIOR DEPUTY PRESIDENT: Yes. Okay.
PN1127
MR McKIMIN: In your statement you identify that you were not specifically involved in this matter. What do you mean by you were not specifically involved in this matter?---The appointment of Mr Swift to the role of tech support and the issue of a vehicle.
PN1128
You have a copy of the job advertisement for that role before you, do you?---Yes.
PN1129
That document was submitted as evidence in this matter, and his Honour has a copy of that. Is it your understanding that positions such as these were often advertised as having take-home vehicle entitlements?---Tech support roles in particular? I believe they were.
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1130
Do you agree that that document identifies an agreement for the holder of that position to have entitlement to take-home use?---Of the position at Bowenfels depot of a tech support level 1 if it's advertised, yes.
PN1131
Would you agree that that was a custom as you say in your - in the final line of your statement at point 17, "From time to time made available to the occupant of the position that Mr Swift was in, even though the position for all intents and purposes was office based"?---That's correct.
PN1132
Do you agree that that identifies a custom, that their entitlements to take-home use that were not directly related to the requirements
of the motor vehicle policy?
---No. I think there was a business driver for the vehicle to be included as part of the deal.
PN1133
So you agree that it was included as part of the deal for that position?---That's my understanding, yes.
PN1134
Just one moment, your Honour. I no longer require the witness to review those documents, your Honour. I'd take you to paragraph 19 of your statement. I take you to paragraph 18 of your statement to start with, relating to - prior to Mr Thompson's allegations that the position description provides for a take-home vehicle. What do you identify as being the position description?---There is not a position description for a line worker or a cable jointer as such.
PN1135
Is there a position description for a leading hand in any of those positions?---No. I don't believe so.
PN1136
THE SENIOR DEPUTY PRESIDENT: So can I - just on that point, If you look at the policy that applied - you say applied back in 2001, actually under the section 5.0.25, permitted usage of take-home vehicles, I think it actually says, doesn't it, that - hang on, not - 5.0.24, "Such a requirement shall be documented in an employee's position description." This is the requirements in relation to - that would justify assigning a take-home vehicle. So you're saying that he didn't actually have position descriptions?---That would have been more applicable for the roles like supervisor. So beyond the base trade, you know, when you're into the supervisory levels there'd be position descriptions that would articulate that there's a requirement to be available or on call.
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1137
But the people that - the positions, I should say, that paragraph 24 are referring to, presuming that these aren't just senior or supervisory positions, these are all position, potentially - - -?---Yes, they'd have applications.
PN1138
So you're saying even though it says, "Such a requirement shall be documented in the employee's position description," in fact they didn't exist. They weren't position descriptions. Not even generic ones? You know, ones as they - you know for all these positions, there's the description?---No, my recollection is that they were covered off by the descriptions that went with the competencies, and in the different competency levels there might be reference to the ability to work in - on stand-by or on call-out situations, emergency situations. That would mean that that individual who had started at a level 1 trade would aspire to become a level 5, ultimately, and there would be different competency acquired along the way, one of which would relate to the - you know, their capability to be available for on-call type work or work in emergency situations which would also have that same connotation and be entitled to consideration under those circumstances.
PN1139
Yes. But they weren't position descriptions?---No. They were competency assessments, competency model for - yes.
PN1140
But would there be - okay. So there's not one of those for each position or anything like that?---There is - well - - -
PN1141
Or then anyway?---The competency model would have covered the classifications of line worker, cable jointer, electrician, technician and a range of different things. So they're fairly - they're not broad in the whole, you know, across just general trade, they're more specific to the stream of work, and that's where the alignment could be seen.
PN1142
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
Okay. Thanks.
PN1143
MR McKIMIN: If I can take you back to the documents of Mr Swift which I believe you still have in front of you, I take it from your evidence that you gave on that and the recent evidence about there being no specific position description for each role that an employee applying for that position, which is identified in that document would understand that the position as an entitlement had a take-home vehicle?
PN1144
MR PHILIPS: Well, I object to that.
PN1145
THE SENIOR DEPUTY PRESIDENT: Well, yes, I don't see how he could know. Unless you can think of a way of rephrasing it.
PN1146
MR McKIMIN: I'll rephrase that. As management of employees, did you manage - were you responsible for overseeing employees of that
description?
---Not directly. They were again probably one to two levels below my title position.
PN1147
If I take you back to paragraph 19 of your statement where you identify that you could well imagine that there might be a document
saying, "As part of your commitment we allocate or provide a take-home vehicle." Is this your opinion?
---Yes. It's - yes.
PN1148
In your opinion - sorry, in your knowledge was there employees not required to be on a stand-by roster that were provided a take-home vehicle?---Just clarify that. So employees who were not on a stand-by roster - - -
PN1149
That were not on a stand-by roster?---- - - that could still have taken a business use for the motor vehicle?
**** DREW KENNETH FERGUSON XXN MR MCKIMIN
PN1150
Yes?---Yes.
PN1151
I put it to you that the leading hand positions are one of those positions or were one of those positions at that time?---Too broad a definition to say all leading hands.
PN1152
Are you aware of any document that - sorry, I retract that. Are you aware of any arrangement saying that, "As part of your commitment
to be a leading hand," for example an linesman, "you will be provided with take-home use of a vehicle"?
---Certainly not. I'm not aware of anyone saying to a leading hand that, "Because of your position or status as a leading hand
you get a take-home vehicle." That is incorrect.
PN1153
Excuse me for a moment, your Honour. Sorry to keep you so long. I'm just trying to work out which ones I've covered off already. Your Honour, I think that's all the questions I have for this witness.
PN1154
THE SENIOR DEPUTY PRESIDENT: Thanks very much, Mr McKimin.
<RE-EXAMINATION BY MR PHILIPS [10.39AM]
MR PHILIPS: I just have a couple of questions for re-examination.
PN1156
Just before my friend finished he asked you whether an employee who is not on the stand-by roster could have take-home use. I think you answered in the affirmative to that question?---Correct.
PN1157
Tell me, if the employee started or finished on the job, that would be a circumstance where they could have access to a take-home vehicle?---That's correct. The criteria would be a business - identified business need for on the job staff.
**** DREW KENNETH FERGUSON RXN MR PHILIPS
PN1158
That would be in accordance with the policy as it was at the time?---Correct.
PN1159
Now, you were also asking questions about Mr Swift's take-home vehicle. Now, firstly what's your knowledge about how take-home vehicles
were allocated?
---Business need, principally.
PN1160
Are they allocated to the person or to the position that the person occupies?---To the position.
PN1161
Thank you.
PN1162
THE SENIOR DEPUTY PRESIDENT: Thanks very much. Thank you. You're excused. Thanks for coming in today.
<THE WITNESS WITHDREW [10.40AM]
THE SENIOR DEPUTY PRESIDENT: I was sort of thinking we might have a short adjournment. So you're happy to go straight into submissions?
PN1164
MR PHILIPS: Yes, your Honour.
PN1165
THE SENIOR DEPUTY PRESIDENT: We might just take 10 minutes.
PN1166
MR PHILIPS: 10 minutes? So 20 past?
PN1167
THE SENIOR DEPUTY PRESIDENT: Yes, we'll just adjourn until 20 past.
<SHORT ADJOURNMENT [10.41AM]
<RESUMED [10.53AM]
PN1168
THE SENIOR DEPUTY PRESIDENT: Before you start, Mr Philips, you're probably going to do this, but just in case you're not, I'd really appreciate being taken through what the difference is between the current policy, the policy that's been in place up till now, and the policy you want to implement.
PN1169
MR PHILIPS: Thank you, your Honour.
PN1170
THE SENIOR DEPUTY PRESIDENT: I mean, you probably are going to do that. If you weren't, can you please do it.
PN1171
MR PHILIPS: There's not many, your Honour, so I'll just have a - - -
PN1172
THE SENIOR DEPUTY PRESIDENT: The differences.
PN1173
MR PHILIPS: - - - summary. There's not many.
PN1174
THE SENIOR DEPUTY PRESIDENT: Yes. See, I suppose what I'm curious about in a way is to what extent - I mean, I think the remedy you're seeking is to say you're entitled - - -
PN1175
MR PHILIPS: Yes.
PN1176
THE SENIOR DEPUTY PRESIDENT: - - - to implement the proposed policy, but also obviously there's an issue about things that may have happened outside the existing policy, and I'm not sure how much this is about, you know, the changes in policy as opposed to actually applying the policy.
PN1177
MR PHILIPS: I understand, your Honour, and I mean, I think how I intend to deal with that, your Honour, is really this way: we'll be saying on the basis of the evidence and the decided authorities, your Honour is not in a position to imply any term.
PN1178
THE SENIOR DEPUTY PRESIDENT: No.
PN1179
MR PHILIPS: So it won't really get to that, and so to the extent that we now seek to amend the policy, there would be no inhibitor in terms of an implied term over here.
PN1180
THE SENIOR DEPUTY PRESIDENT: Sure.
PN1181
MR PHILIPS: So that's - - -
PN1182
THE SENIOR DEPUTY PRESIDENT: I understand that but I just want to understand the implications of, you know, what's really - I understand the legal - - -
PN1183
MR PHILIPS: Yes.
PN1184
THE SENIOR DEPUTY PRESIDENT: Both of you agree that that was basically - the legal issue was other implied terms - - -
PN1185
MR PHILIPS: Yes.
PN1186
THE SENIOR DEPUTY PRESIDENT: - - - in anyone's contract of employment essentially.
PN1187
MR PHILIPS: Yes.
PN1188
THE SENIOR DEPUTY PRESIDENT: But leaving that, if you like, to one side for a minute, just actually what the practical effect of what it is you're actually seeking to do and how much that's about change of policy and how much it's actually about - change of policy in a big P sense of policy - - -
PN1189
MR PHILIPS: Yes.
PN1190
THE SENIOR DEPUTY PRESIDENT: - - - as opposed to actually enforcing the policy.
PN1191
MR PHILIPS: It's probably more - - -
PN1192
THE SENIOR DEPUTY PRESIDENT: More the latter.
PN1193
MR PHILIPS: - - - enforcement of the policy - - -
PN1194
THE SENIOR DEPUTY PRESIDENT: Exactly. That's what I was - - -
PN1195
MR PHILIPS: - - - as it exists, your Honour - - -
PN1196
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1197
MR PHILIPS: - - - because I think as you've heard from - excuse me. Yes, it's probably more about enforcement of the policy, whether in its first iteration in GTT0019, version 1 or version 3. It's more about the capacity to be able to implement that, because at the moment we've obviously got an inhibitor in terms of the alleged existence of, as it were, implied contractual rights which, you know, is sort of a roadblock to us from, say, implementing or having that policy, you know, utilised, say, in its full versions.
PN1198
THE SENIOR DEPUTY PRESIDENT: I mean, leaving aside whether anything that's happened has led to any, you know, conditions in people's contracts of employment, you're not - I mean, you agree that - I think you've already said this, but the policy as it has been up till now hasn't really been applied properly - well, inconsistently.
PN1199
MR PHILIPS: Inconsistently, yes.
PN1200
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1201
MR PHILIPS: I think Mr McNamara said it was consistently inconsistent.
PN1202
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1203
MR PHILIPS: Such a colourful phrase.
PN1204
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1205
MR PHILIPS: Although, your Honour, with respect to that, you know, what I would be putting is that in fact what the evidence shows is that there may be some individual understandings around the place but not for the purposes of, say, the BP Refinery case. No notorious or general custom in either Endeavour or the industry that's been pointed to or is in evidence such as to give rise to such a - and in fact in many respects, if the policy is consistently applied, that suits us because it's on the basis of the policy, but if there's an inconsistent application of that, in the absence of evidence of what the actual notorious custom and practice is, we would say the implication argument fails at that hurdle.
PN1206
THE SENIOR DEPUTY PRESIDENT: Okay. Thanks.
PN1207
MR PHILIPS: I'm grateful for your Honour's comments about remedies on Monday because the situation is different as it existed under section 170LW. I'll come to that issue because there are differences from what the situation was in the past. Perhaps in one small respect an interesting result might arise in this, but I've got some thoughts on that, your Honour, which I'll come to in due course. Your Honour, the union in its opening said that a term should be inferred on the following basis, and that is basically that the arrangement which existed when the agreement was struck and that when a person was required to start and finish on the job - has a right to a take-home vehicle whilst they remain in that position.
PN1208
The union has asserted that a number of situations have arisen where that entitlement to a take-home vehicle arose not out of the application or the policy but rather an agreement which is, say, external to any of the industrial or policies, so an individual - and you've heard evidence from various individual as to what their understandings were. Look, your Honour would be well aware of - and, you know, it's fairly well-settled law now arising from the BP Refinery case regarding the circumstances when a term must be implied. In broad terms, your Honour, that is that the implication must be reasonable and equitable. It must be necessary to give business efficacy to the contract because no term will be implied if the contract is effective without it. It must be so obvious that it goes without saying, or I think in other cases, you know, the phrase is "it must be notorious". It must be capable of clear expression and can't contradict any express term of the contract.
PN1209
My friend in his submissions refers to the comments of Deane J in the Hospital Products case regarding the need to avoid a rigid approach, and in that case his Honour said what it is necessary to arrive at is a conclusion as to the actual intention of the parties before considering any presumed or implied intention, so at the time we have engagement, what were the objective actual intentions of the parties. Your Honour, we say this: there are a number of issues pointing to the actual intentions of the parties. One of them exists obviously in the policies, and your Honour, I asked questions of each of the workers who were called regarding the circumstances under which they could lose entitlement to a motor vehicle.
PN1210
There's a number of things about that. Firstly, that is consistent with the policy as it existed. Secondly, I suppose one could ask it rhetorically, your Honour, but if one has a right as a matter of contract, whether by express term or by implication, the notion that some conduct on your part would then serve in the nature of a penalty for you to lose that entitlement, in my view, speaks against the implication of a term. You've either got the right to the particular entitlement, be it a motor vehicle or overtime or whatever the matter pertaining to your employment is - you either have that right or you don't.
PN1211
The fact that it can be removed in certain circumstances, your Honour, we say goes to the point that no such term should be implied, and your Honour, they were all quite open. Everybody knew that, "Yes, if the wife drives the truck to Bunnings, you know, I can lose the truck, or if my son or" - you know, any of the reasons that I put to them - you know, the right to the take-home - and the thing with that is, your Honour, it sits consistently with the policy but it shows that it is very much a conditional approval, and there are other conditions, your Honour, and I asked those workers the same questions as well, such as you need it to start and finish on the job or if you're subject to call-outs, so there is a reason why they need to have access to them.
PN1212
In fact one of them - I'll take you to the precise evidence - agreed with me when I said, "Look, if you're no longer subject to call-out, for example - forget whether you start or finish on the job - you don't need access to the vehicle, do you?" and of course he answered yes, and then we got to the next question, "If you didn't have to start and finish on the job, you wouldn't require the vehicle either, would you?" and he answered yes to that question. I would say this though, your Honour, about - you'll see in our submissions we raise the issue of clause 11.1, which is the one-line phrase which says that employees are responsible to get themselves to and from work.
PN1213
I don't say that that's determinative, your Honour, of this matter, not at all, but what I say is that when one is looking at the presumed intentions of the parties, as Deane J says in Hospital Products, that's a factor that your Honour would weigh in the balance as one of the discretionary factors in term of militating against the implication of the term. So, you know, we would say there's that clear statement in the industrial agreement. Mr Greenhill gave evidence that a similar statement had existed in previous state industrial agreements. Your Honour, we would say that you must consider that in the exercise of your discretion regarding what the presumed intention is, but I don't put it as highly as being an express contractual term because obviously we can reach agreements over and above what the award might provide, but in this circumstance this goes to the right, as it were, to take the vehicle home, so it goes precisely to that point about getting themselves between home and work.
PN1214
Your Honour, I just want to say some things about custom and practice. Your Honour, our proposition is that the custom and practice must be so notorious or obvious that it goes without saying, in accordance with what was said in BP. The evidence is actually completely contrary to this proposition. Firstly there's a complete absence, in our submission, of any evidence of any custom or any practice. What your Honour has received is a number of views from individuals about their personal arrangements. In fact your Honour may recall I asked each man, "Now, sir, you're only speaking about your own, you know, personal position," and none of them purported to speak more widely than that, and indeed their statements read in that vein. You know, quite clearly they thought they had certain rights pertaining to themselves but they didn't go out and go much more widely than that.
PN1215
Secondly, if your Honour reviews the evidence of Mr McNamara, the ASU organiser, he could not give evidence of a general practice. His statement or knowledge arose out of his views of the two workplace arrangements, which I'll have a lot to say about later, but he could not give evidence about any particular practice either in the industrial or at Endeavour. Your Honour, I'll just go to the part of his evidence where he said that from my notes. These are the notes, your Honour, and may not exactly coincide with what the transcript says, but my notes were:
PN1216
You have not identified an identifiable practice for an entitlement to a motor vehicle, have you?---There is no formal process that I know of.
PN1217
So, your Honour, we say there is no evidence of a notorious or general practice in this industry or out at Endeavour. Indeed, your Honour, I just wish to go to Mr Collimer's evidence because that I think is a very good exemplar of some of the difficulties with, say, the union's case in this matter. Mr Collimer agreed, as did one or two of the other witnesses, that if they were no longer required to start or finish on the job or be on the on-call roster, the need or necessity to have the motor vehicle just would not exist. Indeed he was asked a question in re-examination regarding if he'd changed his role. The exchange went thus:
PN1218
If you hadn't taken the new role, what vehicle would you have had?---I don't know, probably my own.
PN1219
Would you still have a take-home vehicle?---No, I don't think so.
PN1220
I think there's a few issues arising from that, your Honour. Firstly, that supports our proposition that when take-home vehicles are allocated, they're allocated to a position and not to the person. That militates against the formation of any contractual relations between Endeavour and an individual regarding the provision of that motor vehicle. At best it's a mere licence or authorisation to use the vehicle on a take-home basis while you're in that position and then that there is a business case in terms of starting and finishing on the job or a call-out or stand-by roster. Indeed the document produced by Mr Collimer in the witness box, which is exhibit E6, firstly is headed, "Business case for authorisation for take-home vehicle."
PN1221
So this is something which has been submitted on behalf of Mr Collimer. I don't suggest that he wrong it. It's submitted on his behalf in 2003, and just to read the document, your Honour - and I'll take you to some various salient points of it - we would say would serve to discharge any capacity for the term to be implied because it is contrary to the spirit and content of this document, which certainly is not to enter into any binding contractual relations with Mr Collimer. I mean, this document says firstly under Purpose, "The purpose of this paper is to authorise Sean Collimer to continue to be permitted to a take-home vehicle." It then describes the vehicle as the elevated work platform.
PN1222
There's a reference to - and I think this reference is incorrect, your Honour. It refers to the IEC Enterprise Agreement 1999 - I think that is probably more like the workplace arrangement because I can't find an enterprise agreement from 1999 - and it refers to the corporate procedure GTT0016 which I tendered this morning. The next subheading says, "Justification - basis of justification":
PN1223
PN1224
So this approval here is not an approval at large. It's an approval "when required to carry out the following". There are four dot points which list the circumstances when that approval or authorisation is valid. So as at 2003 - and I think Mr Ferguson gave evidence about his practice this morning - these types of reviews of the continued justification or business case were done. He couldn't recall whether it was annually or biannually but it was his practice that, you know, they would review whether or not someone who was enjoying take-home rights could continue to enjoy those take-home rights in light of what they were doing, and patently from this document, the processes which were brought to bear in that circumstance arose out of a policy.
PN1225
Your Honour, when I come to the policy, the general submission we'll be putting to your Honour about the policy is that in no way could one, on a reading of the policy and an application of its terms, infer that there is firstly any intention on the part of the parties that that policy constitutes anything other than a policy which can be changed, and I think my friend acknowledges in his submissions that we are entitled to change our policies, and certainly on the basis of the policy, there's no intention that that policy would bestow any contractual rights, and if one can go through the policies, as I will do, you will see that, you know, it's conditional, the circumstances under which you would have access to a motor vehicle to take home, the necessity for a business case justification. There are terms there which I'll refer your Honour to, none of which would support the implication of a term on that basis.
PN1226
Further with Mr Collimer's evidence, before that document, E6, from 2003, he gave evidence about his earlier work on an Optus contract and how in the course of that Optus contract he had to work at various sites all around the place which necessitated for him start and finish on the job, and that was the reason in his mind why he had take-home rights at that stage. If you follow what Mr Collimer said, at each stage there was a business imperative why he was granted those take-home rights, whether he was doing the Optus job or when he moved on to his next task. So, your Honour, we say there that in that circumstance what has happened there is just an application of what was the existing policy. Is there a business case? Is there a start and finish on the job? Is there a necessity for call-out? So it is all consistent with what was sitting in the then Integral Energy policies at that time.
PN1227
Your Honour, we would submit that the proper construction that should be placed upon the evidence given by the workers is that in certain discussions with Endeavour management - access, approval, allocation, authority - this is the language which is used in the documentation - to a loader vehicle - and the provision of take-home rights in certain circumstances was stated as a matter of fact rather than a statement evincing an intention that Endeavour was granting to that person a guarantee or an incorporation of that motor vehicle as a part of the terms and conditions of their employment.
PN1228
The language, your Honour, is couched in those conditional terms, which we say does not bespeak any intention, either on our part or on the part of the person receiving it, that they would consider that they had that right. I mean, even Mr - and, look, I think it was Mr Turner. I could be wrong, but Mr Turner was saying that, you know, even if he was on holidays and he had the vehicle parked at home, it was available for use by the other members of the crew who lived nearby because he lived in a particularly central area for the crew, I think Greystanes or somewhere like that.
PN1229
So again, if other people in the crew have access to it when, you know, the individual is not at work or on leave, again, your Honour, that does not bespeak the granting to that individual of a right in the nature of a contractual right to that vehicle. The fact that other people can use it, your Honour, is actually consistent with the business use and the business case requirement.
PN1230
THE SENIOR DEPUTY PRESIDENT: And the policy.
PN1231
MR PHILIPS: And the policy, yes. Certainly with Mr Turner, your Honour, you know, one can ask rhetorically if the motor vehicle was part of the contract, why would you return it to the depot for a period of, I think he said six weeks during some industrial disputation which took place either last year or the year before. It doesn't make sense. What I might move to now, your Honour, is the workplace arrangements. Mr McNamara from the ASU has given evidence about his views about the workplace arrangements. As I think I said to Mr McNamara, look, he's entitled to his views but ultimately it's going to be a matter for your Honour to view those two arrangements, and there's only the two, the 2005 and 1999 arrangement.
PN1232
Now, if your Honour views those arrangements, firstly they do not evince any intention on anyone's part firstly to create contractual relations or to bestow any contractual right in relation to the motor vehicles. In fact the 2005 arrangement, and I think that's tab R5 in the union bundle, I think Mr McNamara agreed with me that the provisions in the 2005 arrangement were administrative in nature so I asked him a question, for example - I asked a number of questions. First I said, and this is a question about Integral Energy's intent in that arrangement. I said, "It states it is not Integral Energy's intent that people would be worse off as a result of changes in policy, but it doesn't amount to a promise that it won't happen." Mr McNamara says, "I agree in part."
PN1233
I said, "Well, it doesn't amount to a guarantee, does it?" He says, "Obviously not." I said, "Do you agree that clause 6, and this is in the 2005 arrangement, is essentially administrative in nature?" He says, "Whilst the clause may be administrative in flavour, clause 6.1.2 refers to Integral Energy vehicles." Now, the clause that is being referred to there, your Honour, talks about choices within the total remuneration package. Now, your Honour, that in terms of being a contractual promise doesn't get to the starting line, in my submission, because all that is being offered to an employee there is a number of choices as to how they might package their salary having regard to the various entitlements within that subparagraph.
PN1234
I think most tellingly in the arrangement is when one gets to clause 6.10 it talks about the vehicles being allocated to positions, not to employees. It picks up the motor vehicle procedure GTT0019 and at 6.10.3 it says, "Integral Energy policies and procedures relating to motor vehicles will apply." So at least insofar as the union's claim in this matter refers to anybody subject to the 2005 arrangement, we say, your Honour, that in fact the terms of the arrangement itself and on its face would discount the chance of any implication of the term arising from the application of that document.
PN1235
If anything, the position of the 1999 arrangement is stronger because it simply refers to in paragraph 15 about the allocation of the vehicle again that word "allocation", being based - the allocation of the vehicle firstly to a position, so not to the individual but to a position, and secondly based on a business need, approval of the general manager as per the Integral Energy motor vehicle policy and procedure. So to the extent anything flows from that, your Honour, is (a) it discounts, again as with the 2005 arrangement, any intention to create contractual rights. In fact what it says is that any vehicle being so provided is done so in accordance with the policies and procedures and it applies to a position. So neither of those documents would justify the implication of any term on their face.
PN1236
Your Honour, there's one further point about the workplace arrangement which I'll come back to under the heading of Remedies because - there is a submission I want to put, actually. If my friend is asserting that the workplace arrangements could, say, be implied into the contract, we've really got two solutions. (1) I've just made about on their face they wouldn't be implied, but secondly on my reading of your Honour's discretions here, there is an argument that actually the implication of those agreements would be forbidden under section 740 subsection (4) of the Act, and I'll develop that when I get to the remedy section, your Honour. Now, your Honour, I just wish to return briefly to the issue of commercial custom and practice.
PN1237
Now, if one considers the evidence of Mr Morrison, if you go to paragraphs 25, 26 and 27 of his statement, he said that, "Not all employees carrying out the same role are allocated to take-home motor vehicles." So that was his unchallenged evidence, and secondly none of the union witnesses supported the existence of such a wide spread custom. Well, we say the inference arising from Mr Morrison's evidence in those paragraphs is actually there's no practice. People doing the same job in the same position either may or may not enjoy the allocation of the motor vehicle. Your Honour, I just wish to briefly now go to the various policies that your Honour has in evidence.
PN1238
I think probably the best position to go to would be the latest procedure which is an annexure to Mr Morrison's affidavit with that statement. I think it's DRM2. Now, your Honour, the differences between amendment 3, which is DRM2, and the earlier version which is amendment 1 is as follows: firstly there is - - -
PN1239
THE SENIOR DEPUTY PRESIDENT: Hang on, I'll just make sure I've got the rates.
PN1240
MR PHILIPS: Sorry.
PN1241
THE SENIOR DEPUTY PRESIDENT: I do have it. Yes, I've got it.
PN1242
MR PHILIPS: Your Honour, the difference with that company procedure from the one which preceded it was that firstly at page 25 of the version 3, you'll see in the second dot point there is a reduction in version 3 in the requirement for take-home use with the vehicle from 60 per cent to 40 per cent of the days. So in the previous version the requirement had been 60 per cent and in this version, and this is the version which is proposed to be implemented, that had been reduced to 40 per cent. On the preceding page, your Honour, page 24 there is the introduction of a test for business benefit for all vehicles that go home and travel more than 30 kilometres, and that 30 kilometre limit is between the home and the depot where the particular individual is based. Your Honour - - -
PN1243
THE SENIOR DEPUTY PRESIDENT: I'm sorry, can you just explain the - how the 30 kilometre sort of thing works? I mean, that's new, isn't it? There was no reference to 30 kilometres before.
PN1244
MR PHILIPS: Yes.
PN1245
THE SENIOR DEPUTY PRESIDENT: So is this saying if it's less than 30 kilometres you don't need this approval, or - - -
PN1246
MR PHILIPS: I'm sorry, your Honour. I'll just get some instructions.
PN1247
THE SENIOR DEPUTY PRESIDENT: So does it mean that if it's less than 30 kilometres you don't need approval or you'll never get approval if it's less than 30 kilometres? I'm sorry, I haven't got my head around it.
PN1248
MR PHILIPS: The 30 kilometre limit is a - is a number which has been chosen for this reason: that to go further than that, the business case for that needs to be looked at most carefully because of - the point of allowing the business use is all right for start and finish on the job, or call back. If you live more than 30 kilometres from the depot, it needs to be looked at as to whether or not the business case actually exists to give someone who lives, you know, 50, 60, 80 kilometres away, well, how - what is the business benefit if they're called out.
PN1249
THE SENIOR DEPUTY PRESIDENT: But if it's - but for people with less than 30 - who are less than 30 kilometres from the base depot, what's the rule?
PN1250
MR PHILIPS: It's still tested in terms of call-out start and finish on the job, stand-by, so there still has to be those other requirements in accordance with the roster, I'm satisfied, but - - -
PN1251
THE SENIOR DEPUTY PRESIDENT: Where does it say that? I'm sorry, I'm just - - -
PN1252
MR PHILIPS: Well, your Honour, the way the policy works will be that there is really the threshold question regarding take-home use and that's the business case that supports it, and the business case that usually will support it is - - -
PN1253
THE SENIOR DEPUTY PRESIDENT: But where does it say that? Because I'm looking at, you know, page - sorry I'm being difficult, but I need to make sure I understand this. Page - so I'm looking at 5.9.4, assigning take-home vehicles. So - - -
PN1254
MR PHILIPS: Sorry, your Honour, what was the page your Honour's on?
PN1255
THE SENIOR DEPUTY PRESIDENT: So we're on page 24 of the document. So assigning take-home vehicles. So this is the key, if you like, provision. Who gets one, if you like. So it says:
PN1256
Company funded passenger and light commercial vehicles will not be used as take-home vehicles if they are taken home to a location more than 30 kilometres from their base depot unless there is a business case proved by the chief financial officer.
PN1257
Then:
PN1258
A business case for the temporary allocation of take-home use vehicle taken home to a location more than 30 kilometres from the base depot may be approved for a specific position when there's a business benefit including the following.
PN1259
Then there's three dot points. What about people where they're less than 30 kilometres?
PN1260
MR PHILIPS: Your Honour, if you go to the three dot points on the top of page 25, the issue is this: that applies to whether it's above or below 30 kilometres.
PN1261
THE SENIOR DEPUTY PRESIDENT: Where does it say that?
PN1262
MR PHILIPS: I suppose - the thing is this, your Honour, is on the previous page about over 30 kilometres, the business case has to be approved by the CFO. I mean, it's obviously - - -
PN1263
THE SENIOR DEPUTY PRESIDENT: Yes. I mean, I think that's probably what it meant - I don't think that's actually - because it then goes on to say, "You can get this - you can get the approval if it's more than 30 k if you meet these criteria," and there they are. It doesn't actually say anything about people under 30 - I mean is the only difference meant to be that one has to have approval from the chief financial officer and the others don't? I mean, it doesn't actually say. I mean, it's just that if I'm giving - if I'm being asked to give a green light to this policy, I have to understand what the policy is.
PN1264
MR PHILIPS: Well, your Honour, if you're over 30 K's it requires the CFO to approve the business case.
PN1265
THE SENIOR DEPUTY PRESIDENT: Yes. That's the only difference?
PN1266
MR PHILIPS: That's the difference. But you know, let me be under no - - -
PN1267
THE SENIOR DEPUTY PRESIDENT: Yes, it doesn't actually say that.
PN1268
MR PHILIPS: - - - misapprehension about it your Honour. I mean, the business case applied over 30 kilometres will actually be much more stringent.
PN1269
THE SENIOR DEPUTY PRESIDENT: Sure. I understand that, because the cost is greater, obviously, potentially.
PN1270
MR PHILIPS: Yes, and also there would be operational issues, your Honour, because if you're within the area of the depot, that's where you're more like to have call-outs or stand-by, whatever. If you're 100 kilometres away it makes it - you know, the purpose of being on stand-by is rendered somewhat of less utility because of the time it would take you to get from wherever you are to where you're going.
PN1271
THE SENIOR DEPUTY PRESIDENT: But it's the same general - these three dot points on the top of page 25 apply to more and less than 30 K's, it's just they'll be applied - it will be a tougher call.
PN1272
MR PHILIPS: Yes.
PN1273
THE SENIOR DEPUTY PRESIDENT: I have to tell you, I don't think it actually says that.
PN1274
MR PHILIPS: No.
PN1275
THE SENIOR DEPUTY PRESIDENT: It might be what it's meant to say. I might be wrong, but I - - -
PN1276
MR PHILIPS: Yes, your Honour. There's a further matter, the change from the previous situation which is found on page 14, and this is - at the bottom of page 14, "Issue resolution."
PN1277
THE SENIOR DEPUTY PRESIDENT: Right.
PN1278
MR PHILIPS: It talks about the group general manager resolving issues relating to drivers with respect to vehicles provided. So that's really just an administrative or mechanical - - -
PN1279
THE SENIOR DEPUTY PRESIDENT: So leaving aside the people who have to go the chief financial officer, who actually has to sign off on a car being allocated?
PN1280
MR PHILIPS: A group general manager, except when its over 30 K's. The CFO has to - - -
PN1281
THE SENIOR DEPUTY PRESIDENT: So any of the group's general managers.
PN1282
MR PHILIPS: Yes.
PN1283
THE SENIOR DEPUTY PRESIDENT: Then if there's an argument about it - I see. So the fleet manager - so the business case goes from local management to the fleet manager and then it goes to the CEO or the group general manager of corporate services. This is in relation to - - -
PN1284
MR PHILIPS: That's the resolution of disputes about - your Honour, there are a number of general manager levels. That's what I'm saying. This is the mechanics. It's the corporate services GM who will resolve the dispute.
PN1285
THE SENIOR DEPUTY PRESIDENT: Yes. So but this is - okay. So normally if there is no dispute it just goes to who? The group general manager?
PN1286
MR PHILIPS: It goes to the group general manager or the CFO depending upon which side of the 30 K's you sit.
PN1287
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1288
MR PHILIPS: A document will come up from the operating manager which says, "The business case is as follows", and, your Honour, much the same as that document exhibit E6 which your Honour has seen. It's a document which is not actually generated by the person who approves it. It's a document submitted to them for approval by - - -
PN1289
THE SENIOR DEPUTY PRESIDENT: Yes. No, I understand that but I'm still - where does it say who - if there's no dispute, if you like, where does it say who approves it? Or is in fact this is where you approve it?
PN1290
MR PHILIPS: Your Honour, at the commencement of the bottom of page 25 there is a heading entitled Authorities and Responsibilities.
PN1291
THE SENIOR DEPUTY PRESIDENT: Okay.
PN1292
MR PHILIPS: Firstly the CEO has the authority for approving and responsibility to approve the procedure.
PN1293
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1294
MR PHILIPS: The group general managers have the authority and responsibility for reviewing the business use and take-home fleet allocated to their business areas and approving the operation of business use vehicles outside the franchise area. Then on the top of the next page - - -
PN1295
THE SENIOR DEPUTY PRESIDENT: Okay. Approving the allocation - - -
PN1296
MR PHILIPS: "Approving the allocation of take-home status to a vehicle."
PN1297
THE SENIOR DEPUTY PRESIDENT: Right. Okay. So it's normally the group general manager for - I don't know. Who would the group general manager be normally for whatever area?
PN1298
MR PHILIPS: There's various group general managers.
PN1299
THE SENIOR DEPUTY PRESIDENT: Yes, and then group general manager corporate services - well, the CFO deals with the ones where it's a longer distance away - - -
PN1300
MR PHILIPS: Yes.
PN1301
THE SENIOR DEPUTY PRESIDENT: - - - and the group general manager corporate services is involved if there's a dispute.
PN1302
MR PHILIPS: Yes, your Honour.
PN1303
THE SENIOR DEPUTY PRESIDENT: Okay. I think it's probably clear. Okay, thanks. So are there any other differences?
PN1304
MR PHILIPS: No, your Honour.
PN1305
THE SENIOR DEPUTY PRESIDENT: Those - okay.
PN1306
MR PHILIPS: Your Honour, I just want to turn to the point regarding consultation and I must say I'm a little bemused about the issue about consultation and may actually have to say a bit more in reply. The union submissions allege there has been a lack of consultation by the applicant in pursuing the implementation of this new motor vehicle policy. Your Honour, the evidence in our submission is contrary to that proposition. I think you've heard from Mr Greenhill, Mr McNamara and Mr Currey. The effect of that evidence is that there has been extensive consultation which has taken place since 2009.
PN1307
There were processes of consultation which took place between the parties, firstly before the lodging of any dispute in the New South Wales Industrial Relations Commission and then in the context of that dispute. We don't need to get into what occurred in conciliation in that matter, but up until the time that dispute was withdrawn from the state commission late last year, the issues in this matter had been well canvassed both outside of the commission and then there.
PN1308
When the new enterprise agreement, the federal enterprise agreement, was approved earlier this year the same matter was re-agitated. Now, I asked Mr Currey and Mr McNamara the ambit of this dispute in terms of the three stages, of course the first one of which had been resolved in the state commission and what's left is what's been brought to your Honour, whether that has been in issue since the start of this dispute, and the answers were yes. So there is no new issue in terms of the take-home motor vehicle dispute which first commenced on the evidence some time late in 2009 to the issues which are in dispute before your Honour now.
PN1309
Earlier this year Mr Greenhill gave notice of the applicant's intention to implement version 3 and received the same response from the union parties which had been in the position for a long period of time in the state commission that they were opposed to implementation of version 3 of the policy. So, your Honour, it's hard to see in terms of the consultation and the procedures which have gone by that there could be any suggestion of a want of consultation and I think, your Honour, where I'm apprehending it might go is whether or not there is an allegation that clause 28 of the 2010 enterprise agreement has been breached because I would say the evidence is not supportive of that. This is not a case where there has been no consultation or notice to the union parties.
PN1310
THE SENIOR DEPUTY PRESIDENT: Can I just - sorry to - see there's - in terms of what the - where the ambit of the dispute as it were is, that I mean we've just gone to the policy and how it differs from the sort of existing policy if you like and it actually doesn't differ very much.
PN1311
MR PHILIPS: No.
PN1312
THE SENIOR DEPUTY PRESIDENT: But presumably what's happened is that there have been a whole load of letters have gone out to people saying - people who currently have a take-home vehicle and they've been told they're not going to have one any more. I think that's right, isn't it?
PN1313
MR PHILIPS: Yes. Well, your Honour, there's been a review. Letters have gone out - - -
PN1314
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1315
MR PHILIPS: - - - and that's where the grievances have come back to say - - -
PN1316
THE SENIOR DEPUTY PRESIDENT: And the grievances have come back and say, "Well, no" - - -
PN1317
MR PHILIPS: I think the business criteria - - -
PN1318
THE SENIOR DEPUTY PRESIDENT: - - - "I am entitled to it and you can't take it away from me" - - -
PN1319
MR PHILIPS: Yes.
PN1320
THE SENIOR DEPUTY PRESIDENT: - - - and there are all sorts of arguments about that - - -
PN1321
MR PHILIPS: Yes.
PN1322
THE SENIOR DEPUTY PRESIDENT: - - - and there's a whole load. There's - can't remember what the number - - -
PN1323
MR PHILIPS: Yes, lots.
PN1324
THE SENIOR DEPUTY PRESIDENT: - - - is but lots.
PN1325
MR PHILIPS: Yes.
PN1326
THE SENIOR DEPUTY PRESIDENT: In a sense that's what the dispute is. It's not really about the change in policy, or maybe partly it is, but it's more about the application of the policy.
PN1327
MR PHILIPS: Yes, and I think, your Honour, it's probably about, you know, the consistent application of the policy for the first time in a long time.
PN1328
THE SENIOR DEPUTY PRESIDENT: Yes. I mean of course it may be the case that - I mean, you know, I suppose I'm jumping ahead a bit. This partly goes to remedy, but if one were to say - if I was to say, "Well, yes, you're entitled to implement the policy," there's still going to be the question of how it might apply to individuals and I appreciate you've got kind of a dispute resolution process that is the management level within the policy itself, but obviously there's going to be room for argument at an individual level and we haven't dealt with every individual. I'm not necessarily saying we should have to.
PN1329
MR PHILIPS: Not inviting.
PN1330
THE SENIOR DEPUTY PRESIDENT: I'm not inviting every single person who has lodged a grievance to - exactly. I mean I'm not actually encouraging it but what I'm saying is that one couldn't rule out that even if one were to accede to your written - the application before me, that there won't still be disputes about individuals because, you know, for example if the policy is not being properly applied - - -
PN1331
MR PHILIPS: Yes.
PN1332
THE SENIOR DEPUTY PRESIDENT: - - - for example.
PN1333
MR PHILIPS: No. Your Honour - - -
PN1334
THE SENIOR DEPUTY PRESIDENT: So I'm just thinking this through because I mean I suppose what struck me is how little difference there is in the policy quite frankly.
PN1335
MR PHILIPS: Your Honour is quite right because obviously there can be disputes and that provision that I've just gone to in the policy where the dispute gets handled by the group general manager corporate services there's - - -
PN1336
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1337
MR PHILIPS: With the best will in the world, whatever your Honour decides there could be disputes about this in the future unrelated to what - - -
PN1338
THE SENIOR DEPUTY PRESIDENT: Yes. I'm not inviting them but you know.
PN1339
MR PHILIPS: Yes, your Honour.
PN1340
THE SENIOR DEPUTY PRESIDENT: I can't see how they could be ruled out.
PN1341
MR PHILIPS: But what I would be urging upon your Honour is in terms of the decision that is reached in the resolution of this dispute, it will actually give - - -
PN1342
THE SENIOR DEPUTY PRESIDENT: Yes (indistinct)
PN1343
MR PHILIPS: - - - at least a framework or a line in the sand for, you know, whether or not outside of the policy any such issue has arisen. Obviously disputes about the application of the policy - - -
PN1344
THE SENIOR DEPUTY PRESIDENT: But I mean you've conceded, I mean even before we really started, that in one person's case he did actually have a legitimate contractual - even on your own - - -
PN1345
MR PHILIPS: Yes.
PN1346
THE SENIOR DEPUTY PRESIDENT: - - - thing he had a legitimate contractual right.
PN1347
MR PHILIPS: Yes. So that - - -
PN1348
THE SENIOR DEPUTY PRESIDENT: So there could be others.
PN1349
MR PHILIPS: Yes. So that fellow, Mr - - -
PN1350
THE SENIOR DEPUTY PRESIDENT: Even on your - - -
PN1351
MR PHILIPS: I think his name was Sullivan. Your Honour, we saw that document - - -
PN1352
THE SENIOR DEPUTY PRESIDENT: Yes. So what actually - we didn't get any evidence and obviously it's too late to put in evidence about this, but what actually was it that he had, that made you take - - -
PN1353
MR PHILIPS: Your Honour, my memory of it, and I think I saw it last about a month ago, was he had a letter - - -
PN1354
THE SENIOR DEPUTY PRESIDENT: Of appointment.
PN1355
MR PHILIPS: - - - which said, you know, "You'll be provided," or some such thing. I mean it was certainly - if your Honour had it before you - - -
PN1356
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1357
MR PHILIPS: - - - you would be satisfied that - - -
PN1358
THE SENIOR DEPUTY PRESIDENT: Yes. So it was like a letter of appointment, was it? A letter of appointment.
PN1359
MR PHILIPS: Yes, a letter of appointment or promotion, some such thing like that but, you know, if your Honour had seen it you would be looking at me saying, "Mr Philips, how can you be" - - -
PN1360
THE SENIOR DEPUTY PRESIDENT: Yes. It's a contract, yes.
PN1361
MR PHILIPS: - - - "you know, arguing against that?"
PN1362
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1363
MR PHILIPS: So it's in his contract. It is without doubt for that fellow a contractual entitlement - - -
PN1364
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1365
MR PHILIPS: - - - and, your Honour, if anyone else comes up with a document like Mr Sullivans well, you know, we will deal with it on that basis, but if we put those ones where someone has a rock-solid contractual entitlement to one side, the rest, for the reasons I said before, we don't say that get there. But, your Honour, just returning to this consultation issue, I mean I suppose the issue is - and I don't understand my friend's position to be this and I just raise it at least to give him the opportunity to address your Honour on it but, you know, if it's the union's position that the jurisdiction of this tribunal hasn't been properly engaged, for example want of compliance with clause 28 of the EBA, why not say the point at which that issue should have been taken has well since passed but in any event we say as a result of the evidence which has fallen from particularly the three witnesses, the two union and Mr Greenhill, your Honour would be satisfied that that hasn't taken place.
PN1366
I mean as your Honour quite rightly points out, if there are individual disputes about the application of this policy, if we are granted permission to go ahead and enforce it, well there are - at least there's the process within the policy itself for the group general manager corporate services and there's the dispute resolution provisions within the EBA itself where disputes could be worked out at a local level. But in terms of this dispute, if your Honour finds for example there's no such implied term, it just means that we will end up with maybe disputes about how the policy is applied which, you know, can be - with the best will in the world, whatever is decided here we can't - your Honour won't be deciding whether or not in five months' time if we make a decision under the policy whether or not someone is going to cut up rough about that or not. So I'm not asking your Honour to actually decide those types of matters - - -
PN1367
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1368
MR PHILIPS: - - - for the future. The roadblock here, and I think this is what we agreed at the start of this, is as to whether or not on the basis of all of these facts there's an implied term giving someone a contractual right to hold the vehicle, which of course would be a roadblock in terms of any action on our part to try and deal with that person's, say, usage of the motor vehicle at all without their consent. I just raise that because I must say I'm a little flummoxed about what the complaint about consultation - where it goes to and the effects it ought have upon these proceedings.
PN1369
But I think our two propositions about consultation is, your Honour, there has been plenty of consultation I think and that's as evidenced by, you know, everybody who has had a grievance about this. You will see in Mr Greenhill's affidavit I think and in some of the attachments to Mr Currey's affidavit there's quite a lot of grievances which people had the opportunity to put in and have their view of it heard. In fact Mr McNamara agreed that some of the propositions which the unions put were adopted in the revised policy. So there's been consultation yes, but there's been no agreement.
PN1370
Now, your Honour, there's plenty of decisions in I think particularly the former tribunal, the commission, where it's been held that a right to consult doesn't come with the concomitant right to agree. So the fact there's no agreement really is immaterial. So, your Honour, that's what I say about the consultation issue and I apologise to my friend if I've actually misconstrued what the union's case is on that basis, but as I said I am a bit concerned as to actually what that issue goes to in these proceedings. Perhaps after my friend has had something to say about that well I might, with your Honour's leave, get a chance just to respond to it.
PN1371
Your Honour invited both of us to address you on remedies. Now, your Honour, there's no doubt that this tribunal is empowered pursuant to the EBA to arbitrate this dispute under section 740 so no problem with that. This is a significantly wider power than previously existed under section 170LW and I think, as your Honour said the other day, in those disputes you had the enterprise agreement in front of you and all the arguments were raised out of the contents and the breaches or whatever of that enterprise agreement.
PN1372
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1373
MR PHILIPS: Your Honour is not so limited under section 595 and in particular section 595 subsection (3) which says that:
PN1374
FWA may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if FWA is expressly authorised to do so under or in accordance with another provision of this Act.
PN1375
So, your Honour, we say that really you've got the power there in section 595(3) to make such orders as you consider appropriate. Whilst it's a wide power, your Honour, there are limits, and the two limits that I'll draw your Honour's attention to are firstly in section 740 subsection (4). So subsection (4) says, "Despite subsection (3), the" - this is the person may arbitrate, but it says, "the person must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties." So, your Honour, that is one limit upon your Honour's power to deal with this matter.
PN1376
The second limit, your Honour, I suppose it's more a guidance than a limit, but that's the powers found in 
section 578 
regarding what the tribunal takes into account in exercising its powers, so things like the objects of the Act, equity, good conscience,
merits of the matter, and subsection (c) is not relevant for these purposes. I would say one thing about the operation of section 740 subsection (4) in this matter, and this takes me to the issue of the workplace arrangements. Your Honour, we say to the extent that
the union in their submissions has relied upon those two workplace arrangements to the workers who are subject to those terms, we
say firstly our case is that on a review of the workplace arrangements, as I took you through before, they don't give rise to any
implied rights. It's in fact to the contrary.
PN1377
Your Honour, we would also say this: if it is asserted by the union that the workplace arrangements, far from having industrial effect - and we just say they have industrial effect of the kind referred to by Hayne J in that Ryan case. They're only intended to have industrial effect. If it is asserted that they are in fact an agreement, we would say that clause 32 of the Endeavour Energy Enterprise Agreement which reads as follows:
PN1378
This agreement applies to the exclusion of the Electrical Power Industry Award 2010 and replaces and supersedes all other agreements between the parties including, but not limited to, the Endeavour Energy Award 2008.
PN1379
Your Honour, if my friend asserts that they have a character other than the industrial character which we say is clear from their face, that they have the character of an agreement, we would say that if that was in fact the character they had before this new EBA was made, it was in fact - they were replaced and superseded in accordance with clause 32. If that's the case, one of the limits on your Honour's wide discretion in this matter in dealing with those two arrangements is that limitation in section 740 subsection (4), but I don't think your Honour needs to actually - - -
PN1380
THE SENIOR DEPUTY PRESIDENT: I'm not sure I want to go there.
PN1381
MR PHILIPS: No, your Honour. I just take the point.
PN1382
THE SENIOR DEPUTY PRESIDENT: Yes, no.
PN1383
MR PHILIPS: It's available.
PN1384
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1385
MR PHILIPS: I don't think your Honour has to go there - - -
PN1386
THE SENIOR DEPUTY PRESIDENT: That would be interesting.
PN1387
MR PHILIPS: - - - because the arrangements don't have that character - - -
PN1388
THE SENIOR DEPUTY PRESIDENT: Right.
PN1389
MR PHILIPS: - - - on their face, and in fact in the EBAs themselves - and this gives rise to this issue too, your Honour. I mean, the EBA itself talks about the workplace arrangements neither being incorporated or part of the agreement and that they are not workplace instruments. So, for example, if somebody were to lose their entitlement to the motor vehicle, it means they can't bring an adverse action claim against us. They can certainly have a dispute in accordance with the dispute procedures, but because it's not a workplace right, you don't get to the gate for an adverse action matter. So, you know, it lends weight to that argument that really they sit fairly within what Hayne J says. Look, there's a whole lot of things which, you know, dictate what happens at work. Some of them are contractual in nature and some are industrial, and we say the arrangements fairly and squarely sit within the industrial context.
PN1390
I mean, the other issue is, your Honour, those arrangements can be subject to renegotiation. The fact that they can be renegotiated by Endeavour and the union parties - if it was a contractual right that some individuals were asserting arising from the arrangement, it would hardly fit that the employer and the union bodies could then sit down and agree to do away with that arrangement - that arrangement which would then affect what was said to be a contractual one. So really, your Honour, on whatever basis your Honour chooses, we say that the preponderance of both evidence and the authority regarding those arrangements is that they give rise to no contractual entitlement.
PN1391
Your Honour, returning to the readings, the power in section 595(3) is the exercise of a significant judicial discretion. Your Honour is familiar with House v the King. That's the leading case about how the discretion is to be exercised. So in exercising that discretion, your Honour, I would submit the following factors need to be taken into account. Firstly, your Honour, we submit that the appropriate order is that if the applicant is permitted to proceed with fleet improvement plan GTT0019 version 3, that would be without compensation being paid to any employee. The factors why you would not order any compensation in that circumstance are as follows.
PN1392
Firstly, your Honour, all of the witnesses described the business-use nature of their possession or allocation of the individual motor vehicle. They all agreed that there was no private use and in circumstances, if there was private use, they would lose that right. In fact in Mr Morrison's statement, his - - -
PN1393
THE SENIOR DEPUTY PRESIDENT: When you say "no private use", you could only use it for going to and from work.
PN1394
MR PHILIPS: Yes.
PN1395
THE SENIOR DEPUTY PRESIDENT: I mean, technically, in a sense that is private use.
PN1396
MR PHILIPS: Under the policy though it is defined not to be so that there's no - - -
PN1397
THE SENIOR DEPUTY PRESIDENT: Okay.
PN1398
MR PHILIPS: - - - problems with the individual having the position, you know, for that, but there's - - -
PN1399
THE SENIOR DEPUTY PRESIDENT: But presumably there's FBT applicable.
PN1400
MR PHILIPS: There is.
PN1401
THE SENIOR DEPUTY PRESIDENT: Yes, so I mean, from the Tax Office's point of view it's private use, maybe not in terms of the policy.
PN1402
MR PHILIPS: For tax purposes but for, say, employment - - -
PN1403
THE SENIOR DEPUTY PRESIDENT: I mean, there is a benefit to the employees. I mean, there may be something that - there might be mutual benefit, I think you put at one point, but there is a benefit to the employees. It does, for example, save them money in terms of getting to and from work.
PN1404
MR PHILIPS: (indistinct) or - - -
PN1405
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1406
MR PHILIPS: - - - drive their own car.
PN1407
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1408
MR PHILIPS: Except there is, I'm instructed, on the heavy vehicles - say, the large trucks - there is no FBT.
PN1409
THE SENIOR DEPUTY PRESIDENT: Is that right? Okay.
PN1410
MR PHILIPS: The piece of evidence I point your Honour to is - in Mr Morrison's statement at paragraph 4(b) there is a statement there that the take-home vehicles are to be used for work purposes only, so I mean - - -
PN1411
THE SENIOR DEPUTY PRESIDENT: Yes, defined as - - -
PN1412
MR PHILIPS: - - - that's consistent with - - -
PN1413
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1414
MR PHILIPS: So where that leaves us, your Honour, is that we would submit that there's no private benefit to be compensated in that
circumstance. Secondly, your Honour - and this goes to that issue in section 578(b) , equity - Mr Morrison in paragraphs 25 to 27 of his statement notes that other employees performing the same role don't have access
to a motor vehicle. So we would submit that if this tribunal were to order a one-off compensatory payment to a person who enjoys
what may be a temporary allocation of a motor vehicle - would represent, as it were, a windfall or an unjust enrichment of that person.
PN1415
It would be a payment which we would say - your Honour would have to have careful regard to section 578 subsection (b) in terms of giving one person the benefit who is a linesman who currently enjoys take-home use when sitting beside
him out at the same depot might be another linesman who does not have that take-home use, so just as a matter of industrial justice
between persons performing similar work, but in any event, your Honour, if you look at the new policy, we're not shutting this down
completely. I think I asked some of the witnesses, "Look, if you were on, for example, the stand-by roster for one week out
of four, during the week you're on the stand-by roster, you get the car or the light commercial vehicle," whatever the vehicle
is.
PN1416
In that circumstance there's no loss because the only requirement is if they're on a stand-by roster or starting and finishing on the job. In the other three weeks, what the proposal would be is that it might be allocated to other people on the stand-by roster. So in that circumstance, if there's a person who enjoys the take-home vehicle for the whole month now, they enjoy it for the whole month now because of the requirement to start and finish on the job or be on the stand-by roster. If those arrangements change and it's only one week or two weeks in the month where they satisfy that criteria, there's no loss because if they qualify under the criteria for the take-home vehicle, there would be no loss because they would still get it in accordance with the new policy.
PN1417
The new policy is not ending the capacity for us to allocate take-home vehicles forever and a day. It's simply just wishing to introduce a new version of the policy and one which will be consistently implemented. So, your Honour, on that circumstance there would be no loss that your Honour could point to because in that example, the other weeks when the person is not on stand-by, they wouldn't qualify under the policy and so don't need the car or the vehicle for that purpose.
PN1418
The other issue is this, your Honour, and I just refer to the comments your Honour said before about - you know, there is a personal benefit, but one of the issues I draw your Honour's attention to is that you may recall each and every of the union witnesses, I took them to those paragraphs at the end of their statement and, you know, I reckon pretty fairly said, "Look, you've identified, you know, there's a productivity issue for that," and I think one or two of them said, you know, "Customer satisfaction," and I asked them, "Look, is there anything else you want to - you know, is that your complaint about the new policy? Is there anything else?" and they all said no.
PN1419
So, for example, at least in relation to the witnesses called by my learned friend, none of them assert a loss. They don't assert that, "Well, gee whiz, because I live the other side of the Blue Mountains, it's going to cost me $200 in fuel." There's no evidence like that which - - -
PN1420
THE SENIOR DEPUTY PRESIDENT: Sorry, but I mean, the fact they didn't say that doesn't mean there wouldn't be a loss.
PN1421
MR PHILIPS: I understand that but - - -
PN1422
THE SENIOR DEPUTY PRESIDENT: There might not be a loss for some people.
PN1423
MR PHILIPS: That's right. There might not be a loss but the difficulty with my friend's case though, your Honour, is this: you don't know what the loss is.
PN1424
THE SENIOR DEPUTY PRESIDENT: No, because it's really how it's applied would be - yes, okay. I think it's a bit disingenuous to suggest that there won't be people who will suffer a loss.
PN1425
MR PHILIPS: But the problem is, your Honour, if you're being asked though, you know, to make an order in the nature of a compensatory order in these proceedings, you know, my friend has done you no favours in terms of the lack of evidence which is before this tribunal to enable that task to take place. I mean, if someone had said, "Look, I reckon it's going to cost me an extra $200 a week," you know, at least that's something we could run off, examine and see whether that was a fair assessment of the loss or not, but in any event, your Honour, if it is not a contractual term there's certain things that flow from that as well.
PN1426
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1427
MR PHILIPS: In any event, I think your Honour will recall at the commencement of this I read out the timetable that Endeavour proposes to implement these things and, you know, it's not in my submission - heavy vehicles, two months, light commercials over 30 K, four months, light commercials under 30 K, six months. Your Honour, there's plenty of time in that circumstance, and particularly, you know, since this dispute - you know, battle was first joined back in 2009. You know, on one view they've had the benefit of the continued use of the vehicles for that period which, if your Honour was considering compensation - as I say, I think your Honour has not been put in the position where you can because of the lack of evidence, but you would have to take that into account, that from - you know, we've been effectively stymied from introducing this for a period of almost two years and in that time they've enjoyed that continued use.
PN1428
Your Honour, unless there are any particular issues other than what I've submitted this morning and as are contained in the submissions I've filed, they would be the applicant's submissions in this matter. Your Honour, I suppose just in summary, we would say firstly that the evidence has not got to the point where your Honour would be satisfied, either individually of the workers called or collectively for the group, that there is any such implied term. There's been a complete absence of any evidence about any notorious or widespread custom and practice. Indeed the evidence is to the contrary. There's the policy which is applied or not applied, and when it's not applied, there's no evidence as to what that practice or custom is in fact. Secondly, your Honour, if it comes to the question of compensation, as I've said, your Honour has been left completely in the dark due to a lack of evidence as to if you were minded to make such an order, what that order would be.
PN1429
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN1430
MR PHILIPS: Thank you, your Honour.
PN1431
MR McKIMIN: Thank you, your Honour. In closing I'll just seek to reply initially to the comments of my friend that have been made in his closing. Firstly the respondents do point out that it's not so much the changes, it's not the changes in policy that they're seeking the tribunal to determine that the ability to make those changes to policy, rather it's the application of the policy itself to the people who have been submitted as annexures or brought as witness who the respondents identify in their submissions and continue to press having had terms of contractual right to take-home use of a vehicle which should be implied into their contract of employment. The applicant took the tribunal to the case of BP Refinery and the elements required for the implication of such a term or inferring such a term with the contract of employment.
PN1432
The applicant has made submissions on this, has put formal submissions in writing. The respondents have put formal submissions in writing as to this issue and the elements, and the applicant then addressed the evidence it sought from the witnesses of the respondent of the circumstances in which they could loose entitlements where these conditions under the relevant motor vehicle policy, DRM2, be imposed on them, and the employees did advise that they were aware of those policy conditions. It's the argument of the respondent that it is the lack of management of this policy and the history which has led to the terms that should be inferred into the contracts of employment.
PN1433
The lack of management which evidence was led - sorry, evidence was provided by Mr Greenhill and Mr Morrison as to the haphazard nature of the application of that policy and evidence was - evidence has been submitted and led by the respondent that the entitlements that are being sought to be inferred into the contracts arose due to that sort of behaviour, that the circumstances where the employees gained these entitlements were not directly or obviously circumstances arising out of the motor vehicle policies. These policies were not subsequently part of the agreements that were reached between individual employees and the applicant which gave birth to the entitlements which we are in dispute about today.
PN1434
The applicant then took his Honour to clause 11.1 of the EBA, the Endeavour Energy agreement 2010. That says that the employees are to get their own way to and from work, paraphrasing. There is no argument that the respondents are trying to infer a term against that into the EBA. It's been given at the outset, but the respondents still press that this is a statutory imposition on the employment relationship and that the contract of employment stands apart. The applicant raised this in terms of the presumed intention that his Honour should read into the intention of the parties in the making of these entitlements, and the respondents submit that the presumed intent should not be - the clause of the EBA should not be given great weight in terms of the presumed intention given that the conditions that the respondents are seeking to have inferred, or the term that the respondents are seeking to have inferred arise outside of this condition.
PN1435
They are expressed, they are agreements, they are entitlements to take-home vehicle, in express opposition to the employee getting their own way to and from work, and that they were not included in the contract of employment when those conditions were created. The applicant then led the tribunal as to the evidence of there being no custom and practice. The respondents raised the attention of the tribunal even to evidence this morning, the evidence of Mr Ferguson relating to Mr Swift. There is custom and practice in this organisation that allows for the provision of vehicles and entitlements to vehicles.
PN1436
The entitlement may arise by the employee taking a contract of employment for a specific role, and that role identifying the entitlement to a take-home vehicle. The respondents also asked the tribunal to treat the evidence supplied in the statement of Mr Ferguson lightly on the basis of the level of uncertainty that arose from this morning's oral evidence and the credibility arising out of that in relation to the statements and the recollections that it contains. The applicant in its closing submissions led the tribunal to the alterations and explained those to the tribunal, that it contained within DRM2 the alterations that were in version 2 and version 3 of the vehicle policy.
PN1437
The respondents submit that the approval processes to not impact on the entitlements that were provided to prior to these vehicle policies and prior to - and due to the past actions by management of the applicant and which were subsequently not enforced until the applicant sought to make these - to review these policies and make these impositions. Your Honour has expressed concerns over the individual application after hearing the applicant's submissions. The individual application of the imposition of this policy, and this is the crux of the dispute today, that there are terms which the respondents believe should be inferred into the contracts of employment, and the broad brush approach for variation of policy without review of the individual circumstances and the individual contractual terms which should be inferred into the contract of employment will cause - will ultimately lead to a loss.
PN1438
THE SENIOR DEPUTY PRESIDENT: I'm still - it's the same problem, I suppose, I had with the - which - I mean, is it actually the change in the policy that you're objecting to? Because there's not - really not much in the policy itself that changes. This is what I was saying before. I mean - or is it that you're saying, "Well, in applying the policy it's going to run up against people - some people anyway, who have an implied term in their contract which says that they've got a right to the vehicle.
PN1439
MR McKIMIN: That's - - -
PN1440
THE SENIOR DEPUTY PRESIDENT: But it's not actually the change in the policy, per se, you're really objecting to, is it?
PN1441
MR McKIMIN: No, it's not. The respondents have outlined in their submissions that they don't object to managerial prerogative, the ability to reasonably alter policy with due notice and if needed recompense where that may be required. It's the intention to apply the policy which historically has not been applied. If I take - - -
PN1442
THE SENIOR DEPUTY PRESIDENT: Actually, sorry, I just - I don't know if you were going to deal with this, sorry, but while we're on this point there is that issue of - I think in your original submissions you did say - you did talk about the lack of consultation and there was some - the policy was not - I shouldn't endorse the application of the policy because there hadn't been adequate consultation. Mr Philips dealt with that a bit and there was a bit of evidence on that. Are you still pressing that point? I mean - - -
PN1443
MR McKIMIN: We don't press that there is no longer - sorry, we don't press that there has been no consultation. We press that at the time this dispute arose, which was identified as almost two years ago, there was no consultation at that time which led to the dispute arising.
PN1444
THE SENIOR DEPUTY PRESIDENT: Right. But you're not saying now after what's gone on for the last could of years that there's been no consultation or not adequate consultation? I mean, you may not be happy with the result.
PN1445
MR McKIMIN: We're not pressing that there - we're not saying or submitting that there has been no consultation, we're just submitting that at the time the dispute arose there was no adequate consultation to allow the applicant to be aware of all the issues that this imposition - the review and imposition of a policy would entail. So it's not - we're not pressing that there has been no consultation. We no longer press that.
PN1446
THE SENIOR DEPUTY PRESIDENT: Sorry to come back to this. Sorry, just to sort of clarify, so you're not really objecting to the policy changing or the introduction of the new policy, it's the way that it applies and that if it's running up against people who have an applied term in their contract of employment, that either - it should be applied in way that has regard to that?
PN1447
MR McKIMIN: Correct. It should be applied reasonably with regard to the conditions that exist for those employees.
PN1448
THE SENIOR DEPUTY PRESIDENT: Right.
PN1449
MR McKIMIN: The applicant raised in terms of, in talking to the tribunal about the consultation and the opposing of the variation of the policy, that there would be a road block to the imposition - to the application of the policy. We - the respondents do not submit that it is a road block to the application of the policy or to the variation of the policy, rather that it is a need to account for the terms of employment which should be inferred into the contract of employment. The applicant then addressed the power of the tribunal to deal with the dispute. The respondents agree that the tribunal has the power to deal with the dispute. The dispute clause is one which is correctly devised within the terms of the Act and expressly provides power to Fair Work Australia to deal with the resolution of disputes relating to the relationship between the employer and the employees.
PN1450
The applicant then addressed the workplace arrangements and identified that they sought the industrial effect only rather than contractual effect. The respondents don't press that the workplace relations - the workplace agreements have contractual effect, and if they do have contractual effect, it is between the parties, the unions and not individually with the employees. The unions don't make submission - the unions don't submit that there are not entitlements or conditions or employment that arise from these, that they don't form a contractual entitlement. The applicant then addressed the tribunal on the order that should be made and that that order is that the applicant be allowed to implement its motor vehicle policy version 3, and if that is so then no compensation to any employee should be allowed.
PN1451
The respondents oppose that submission, specifically the words "any employee" and consider it appropriate to direct an order
- to request an order would be one that takes into account the needs to recognise those employees like given in the evidence of Mr
Noel Langby and others who are submitted as annexures to Mr Currey's statement and then if the order was in those terms, this order
would take account of the matters in section 578 in terms of equity. Finally, the applicant took the tribunal to its cross-examination and the evidence that it gained in relation
to asking the witnesses was there anything else, was there any other issue that they were in dispute over in this matter. The applicant
asserted that none asserted a loss.
PN1452
The respondents identify specifically as one witness that was given an opportunity to advise - being Mr Noel Langby - that there would be loss if this policy was applied to him because he would be outside of the kilometre range and that his condition that should be inferred into his contract of employment was provided to him in recognition and as payment for him not taking a voluntary redundancy. If the tribunal goes to the evidence, it will see that that is the case. The applicant also questioned the ability of the tribunal to avoid damages in relation to an order. The respondents don't seek an order for damages. The respondents seek an order, as has been discussed, that there should be inferred into the contract of employment specific terms relating to take-home vehicle usage.
PN1453
In relation to the evidence led by the respondents in this matter, the respondent submit that the evidence of the witnesses and of the statements provided and of the statement of Mr Currey and the annexures attached to that identify the scope of the issue at hand in relation to the terms and the belief that there should be inferred into the contract of employment a contractual entitlement to the take-home use of a vehicle and that this entitlement to take-home vehicle usage has been granted and existed for many of the employees for a great number of years due to a wide range of methods, all of which were given by the applicant and a number of which have been - sorry - many of which were given long before the various iterations of the vehicle policy have been discussed today.
PN1454
The respondents have made submissions and have led evidence as to the majority of these entitlements that it submits should be inferred into the contracts of employment were arising not expressly from written agreements but they were an express agreement between the manager and the employee in an oral sense.
PN1455
THE SENIOR DEPUTY PRESIDENT: But there's not an implied term.
PN1456
MR McKIMIN: It's a term which was an oral agreement and to the employee concerned it was an express agreement.
PN1457
THE SENIOR DEPUTY PRESIDENT: At law, is it an - are you saying that it was - because with all due respect, I think you might have slightly changed your position here. Are you saying that people have an implied term or an express term?
PN1458
MR McKIMIN: I take the tribunal's note on that. It is an implied term arising from an arrangement that was not ever expressly written down.
PN1459
THE SENIOR DEPUTY PRESIDENT: It wasn't written down. Are you saying that - - -
PN1460
MR McKIMIN: That term may arise, as evidence has been led, from the custom and practice or from specific arrangements such as the situation of Mr Noel Langby.
PN1461
THE SENIOR DEPUTY PRESIDENT: Okay.
PN1462
MR McKIMIN: The tribunal has heard evidence from the witnesses of the applicants themselves as to the haphazard nature of its own conducting of affairs relating to motor vehicle policy and motor vehicle entitlements - and submit that this tribunal should not be swayed by claims that this has been a simple mismanagement of policy without the knowledge of management, that there were entitlements granted with the knowledge of management or by custom and practice that existed and that was applied outside of the application of the motor vehicle policies.
PN1463
Specifically the respondents take the tribunal to the evidence of Mr Morrison who identified that line management was responsible as they knew best about the allocation of vehicles and that the applicant then sought to gloss over the years of prior custom and practice that was imposed by this same level of management which, the respondents submit, created the entitlements and which should be inferred into the contract and should not be just thrown away as simple mismanagement or failure to maintain a database.
PN1464
The union raises the mismanagement of the motor vehicle policy that has been revised and supposedly redistributed a number of times, multiple variations of policy, iterations as they were called by Mr Ferguson, which in the later iterations at least placed an obligation on senior, not line, management in relation to the review for the need of a take-home vehicle and for reporting, whether it was yearly or six-monthly, and also for the review of take-home use and the replacement of each vehicle, and the failure to maintain a database, a database which included light commercial and heavy vehicle trucks, which his Honour himself has - was not appreciated - being parked next door for, in some instances, over 10 years should not lightly be discharged.
PN1465
The union submits that this evidence is simply a cover for an attempt to unilaterally remove the entitlements of employees to take-home use of a vehicle which were provided outside of the approval processes in the vehicle policies. The respondents in their written submissions have directed the tribunal to the case law it considers relevant. Much of that case law was the same as submitted by the applicant in relation to the Constant case which identified the elements relating to inferring of custom and practice into an employment contract. The respondents submit that the evidence before the tribunal, whether in statement and annexure or in oral, do evidence the existence of custom and practice which provided entitlements to take-home use of a vehicle outside of the processes approved and written down in the motor vehicle policies.
PN1466
The respondents submit that in support of these arguments, the ongoing recognition of these entitlements by management of the applicant through the lack of activity as required to be undertaken under the motor vehicle policies identifies, in those circumstances where it was not expressly provided for in an interview for a position, that the custom and practice which provided for these entitlements does exist. The union has led evidence that the tests identified in the BP Refinery case in relation to the inferring of a term into a contract of employment also imply where employees were entitled to take a motor vehicle home and that inferring such a term would be reasonable and equitable and in many cases necessary to give efficacy to the employment contracts of some employees.
PN1467
THE SENIOR DEPUTY PRESIDENT: Can you just expand on that? How would that work? In what way is implying this term necessary to give efficacy to the contract?
PN1468
MR McKIMIN: An example - I will direct the tribunal back to the evidence of Mr Noel Langby where an arrangement was made that he did not take voluntary redundancy and because of that he got access to a motor vehicle for take-home use, and he lived a very substantial distance away from the area covered by Endeavour Energy, and should this policy be applied, he would in most instances, unless he was put onto a stand-by roster or something of that nature, lose that entitlement which originally kept him employed within Endeavour Energy.
PN1469
THE SENIOR DEPUTY PRESIDENT: But you're not saying it's an implied term, are you? I think what you're saying is that as part of the deal to keep him within Endeavour Energy, he was told, "We'll let you take the vehicle home."
PN1470
MR McKIMIN: The evidence of Mr Langby was that he was told, "You'll have a right to a vehicle." It's not written anywhere. Management opposes that view and - - -
PN1471
THE SENIOR DEPUTY PRESIDENT: Okay. Let's say I accept your version, which is that he was told - you know, he wanted to move to the Central Coast. I think that was his evidence. In fact he'd even lined up a job there - - -
PN1472
MR McKIMIN: That's correct.
PN1473
THE SENIOR DEPUTY PRESIDENT: - - - and, you know, there was obviously an opportunity to take a package at the time, and they said, "No, look, you know, don't take a package, we'll give you a vehicle so that you can get to and fro without it costing you," and this was an inducement to get him to stay.
PN1474
MR McKIMIN: It was.
PN1475
THE SENIOR DEPUTY PRESIDENT: If I find the evidence was to that effect, that's not really an implied term, is it? It's presumably an express term. It might be oral. It might not be written down but it's an express term of his - it's a variation of his contract of employment. "We'll give you a vehicle as well to keep you at work with us."
PN1476
MR McKIMIN: In that way maybe your Honour is correct but the union has looked at that in light of the test of the BP case and saw it in that light as an inferred term which should be expressly recognised in the contract of employment. I believe - - -
PN1477
THE SENIOR DEPUTY PRESIDENT: What I was querying was in what way would that be necessary to give efficacy to the contract of employment? It doesn't strike me that that's the kind of thing it could be because it's not like you couldn't do your job, for example, or, you know, the contract wouldn't work.
PN1478
MR McKIMIN: The efficacy - - -
PN1479
THE SENIOR DEPUTY PRESIDENT: I mean, he could have - - -
PN1480
MR McKIMIN: The efficacy nature of it was that he would not be able to attend the overtime requirements that the employer may impose or request, he may not be able to participate in the various rosters that the applicant may seek to impose.
PN1481
THE SENIOR DEPUTY PRESIDENT: I see. Okay. Right. Okay.
PN1482
MR McKIMIN: So in submissions relating to the BP case and the elements of inferring the term of contract of employment, the respondents direct the tribunal again to be mindful of not applying a too rigid approach should it find that there are terms that should be inferred and which of those terms should be inferred, as cautioned by Deane J in the Hospital Products case and McHugh and Gummow JJ in the Byrne v Australian Airlines case, where those entitlements originally arise from mainly verbal agreements struck between the employee and the applicant. The final submission would be that the respondents seek that the tribunal does not make the orders as sought by the applicant, but makes an order to the effect to imply the terms as sought, of inferred entitlement to a take-home vehicle usage, into the contract of employment.
PN1483
THE SENIOR DEPUTY PRESIDENT: I'm not sure I can do - I don't know if I can do that. I mean if your argument is that there is an implied term for some undefined - you're not saying everybody who's got a take-home vehicle has an implied term that that all is part of the contract - implied part of the contract of employment, are you?
PN1484
MR McKIMIN: No, and that - - -
PN1485
THE SENIOR DEPUTY PRESIDENT: So it would be some sort of undefined group though presumably including the people who you've called as witnesses, but maybe others as well, who - - -
PN1486
MR McKIMIN: The respondents did the original submissions that the scope of this dispute may not have encompassed everybody that has such an implied term - - -
PN1487
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1488
MR McKIMIN: - - - or an inferred term. If we don't seek to draw them into it at this point in time, but - - -
PN1489
THE SENIOR DEPUTY PRESIDENT: I'm just sort of thinking what it would be you are seeking - I mean, I'm not sure I could just say, "Well, I will imply a term," - you're saying there is an implied term there or it's part of their contract of employment. So it's not a question of me then saying, "Well, I imply it," or "I infer it," or, "It is now an implied term." Presumably what you're saying is that - I don't want to put words in your mouth - but I mean, the way the employer should - or the way the applicant should apply its policy should have regard to those cases where there is an implied term and something along the lines of, "I find that there are people who, based on the evidence, there is an implied term in their contract of employment."
PN1490
MR McKIMIN: Well, that would be the outcome that we sought from an order.
PN1491
THE SENIOR DEPUTY PRESIDENT: Yes. Okay, thanks.
PN1492
MR McKIMIN: Thank you.
PN1493
THE SENIOR DEPUTY PRESIDENT: Okay, thanks. Mr Philips?
PN1494
MR PHILIPS: Your Honour, I just want to look at that business efficacy point which your Honour raised the question about. Not one person said they couldn't do their job without a take-home vehicle. Not one of them.
PN1495
THE SENIOR DEPUTY PRESIDENT: No.
PN1496
MR PHILIPS: So I mean, in many respects, my friend has posed to your Honour the wrong test. He said that lack of management policy has led to the implication of these terms. That's not the test, the test is whether or not the issues referred to in the BP case have been met in individual cases. Because it's not possible, your Honour, unless evidence is led about an individual circumstances, we've only heard from the fellows who have been called, your Honour can't make a broad general order saying, "Okay, a term has been implied," by virtue of the conduct that you've received evidence about, your Honour. Because the evidence you've received does not constitute evidence about a broad custom and practice. Each of the fellows said that they could only speak for themselves. So I mean, in terms of any order your Honour would make, it could only be limited to the persons to whom evidence has been given, and even on those persons, your Honour, like I said they don't satisfy the BP test. I mean, I'm sitting here, sort of, in reply - - -
PN1497
THE SENIOR DEPUTY PRESIDENT: What about with Mr Langby as we praised him as an individual, because he had some particular - well, allegedly particular circumstances. Let's say I was to find - I'm not saying this is what I would find, but let's say I was to find - well, what in fact - well, why isn't it a situation where he was planning to leave and he was told, "Well, if we give you access to a take-home vehicle, will you stay?" I'm not saying the evidence goes this far necessarily, but let's say it did. You know, "Will you stay then?" and he says, "Okay, I'll stay on that condition," or words to that effect. Isn't that - that may not be an implied term but isn't that - - -
PN1498
MR PHILIPS: Well, this is - as I say, it's not an implied term.
PN1499
THE SENIOR DEPUTY PRESIDENT: It's an expressed term.
PN1500
MR PHILIPS: Either there's an expressed agreement at that point or not.
PN1501
THE SENIOR DEPUTY PRESIDENT: Yes. But if there was, then that would be a contractual oblige, wouldn't it?
PN1502
MR PHILIPS: Well, yes, that's an expressed agreement, in that individual given circumstance.
PN1503
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1504
MR PHILIPS: But, one problem though with that is, well, what are the terms of that agreement. Because all your Honour has heard is probably similar to what your Honour has just said in that, "Well, look, if you don't go we'll give you an access to a take-home motor vehicle." Well, does that mean, "This vehicle is yours for while ever you are employed by us? We will provide it fully maintained?" I mean, what are the terms? See this - - -
PN1505
THE SENIOR DEPUTY PRESIDENT: Well, then you could possibly imply - - -
PN1506
MR PHILIPS: Well, look, the problem here is what - the evidence is not at the point where you actually could - capable of forming a view as to actually what the agreement was, and that's not my burden to prove.
PN1507
THE SENIOR DEPUTY PRESIDENT: No, sure.
PN1508
MR PHILIPS: So the problem not only in Mr Langby's case, but in the case of the other fellows which have been called is that the term which the union seeks to imply, no-one gave evidence about what they thought it was. Is it access to take-home vehicle, on what basis? Because if you go to BP, really the fourth point - well, they talk about "The term must be so obvious it goes without saying, must be capable of clear expression," and on the basis of the submissions your Honour has just heard, the term is not capable of clear expression, because it's not been formulated as to exactly what was the custom and practice. Because normally in cases like this, your Honour, you say, "Okay, there's a broad custom and practice in either the industry or at the employer, that you get a take-home vehicle, it's fully maintained, you have it during these circumstances or within this role," and indeed the evidence has been that the vehicles attach when they're given to take home to a position and not to the person.
PN1509
Now, if your Honour accepts that evidence, very hard to imply a term into an individual's contract which he then takes with him around Endeavour Energy because he goes to another position. The evidence is it attaches to the position which has the requirement, take-home use for call-out or start or finish on the job. For example, if we were to say, "Okay, we no longer require you to start and finish on the job, everyone is going to the depot." If that was the term you implied, well on that basis, "Sorry mate, you lose the car." So that's what I mean, the term which my friend is seeking - - -
PN1510
THE SENIOR DEPUTY PRESIDENT: But couldn't you imply a term that while you are doing this position and you need to do - and you get called out and take call-outs to someone - - -
PN1511
MR PHILIPS: Well, that's the application of policy.
PN1512
THE SENIOR DEPUTY PRESIDENT: All right, okay.
PN1513
MR PHILIPS: That's the application of policy. The test here is the one in BP and, in my respectful submission, it's not been satisfied, on the balance of probabilities. See, your Honour and I are having this debate now, simply because it hasn't been crystallised in the manner from the evidence that your Honour could confidently say, "Right, there is this notorious custom and practice at Endeavour Energy regarding motor vehicles and this is it." If there was, we'd have heard a procession of the union witnesses through the witness box saying, "Well, this is what it is. When if you work in this job at this depot, the car is yours. It's been like that since the year dot, and that's the custom and practice I'm reliant upon and here's four other people who will back me up on that."
PN1514
There's just no evidence which gets to that point. So at the threshold level, where we have to see exactly whether the points in BP are satisfied, it doesn't get there. But I mean the real problem is that the business efficacy question which, I think your Honour might be troubled about because you asked my friend, none of them said that. Not one said that they couldn't do their job. Now, on that basis - in fact Mr Collimer was quite sanguine about it, "Well if don't have the take-home vehicle I guess I'd have to use my own car." So not a problem for him. So I think that the real difficulty, your Honour, in this matter, has probably just been encapsulated in that exchange with my friend in that, "Well, what is the term, what precisely are you asking me to do?" If it was on the basis that your Honour has to say, well it's the application of the policy, and there's no opposition to that. I mean, it's a problem with Mr Langby because effectively what he's alleging there is the expressed term.
PN1515
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1516
MR PHILIPS: But there's not, say, "Well, look, I stayed because I was going to take a redundancy, they said we'll give you access to this and therefore I made a decision to stay." But what is the agreement? What - at a broad level, if you accept that that's what Mr Langby says - but what is the agreement? Is it, "We promise to have a motor vehicle for him forever and a day while he's our employee?" Even if he moves, supposing he moves out into the area out at Blacktown or somewhere like that. The problem is, your Honour, the evidence is not got to the point where you can confidently make a decision of that nature.
PN1517
THE SENIOR DEPUTY PRESIDENT: Okay.
PN1518
MR PHILIPS: So I think, your Honour, with the greatest respect, I think that's the problem with my friend's case, in that they have not proven the term to be implied, and that's really the clear expression spoke about in BP, and they've not proven the broad custom out of which that term would come to. Or would come from rather, I beg your pardon. Further than that, your Honour, I don't have anything else arising from my friend's submissions.
PN1519
THE SENIOR DEPUTY PRESIDENT: Okay. I will reserve my decision.
<ADJOURNED INDEFINITELY [12.40PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
DREW KENNETH FERGUSON, SWORN PN964
EXAMINATION-IN-CHIEF BY MR PHILIPS PN964
EXHIBIT #E8 COMPANY PROCEDURE DOCUMENT GTT0016 DATED 14/12/2001 PN981
CROSS-EXAMINATION BY MR MCKIMIN PN999
EXHIBIT #U8 STATEMENT OF MR BALATKA PN1101
RE-EXAMINATION BY MR PHILIPS PN1155
THE WITNESS WITHDREW PN1163
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