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3647 
, Transcript of Proceedings [2015] FWCTrans 527 (23 September 2015)
TRANSCRIPT
OF PROCEEDINGS
Fair Work Act
2009
1052390
SENIOR DEPUTY PRESIDENT RICHARDS
AG2015/ 3647
s.210 - Application for approval of a variation of an enterprise agreement
Application by LCR Group Pty
Ltd
(AG2015/ 3647 )
LCR Group Pty Ltd Mobile Crane Enterprise Agreement 2011 (ACN: 095 626 798)
(ODN AG2012/271)
[AE892565 Print PR521480]]
Brisbane
1.35 PM, TUESDAY, 1 SEPTEMBER 2015
PN1
THE SENIOR DEPUTY PRESIDENT: Good afternoon everyone, please take a seat. Appearances are unchanged but I suspect the parties may want to tell me something about the progress of this matter in terms of the availability of witnesses.
PN2
MR BORG: Yes, your Honour. I've conferred with my friend and I have spoken to your Associate. What I wanted to advise the Commission was that for a variety of reasons the additional witnesses whom have filed additional statements since the last hearing, won't be available at the hearing today. One will be available via telephone and is happy to give his evidence over the telephone. The other is the general manager of a national enterprise crane operations business, he's currently interstate and he's currently in a meeting until 3 pm and is therefore unavailable to attend this hearing himself.
PN3
I must apologise for that but what I do say is that at this stage we would still intend to get his evidence, so it may be that we reconvene for his evidence alone. I'd be happy for that to occur and I would be happy for that to occur via telephone for the convenience of the parties.
PN4
THE SENIOR DEPUTY PRESIDENT: Ms McCartney, do you have anything to say about all of this?
PN5
MS McCARTNEY: Sorry, that was a bit different to what I had understood. I understood that they were no longer calling Mr Schalck. If it's intended to rely upon his evidence, obviously he needs to be made available for cross-examination. We have objected to his evidence in its entirety and it may be that it's necessary to rule on that to decide. I would certainly significantly oppose coming back for the hearing of one witness, given the extended delays that we've had.
PN6
THE SENIOR DEPUTY PRESIDENT: Let me say - I've read your submissions about that matter. Let me say a little on that issue. Look, if I sort of talk informally I'd have to say that the Commission doesn't very often strike out evidence as such and it doesn't act as if it's a court in that regard at all. There are circumstances where the court doesn't admit new evidence and doesn't admit it in certain circumstances in the appellant function, and it doesn't permit it when the case is effectively closed and there are some other situations as well. But in the ordinary course the Commission doesn't strike out evidence, it simply - and it wouldn't - it doesn't do so as a matter of practice because it's not bound by the rules of evidence and it has that broad brushed inquiry facility or function if you like. But equally so it doesn't have regard to what is clearly hearsay evidence or evidence that's not directly guarded by the person claiming to have knowledge, and it gives appropriate weight to such evidence. That's where things tend to sit generally in the jurisdiction. So whether or not you want - whether or not it may be the case that Mr Borg wants to rely on Mr Schalck's statement but whether or not you wish to cross-examine on the basis that it's evidence with certain defects, which you intend to rely upon for purposes of your closing submission and for purposes of directly me as to what weight I give it, then that's the matter for yourself. I'd take it up but as to what weight I can possibly give it is questionable.
PN7
I'd take it up because I said there is that broad brushed inquiry function the Commission has. It can inform itself as it wishes and sometimes in some cases evidence arises in some other corner that's unanticipated that gives some corroborative effect to some other evidence. It happens in that way sometimes. So I'm not inclined to rule it out or strike it out as a court might, in a strict reading of the Evidence Act. But equally so, I can't give hearsay evidence particularly great weight, unless it gives rise to some corroborative circumstance with some other evidence and because there's some other evidence that links with it, it gives an effect that it may not otherwise have had on its own.
PN8
That's where I stand on the matter, it's a question as to - Mr Borg no doubt will continue to press it, as he's indicated this afternoon. Whether or not you wish to cross-examine on evidence of that type is another issue, given what I've said.
PN9
MS McCARTNEY: Perhaps the way forward is to just simply start and if he's available at the time we'll take it at that. I mean I understand - - -
PN10
THE SENIOR DEPUTY PRESIDENT: See I'm not sure - I don't know where your - I mean that's all for you of course - - -
PN11
MS McCARTNEY: Well did you say he would be available - - -
PN12
THE SENIOR DEPUTY PRESIDENT: - - - I don't know where your cross-examination would be than otherwise, "Did anyone ever say this to you?" "No, but I heard someone said to someone". Where do you go from there?
PN13
MS McCARTNEY: Yes, I understand.
PN14
THE SENIOR DEPUTY PRESIDENT: I don't know what you - I don't know reasonably what the inquiry would be beyond that. So what do you want to do? We go to Mr Hoya, do we?
PN15
MS McCARTNEY: Well I still have two witnesses.
PN16
THE SENIOR DEPUTY PRESIDENT: Sorry, that's right, you have the overhang from the last proceeding.
PN17
MS McCARTNEY: I would suggest that Mr Murray is the - he has an additional statement that arose from the material put and then Mr Partington.
PN18
THE SENIOR DEPUTY PRESIDENT: That's also including the supplementary - that's the supplementary - - -
PN19
MS McCARTNEY: We haven't done Mr Partington's evidence at all, so it's the whole of Mr Partington's evidence.
PN20
THE SENIOR DEPUTY PRESIDENT: Yes, and that will now - well, Mr Partington's a figure in the evidence of Mr Schalck, isn't he, if I remember?
PN21
MS McCARTNEY: He is.
PN22
THE SENIOR DEPUTY PRESIDENT: So is he bringing anything new to his evidence through evidence in-chief in respect of those claims?
PN23
MS McCARTNEY: I have two questions that I'd like to ask him as a result of those matters.
PN24
THE SENIOR DEPUTY PRESIDENT: We have to recall Mr Murray.
PN25
MS McCARTNEY: Yes.
PN26
THE SENIOR DEPUTY PRESIDENT: How do you want to proceed then?
PN27
MS McCARTNEY: I do Mr Murray first and then Mr Partington.
PN28
THE SENIOR DEPUTY PRESIDENT: Any objections to that process, Mr Borg?
PN29
MR BORG: I just want to flag that I may have an issue, I don't know yet what those two questions might be. I do know that it's a number of days since we filed our evidence of Mr Schalck, and it would have been open for Mr Partington to have provided a further statement in that regard if had anything to say about it, as did I believe Mr Murray in relation to Mr Hoya's evidence.
PN30
MS McCARTNEY: Well your Honour we objected to Mr Schalck's evidence. Your Honour's ruled on that and I have two questions I'd like to put in as a result of that ruling, if I might be permitted.
PN31
THE SENIOR DEPUTY PRESIDENT: Well if they give rise to some matter that requires some further deliberation and reflection for the purposes of other evidence, I'll give you that opportunity. So we'll just have to see what the questions are, what they yield and whether they require any additional period for you, Mr Borg, to consider how you're going to respond to it.
PN32
MR BORG: Yes. I'd just - thank you. I just want to also make the comment about - because your Honour has ruled on the admissibility of Mr Schalck's evidence but your Honour's also made some comments about the weight you might or might not give. I note that that's not a ruling, that's just a comment that you've made which applies generally to evidence of this nature. What I say in relation to that is that - and I note the objections of my friend in relation to the character of that evidence as hearsay. I would say that it's not hearsay in its totality. We don't seek to prove the truth of all matters that he asserts or asserts of others in relation to that. We simply say that in certain respects some evidence is simply made to evidence that utterances had occurred, we don't seek to prove the truth of those utterances.
PN33
What I say in addition to that is that whilst it is noted that other elements of it might or might not be hearsay, even if it were to be hearsay, what we say is that Mr Schalck has provided that evidence on the basis of his position within the company for which he works. We say that that arises out of the corporate knowledge and on that basis it would be something that will be open to the Commission to consider, on the basis of - - -
PN34
THE SENIOR DEPUTY PRESIDENT: Yes, I think that was the substance of my comments about sometimes this evidence on its own doesn't mean much but it can suddenly create a nexus with some other evidence that emerges. For instance, and who is to tell in Mr Partington's response to some questions about - through evidence in-chief or through cross-examination, he may give rise - it might give rise to some evidence that might provide some buttress for Mr Schalck's evidence. That's how it happens, you don't know what's going to happen.
PN35
MR BORG: Thank you, your Honour.
PN36
THE SENIOR DEPUTY PRESIDENT: None of us appear to, particularly me, have a clear pronunciation for Mr - is it Schluck or - and I think - - -
PN37
MR BORG: Give me a moment.
PN38
THE SENIOR DEPUTY PRESIDENT: I think we're going to need it.
PN39
MR BORG: It's his first name that I have difficulty with. Sorry, it is Schalck.
PN40
THE SENIOR DEPUTY PRESIDENT: Schalck. That's going to help us all, I think.
PN41
MR BORG: So we might stick with that. Thank you.
PN42
MS McCARTNEY: I might call Mr Murray.
PN43
THE SENIOR DEPUTY PRESIDENT: Yes.
PN44
THE ASSOCIATE: Please state your full name and address.
MR MURRAY: Darren Wayne Murray, (address supplied).
<DARREN WAYNE MURRAY, AFFIRMED [1.46 PM]
EXAMINATION-IN-CHIEF BY MS MCCARTNEY [1.46 PM]
PN46
MS McCARTNEY: Thank you, Mr Murray. You've given evidence in this proceeding already. Have you prepared a further affidavit in these proceedings?‑‑‑Yes.
PN47
Do you have a copy of that with you?‑‑‑Yes, in my pocket.
PN48
Is that a three page affidavit?‑‑‑Yes.
PN49
Signed by you on the last occasion?‑‑‑Yes.
PN50
Dated 17 August 2015?‑‑‑17 August - - -
PN51
Just on the back page there?‑‑‑On the back page.
*** DARREN WAYNE MURRAY XN MS MCCARTNEY
PN52
Just next to your signature?‑‑‑It says August, there's no day, I didn't put a date on this one. It must be the other one. This is the same as the original but not the - my original.
PN53
I might just hand a copy of this one so there's no confusion?‑‑‑Sorry.
PN54
That's all right. So is that your signature?‑‑‑Yes. Yes.
PN55
Dated 17 August?‑‑‑Yes.
PN56
Do you have anything you wish to add to that affidavit?‑‑‑No.
PN57
I tender that. I think we filed an unsworn copy because there were some issues getting a JP to swear it. There might be two versions on the Commission file, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes, that's all right. I'll mark this as - I'll join this with LCR3.
EXHIBIT #LCR3 (IN ADDITION) AFFIDAVIT OF DARREN MURRAY DATED 17/08/2015
PN59
MS McCARTNEY: I've no further questions.
THE SENIOR DEPUTY PRESIDENT: Good, thank you. Mr Borg.
CROSS-EXAMINATION BY MR BORG [1.49 PM]
PN61
MR BORG: Mr Murray, you filed a further statement in relation to your evidence before the Commission?‑‑‑Yes.
PN62
That was in August of this year. Yes?‑‑‑Yes.
PN63
You've filed that evidence in relation to Mr Hoya's evidence, that's correct isn't it?‑‑‑Yes.
PN64
I note on the other that you refer to events in your statement from 26 June 2015?‑‑‑Yes.
*** DARREN WAYNE MURRAY XXN MR BORG
PN65
Yet there was absence of any account of events on 26 June in the prior statement?‑‑‑The prior statement?
PN66
The statement of the - just give me a moment I'll find the date for you. You filed another statement in July 2015?‑‑‑Yes, I believe - - -
PN67
You were in the Commission and I asked you questions about that statement?‑‑‑Yes.
PN68
In that statement there was nothing in relation to events that you say occurred on 26 June 2015?‑‑‑That's correct.
PN69
That's quite an omission isn't it, wouldn't you say?‑‑‑Beg your pardon?
PN70
That's an omission isn't it, wouldn't you say?‑‑‑An admission? I don't understand.
PN71
Well, you didn't included it in your statement. That's correct, isn't it?‑‑‑Yes, I didn't include this in the last one, yes.
PN72
I just want to ask you a couple more questions, Mr Murray, I'm only going to be brief. I take it you've read the statement of Mr Hoya?‑‑‑Yes.
PN73
Indeed, you say that you were shown that on 6 August 2015?‑‑‑Mm-hm.
PN74
So quite promptly after it was actually filed with the Commission on the 5th. You'd agree with that?‑‑‑Yes.
PN75
Might I ask you, have you spoken to Mr Hoya since you've read his statement?‑‑‑Yes.
PN76
Yes, you have. You in fact telephoned him, did you not?‑‑‑Yes.
PN77
You're aware that Mr Hoya won't be coming into the Commission today?‑‑‑Not fully aware no, but - - -
*** DARREN WAYNE MURRAY XXN MR BORG
PN78
You're somewhat aware that he's not coming into the Commission?‑‑‑I did hear whispers but I don't know whether that's happening or not.
PN79
So you accept that you did telephone him and I put it to you, Mr Murray, that in that telephone conversation you indicated to him that you'd agreed with the content of his statement?‑‑‑No, he - - -
PN80
I'll just remind you you're under oath?‑‑‑Yes, he did elaborate that he did say somethings and to be honest I don't know what - I can't remember what he actually said because he couldn't remember word for word what he had written.
PN81
But you're not answering my question. My question to you is that you did, didn't you, indicate to him that you agreed with the content of his statement?‑‑‑Some of it, yes.
PN82
Yet there's nothing in your statement here that you say you actually agree with?‑‑‑I don't really understand that.
PN83
Which parts did you say you agreed with in relation to his statement, Mr Murray?‑‑‑That we met at Zac's for coffee. We had chats.
PN84
Well I put it to you, Mr Murray, that you agreed with other content of his statement, most notably the assertions that he says that you made in relation to LCR?‑‑‑No.
PN85
Well again, I'll remind you that you're under oath?‑‑‑Yes.
PN86
It'll be Mr Hoya's evidence, Mr Murray, that you did agree about the content of his statement. So I'll ask you again, you did indicate to him that you agreed to the substance of his statement, didn't you?‑‑‑Some of it, yes, like that we would - there was hard times and he wanted his job back, if it was to happen basically, yes.
PN87
You said to him, didn't you, that LCR would start up again but you didn't know when exactly that might be?‑‑‑No, I didn't say that because I don't have that kind of authority to know if that's going to happen.
PN88
Well that's precisely what you said to him, isn't it, that you didn't know exactly when it would occur but that it would occur?‑‑‑Yes, I didn't know exactly or if.
*** DARREN WAYNE MURRAY XXN MR BORG
PN89
Well you say here on your statement - in your statement at paragraph 3(iii):
PN90
I don't know the answer to that, you'll have to call when you return. It's not my call.
PN91
That doesn't events an if question does it, Mr Murray?‑‑‑Well, he would have - I don't know what - I don't know what would change in that time. He would have to call. What else can I say to that? And maybe speak to somebody that would know the answer to that.
PN92
You discussed, didn't you, with Mr Hoya over the telephone that you agreed with what he says about BOOM logistics?‑‑‑No.
PN93
Mr Murray, are you aware of why Mr Hoya is not available at the Commission today?‑‑‑No, could be because he's working.
PN94
That's part of the reason, Mr Murray, that he wasn't available this morning but it's this afternoon that we're talking about. Mr Murray, Mr Hoya indicated to me that the reason why he would not be coming into the Commission today was because LCR is a client of his current employer. Would you accept that LCR is a client of his current employer?‑‑‑I suppose - yes, I suppose we are or he is, they are.
PN95
Mr Hoya disclosed to me that on that basis he would fear reprisal if he were to come and give evidence against LCR?‑‑‑I can't answer that. I don't know that situation.
PN96
Going to the events that you say occurred on 26 June, do you recall Mr Hoya asking you if LCR would start again?‑‑‑I'm not sure if he said he was hoping that it would.
PN97
So would you know whether he asked you if LCR would start again?‑‑‑No, he never asked me specifically if they will start. He was hoping that they would start.
PN98
Because you spoke on the basis that it would start again at some stage?‑‑‑I would hope for myself, yes. I hope at one stage but that is nothing. I don't control any of those.
PN99
Thank you.
*** DARREN WAYNE MURRAY XXN MR BORG
PN100
THE SENIOR DEPUTY PRESIDENT: Re-examination?
PN101
MS McCARTNEY: I have no further questions, thank you, your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you. You're excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [1.57 PM]
PN103
MS McCARTNEY: Call Mr Partington.
PN104
THE ASSOCIATE: State your full name and address.
MR PARTINGTON: Colin George Partington, (address supplied.)
<COLIN GEORGE PARTINGTON, SWORN [1.58 PM]
EXAMINATION-IN-CHIEF BY MS MCCARTNEY [1.58 PM]
PN106
MS McCARTNEY: Thank you, Mr Partington. Have you prepared two affidavits in these proceedings?‑‑‑Yes, I have.
PN107
Do you have copies of those affidavits with you?‑‑‑Yes, I do. Would you like me to take them out?
PN108
Yes. If I can take you to the larger affidavit?‑‑‑Yes.
PN109
Is that an affidavit that runs to - I think it's paginated to 127 pages[sic]?‑‑‑Yes.
PN110
On the - at the end of the affidavit itself, on the 8th page, does that have - is that your signature that appears there?‑‑‑That is my signature.
PN111
Is that dated 22 July 2015?‑‑‑Correct.
PN112
Do you have anything that you want to add to that affidavit?‑‑‑No.
*** COLIN GEORGE PARTINGTON XN MS MCCARTNEY
PN113
So there's no corrections to be made?‑‑‑No.
PN114
There's the small affidavit which runs to three pages?‑‑‑That's correct.
PN115
Is that dated 30 July 2015?‑‑‑Yes, it is.
PN116
Do you have any corrections that you want to make that one?‑‑‑No.
PN117
I tender both those affidavits, your Honour.
THE SENIOR DEPUTY PRESIDENT: They're together as LCR5.
EXHIBIT #LCR5 TWO AFFIDAVITS OF COLIN PARTINGTON DATED 22/07/2015 AND 30/07/2015
PN119
MS McCARTNEY: If I could just ask you a couple of questions arising from some further material. Can you tell the Commission, did you have a conversation with Mr Albert Smith at Universal Cranes around June 2015?‑‑‑No.
PN120
Did you have a conversation with Mr Albert Smith prior to that time?‑‑‑Yes.
PN121
Can you tell the Commission what the contents of that conversation was?‑‑‑I can. Albert Smith was associated with the Crane Industry Council of Australia. He was one of the senior executives and also Joachim Schalck was also the chairman of the steering committee. I rang Mr Smith and asked him for guidance and advice on who is good to give us some industrial and some advice on matters that we were looking at.
PN122
Do you know the date of that - - -?‑‑‑12 May 2015.
PN123
So was that before or after the vote that took place?‑‑‑That was well - that was before the vote.
PN124
I've no further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Mr Borg.
CROSS-EXAMINATION BY MR BORG [2.02 PM]
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN126
MR BORG: Mr Partington, I'm just going to ask you a few questions?‑‑‑Certainly, no problem.
PN127
In cross-examination. So we're going to go over a number of topics so just bear with me?‑‑‑Thank you.
PN128
We're going to go over the previous - the most recent statement in particular. I just want to ask you firstly about the enterprise agreement that's currently on foot?‑‑‑Certainly.
PN129
That these proceedings relate to and I just want to ask you in relation to paragraph 11 of your principal statement, I might call it that, that's your longer statement?‑‑‑Yes.
PN130
I'll just ask you to clarify a few things for me if you don't mind?‑‑‑No problem.
PN131
I take it there are three depots that LCR runs. Is that correct?‑‑‑There's actually, there's four, yes.
PN132
Hendra and Wacol depots, they're the southeast Queensland operations?‑‑‑Correct.
PN133
That is Brisbane and the Gold Coast, I presume?‑‑‑Yes, surrounding region, anywhere down to the New South Wales border, yes.
PN134
So as far north as the Sunshine Coast perhaps?‑‑‑Probably, anywhere around that district, yes. I mean - yes.
PN135
There's also the southwest Queensland operation?‑‑‑Correct.
PN136
So that's Roma and Chinchilla, is that correct?‑‑‑Roma, Chinchilla.
PN137
Then plus there's a Central Queensland operation in addition to those two operations?‑‑‑So Central Queensland, yes, in Central Queensland as it speaks, yes.
PN138
That operates around Mackay, Rockhampton, is that correct?‑‑‑All divisions have a roaming cranes philosophy and they move from all locations at all times, depending on the type of equipment required.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN139
But you have three separate operations in any event?‑‑‑We have three - two, two separate operations.
PN140
So just so that I can understand, Mr Partington. So you have the southeast Queensland operation?‑‑‑Correct.
PN141
The southwest Queensland operation?‑‑‑Correct.
PN142
And the Central Queensland operation?‑‑‑Correct.
PN143
So really three?‑‑‑With two agreements.
PN144
Right. No, but I'm talking about the operations?‑‑‑Yes, sure.
PN145
Not the existence of any agreements?‑‑‑No problem.
PN146
Ordinarily, cranes up in Central Queensland would remain around there?‑‑‑No.
PN147
They would come back?‑‑‑All cranes run a roaming cranes philosophy. They're required to travel in any district or area that's required to operate anywhere.
PN148
But I'm just talking about the - how operations ordinarily run, Mr Partington, and my question is that cranes that are located in Central Queensland ordinarily operate in Central Queensland?‑‑‑Generally cranes in those districts work in those districts but they can go into other districts and they do.
PN149
Yes, no my question is - - -?‑‑‑So a Central Queensland crane can come into southeast Queensland on demand.
PN150
But I'm not asking about - yes, I'm not asking about the capacity to do that. I have no doubt that that might be the case - - -?‑‑‑Yes, no problem.
PN151
- - - but really what I'm asking about is ordinarily what occurs and - - -?‑‑‑Ordinarily they are roaming cranes, they go wherever the work is required.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN152
In their districts?‑‑‑In any area that's required. So for instance, southeast Queensland go to southwest Queensland whenever's required and southwest to southeast and vice versa.
PN153
I get it but I'm talking about Central Queensland in particular, Mr Partington?‑‑‑Okay.
PN154
What I'm putting to you is that in Central Queensland, whilst the cranes might be mobile there and might be able to go into other districts, ordinarily those cranes that are in Central Queensland stay in Central Queensland?‑‑‑If there's enough work to maintain their operations.
PN155
So the answer is yes, is what you're saying?‑‑‑I'm not sure that's the answer. The answer is they are roaming cranes and they go wherever's required to support the company's requirements. They're not assigned to those districts.
PN156
Well what about the employees, do they go - - -?‑‑‑They move as well.
PN157
I just want to move on from here and talk about the mobile crane industry itself and I just want to take your attention please, Mr Partington, to paragraph 21 of your principal statement?‑‑‑Thank you.
PN158
I'll just give you a moment to have a read of that one?‑‑‑Yes.
PN159
You say at May - the southeast Queensland operation was losing operating profits. That's correct, that's what you say isn't it?‑‑‑That's correct.
PN160
I just wanted to clarify one point about that, in particular that paragraph because you do say May 2015 but I wonder if you really mean May 2014?‑‑‑No, I mean May 2015.
PN161
I'll just have a moment to bring up this statement if you don't mind. Just bear with me, I apologise?‑‑‑Thank you.
PN162
The reason why I ask, Mr Partington, is if I could just take you to paragraph 26 of your statement?‑‑‑Yes.
PN163
Clearly, you say that there was a variation approved by his Honour on 18 November 2015?‑‑‑Yes.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN164
Clearly that date's got to be incorrect?‑‑‑No.
PN165
Well we're not at November 2015?‑‑‑That - if I can just point this out to you for clarity.
PN166
Yes?‑‑‑
PN167
As of May 2015, current trends indicate the applicant's southeast Queensland operation was and would continue to lose approximately 300,000 operating profit per month.
PN168
That's correct and true and fact. Your paragraph, which one was it?
PN169
It's not my paragraph?‑‑‑26, my paragraph 26:
PN170
On 18 November 2015, Richards SDP approved the application of the Central Queensland enterprise agreement.
PN171
No, I get that that's what you say there but my - - -?‑‑‑So that's Central Queensland and this is southeast Queensland, two different statements.
PN172
My point is about the date, Mr Partington?‑‑‑That's okay, the date's fine.
PN173
Do you want to have a look back at it?‑‑‑No.
PN174
As of May 2015, the company - - -
PN175
In 26. I'm talking about the date in 26, Mr Partington?‑‑‑18 November 2015.
PN176
What date are we, Mr Partington?‑‑‑Today - okay, so that could be 14, that's correct.
PN177
That's all I'm - - -?‑‑‑That's correct. That would, yes.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN178
So I just wanted to - - -?‑‑‑Thank you drawing that to my attention. 18 November should have been 14, correct.
PN179
Yes, no, I understand. So that was what I asked you about, that May 2015 date, Mr Partington - - -?‑‑‑May 2015 is correct.
PN180
I just want to take you back, so I apologise for that small diversion. If I just take you back to paragraph 21?‑‑‑Yes.
PN181
You say that it was due to unsustainable operating costs, and you say that it was extremely and severely - there was extremely and severely deteriorated market conditions in southeast Queensland?‑‑‑Yes.
PN182
Yet what you do say is that there were no major projects or revenue opportunities of substance identified on the horizon. That's in relation to southeast Queensland?‑‑‑In the short term.
PN183
In the short term?‑‑‑In the longer term there are some next year. In the short term immediate term, there is no major works that LCR can provide.
PN184
So your evidence is that in the medium term there would be projects for LCR to pick up again?‑‑‑Long term.
PN185
Long term?‑‑‑Hopefully. Hopefully. We've got to win them so if we're uncompetitive we can't win them.
PN186
Well can you define major projects please, Mr Partington?‑‑‑The tunnels, all the big tunnel work that LCR generally does. The gateway bridge type construction projects, those type of projects. The new one coming up, the Toowoomba bypass and projects like that.
PN187
So you're not specifically talking about resources projects?‑‑‑Sorry, could you ask - - -
PN188
So you're not specifically talking about major resources projects?‑‑‑Resource projects in southeast Queensland?
PN189
Yes?‑‑‑What do you classify as a resource project?
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN190
Well if you go to paragraph 20 in your statement, Mr Partington?‑‑‑Yes.
PN191
You say:
PN192
In the last two years the mobile crane industry has experienced a significant downturn as a result of the economy -
PN193
et cetera, et cetera -
PN194
declining resources, including gas and coal.
PN195
So you have some idea about what I might mean?‑‑‑Yes, that's more towards the southwest and southeast Queensland business - sorry, the southwest and Central Queensland business, which is heavily impacted by the resourcing sectors. Down here it's major infrastructure works that would impact our business.
PN196
You don't specify in paragraph 20 that that's really about the southwest and Central Queensland districts?‑‑‑No, but most areas would know that gas and coal is associated with southwest and Central Queensland operations.
PN197
It's because, isn't it, that you wanted to create a link between a downturn in the resources sector and an alleged trend in southeast Queensland?‑‑‑Not at all. I don't need to create any trends anywhere. The trends are the trends, the facts are the facts.
PN198
Well at paragraph 20 you're talking about resources including coal and gas?‑‑‑Mm-hm.
PN199
In paragraph 21 you're then talking about southeast Queensland?‑‑‑Correct.
PN200
It's a bit of non-sequence isn't it? It doesn't follow - 21 doesn't follow on from 20 does it?‑‑‑Well, it depends you know from what point you look at it.
PN201
Well you have distinguished the circumstances in paragraph 20 as applying to Central Queensland and southwest Queensland?‑‑‑Correct.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN202
Not to southeast Queensland?‑‑‑I think there's a follow on from, you know, the gas and the coal sectors into infrastructure sectors because governments don't get enough expenditure and of course that flows on as well into other sectors, which affects the amount of work available.
PN203
That might be your economic theory, Mr Partington, but that's not grounded in fact per se is it?‑‑‑It is grounded in fact.
PN204
Well that's your opinion?‑‑‑In my fact.
PN205
In your fact. Let's deal with your facts. I just want to - so in any event you say at 22 that:
PN206
As a result of the economic downturn it was decided that measures would need to be urgently adopted to address the financial impact.
PN207
?‑‑‑That's correct.
PN208
You're talking about the financial impact as in the coal and gas projects?‑‑‑No, the whole group of the company. The overall group, all business units that work within that group.
PN209
So I'll just take you to paragraph 23 then?‑‑‑Yes.
PN210
It says:
PN211
To be urgently adopted to address the financial impact.
PN212
?‑‑‑Yes.
PN213
So I'll just emphasise that you do say "urgently adopted" don't you? And then you go onto describe the steps that were taken at paragraph 24 or paragraph 23, 24, 25 and ultimately 26, on which - which is 18 November 2014, we say. You'd agree with that?‑‑‑You just need to take me back a bit there on 18 November. So just walk me slowly through that. I'll trying to keep up with you.
PN214
You say at paragraph 22:
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN215
As a result of the economic downturn that it was decided that measures would need to be urgently adopted to address the financial impact.
PN216
You then spell out those measures between paragraphs 23 and 26?‑‑‑Yes.
PN217
Which lead up to the variation being approved by his Honour?‑‑‑(No audible reply)
PN218
It's a straight forward question, Mr Partington?‑‑‑No, I'm not sure it is a straight forward question. I'll just ask you if you could sort of put it to me so I can understand where you're going.
PN219
So what I say to you, Mr Partington - well, you've already answered this question. You say that the measures that would need to be urgently adopted are those measures between paragraphs 23 and 24?‑‑‑Yes.
PN220
You agree don't you that those measures pertain to Central Queensland and not to southeast Queensland?‑‑‑No, they pertain to all areas of the business, the total group of the company, which we have been consistently addressing over the past - since October last year.
PN221
That's okay, Mr Partington, but I just want to draw your attention to paragraph 24?‑‑‑Mm-hm.
PN222
You say that it was - in relation to the LCR Group Pty Ltd mobile crane enterprise agreement 2012?‑‑‑Correct.
PN223
You describe that as a Central Queensland enterprise agreement?‑‑‑That's correct.
PN224
You go onto say that his Honour approved that variation, at 26?‑‑‑Correct.
PN225
So you say at paragraph 20, this is - sorry, excuse me. At paragraph 21 you describe a certain predicament which you allege is unfolding in southeast Queensland, and that is prior to presumably you taking measures to address Central Queensland?‑‑‑No, we'd seen - also we'd seen significant impacts in Central Queensland because of the mining industry downturn which was massive and dramatic. We started addressing all of our cost issues everywhere.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN226
You say that the measures - well, going to paragraphs 23 to 24 - - -?‑‑‑Yes.
PN227
So just to go through some of the measures in a bit more detail. So you say that measures included employees voting for a wage freeze under the LCR Central Queensland enterprise agreement?‑‑‑Correct, and also there's another group there as well, which was the mining group that also had a wage freeze authorised.
PN228
But you don't say that in your statement here?‑‑‑No.
PN229
So let's just go off this for now?‑‑‑Okay.
PN230
You also say that there were forced redundancies in Central Queensland?‑‑‑I don't think there was any forced redundancies in Central Queensland but perhaps I might have - just let me think about that for a minute.
PN231
Well you say it at paragraph 23, Mr Partington?‑‑‑So wage freeze, reduction of pay and working days for office, which has happened, everyone took a five per cent salary cut, the whole company - - -
PN232
It's in that final phrase within - - -?‑‑‑Yes, use - yes, that's okay, we'll get to that.
PN233
And working days for office and executive employees were reduced. Use of leave balances -
PN234
PN235
which is people have gone on annual leave -
PN236
and where possible forced redundancies.
PN237
They were offered redundancies -
PN238
and placing part of its business into care and maintenance.
PN239
Well that's not what your statement says or reads as, Mr Partington. It does say
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN240
Use of leave balances where possible.
PN241
?‑‑‑We did - we did make a number of people redundant, correct.
PN242
So you only just tried to say that where possible forced redundancies but you don't say that in your statement?‑‑‑Sorry? Can you bring that back to me?
PN243
I'll withdraw the question. So just to confirm, you say that there were forced redundancies in Central Queensland?‑‑‑That's correct.
PN244
So it's refreshed your memory - - -?‑‑‑Actually, forced redundancies in all areas of the business.
PN245
So just in the light of paragraph 21 in which you allege for there to be issues in the southeast Queensland market?‑‑‑Mm-hm.
PN246
Presumably if you say, as you say at paragraph 22:
PN247
Urgent measures would need to be addressed.
PN248
You might have done that at the time that you did take measures up in Central Queensland?‑‑‑Sorry, Mr Borg, can you just give me that one again?
PN249
Sorry, I'll break it down for you?‑‑‑Yes, break it down.
PN250
At paragraph 22?‑‑‑Yes.
PN251
You say
PN252
Urgent matters would need to be adopted.
PN253
?‑‑‑Yes.
PN254
Going back, you say at paragraph 21 that there are issues in southeast Queensland in relation to the market?‑‑‑Yes.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN255
And its effect on the operating profits of LCR - - -?‑‑‑That's correct.
PN256
Yet you don't put a date on when that decision might have been made to adopt urgent measures?‑‑‑We'd been reviewing southeast Queensland since October last year consistently through the process. What we wanted to do was see how January came out, it continued to get worse. In normal prior years, you see an upside in February. That has not come and has still not come and it is the worst operating conditions we've ever seen. Also, that's for the whole business; gas, resource and infrastructure.
PN257
Well my question is that you didn't, did you, adopt measures for southeast Queensland as well as Central Queensland at the same time?‑‑‑Yes, we did. Yes, we did.
PN258
Well you sought a variation to the Central Queensland agreement?‑‑‑We asked - correct, and we put people on working - shorter working weeks in Central Queensland.
PN259
But you did not at the same time seek a variation to the southeast Queensland agreement?‑‑‑No, because we were trying to get our Central Queensland business last year at that time sorted out first. That was our worst hotspot at the time.
PN260
So you were implementing measures between May and November 2014, towards the variation of the Central Queensland agreement?‑‑‑Absolutely.
PN261
You waited a whole year to start looking at implementing measures in southeast Queensland?‑‑‑No, we only started to see and I've said this previously, the downturn in southeast Queensland in about October last year. Central Queensland has been hit substantially for the last 18 months under the resources downturn.
PN262
So I just want to turn to another topic in your statement?‑‑‑Yes, no problem.
PN263
Mr Partington, excuse me, my throat's a bit scratchy?‑‑‑Yes.
PN264
I just want to talk about - you're aware aren't you that there were two votes conducted pursuant to this current application?‑‑‑Correct. Yes, that's correct.
PN265
One was on 20 May?‑‑‑Yes.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN266
2015. And one was on 22 June 2015?‑‑‑I've made a timeline. Your Honour, would it be all right if I used that. It has a setup of the timelines, the sequence of events so that I can just double check my dates.
PN267
They'd be in your statement, Mr Partington?‑‑‑Yes.
PN268
I'm putting it to you that there were two votes; one was on 20 May 2015 - - -?‑‑‑Yes, I believe they're the correct dates.
PN269
- - - and one was on 22 June 2015?‑‑‑Correct. Correct.
PN270
Both proposed pay freezes for employees for 1 July 2015?‑‑‑That's correct.
PN271
You're aware that - I think we might have traversed this but excuse me if we're repeating ourselves?‑‑‑No, no problem.
PN272
So in relation to the May 2015 vote, that variation was rejected by the majority of employees?‑‑‑That's correct.
PN273
In relation to the vote on 22 June 2015?‑‑‑Yes.
PN274
That variation was approved by the majority of employees?‑‑‑That's correct.
PN275
If I could just turn your attention please, turn your mind to the vote on 20 May, so that's the first one?‑‑‑Yes. Yes.
PN276
I want to go through some of the process that occurred?‑‑‑Yes.
PN277
If I could just draw your attention to paragraph 27 of your statement. I'll give you a moment to read that, Mr Partington?‑‑‑Yes.
PN278
You say that the applicant began discussions with the employees covered by the enterprise agreement for proposed variations in that paragraph, and that those variations included a pay freeze?‑‑‑Correct.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN279
That wasn't done with all employees however, was it? Sorry, I withdraw that?‑‑‑Yes, it was.
PN280
That was done with all employees, wasn't it?‑‑‑It was.
PN281
I apologise, yes?‑‑‑Yes.
PN282
That was done by way of meetings, was it not, is that correct?‑‑‑Actually, it was done in a very detailed process and procedure that everyone had to follow to ensure it met all the compliance requirements.
PN283
Well if I take you - in paragraph 28 of your statement, Mr Partington?‑‑‑Yes.
PN284
We'll go to some of the detail that you fleshed out in your affidavit?‑‑‑Sure.
PN285
So you see at paragraph 28, you say that there was an email to attend a meeting on 1 May, in relation to southeast Queensland. That's correct, isn't it?‑‑‑Yes, I think it's attachment so, yes.
PN286
So you agree with that, that there was an email to attend a meeting on 1 May? I think that's what you say, Mr Partington?‑‑‑Yes.
PN287
Those meetings were with groups of employees, weren't they?‑‑‑Look, I wasn't there but I would assume that following the script and the requirements set down that they would have been.
PN288
I'll just make a note. So well of course it means altogether because in paragraph 28 the email says to attend a meeting on 1 May in relation to southeast Queensland?‑‑‑(No audible reply)
PN289
You say that on 30 April 2015 an email was sent out for a meeting on 1 May 2015?‑‑‑Yes, should we pull the email up and have a quick look at it?
PN290
No, that's fine?‑‑‑Is there a certain point that you want me to address here or just agree that that's right.
PN291
No, no - well, I'm just confirming your evidence, Mr Partington?‑‑‑Okay.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN292
Because obviously we want to get through this script that you say was followed. So you say:
PN293
Leonard Gillespie sent an email attaching a memo to all of the employees covered by the EBA to notify employees to attend the meeting on 1 May 2015.
PN294
?‑‑‑Yes, clear instruction.
PN295
In relation - so just taking you paragraph 29, Mr Partington?‑‑‑Yes.
PN296
I'll give you a moment to read that. It's only a brief question I have in relation to that?‑‑‑Yes.
PN297
You say in that statement, don't you, at paragraph 29 that Ms - and correct me if I pronounce it incorrectly - Ms McCarran, is that correct?‑‑‑Yes, that's correct.
PN298
Contacted Mr Desmond?‑‑‑That's correct.
PN299
So turning to paragraph 30. So I apologise if this is taking a little bit to get through but I just want to go through your script as carefully as I can?‑‑‑No, that's okay. No, that's good.
PN300
You say in that that Mr Gillespie met with employees at southeast Queensland?‑‑‑That would be correct.
PN301
This is that meeting that we referred to earlier on, on 1 May, altogether. Is that a yes?‑‑‑I would expect that that's correct.
PN302
That's correct, and he provided information sheets to the employees on that occasion?‑‑‑I would assume that both people were there, Candice and Mr Gillespie, the HR lady Ms Micairan, and Mr Gillespie, correct, but anyway that's - - -
PN303
Because it's proper to send two people, would you say?‑‑‑Absolutely.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN304
We've established that either Mr Gillespie or Ms Micairan, whoever it might have been, provided information sheets to employees on that occasion?‑‑‑Yes, and a third person that worked for us, another person called Jack Goulazd might have been there as well.
PN305
Jack Goulazd?‑‑‑Could have been. I wasn't in attendance at the meetings, but I know they took place and I gave clear instruction to make sure that everyone was treated fairly etcetera.
PN306
You gave clear instructions to Ms Micairan and Mr Gillespie to attend this meeting to oversee that your script was strictly followed?‑‑‑When I say script, the instructions. Call it script, but instructions, yes?
PN307
Those were your words, so I'm just being accommodating Mr Partington?‑‑‑Thank you.
PN308
If I could just take your attention to paragraphs 34 and 35?‑‑‑Yes.
PN309
We've established the vote was conducted on 20 May 2015?‑‑‑Yes.
PN310
The outcome of the vote was that the variation was not backed by the majority of employees? We've established that, haven't we Mr Partington?‑‑‑I think that's right, on 27 May the votes were counted.
PN311
In fact the variation was overwhelmingly rejected by employees would you say?‑‑‑That's correct.
PN312
In fact, of the 30 or so eligible employees to vote, 27 voted against the variation?‑‑‑That's correct and nine were in favour, yes.
PN313
Only nine were in favour of the variation?‑‑‑Yes. Nine were in favour actually.
PN314
Nine of 10?‑‑‑Nine, yes.
PN315
We've gone through the process for the 20 May vote and so I just want to turn to the vote on 22 June, 2015?‑‑‑Sure, yes.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN316
So there's a due process I want to go through that process with you Mr Partington. If I could take you to paragraphs 37 and 38, a bit of a difference in the procedure somewhat. You say that Trent Henry sent the memo to all of the applicants South West Queensland employees by email?‑‑‑That's correct. He's the regional manager and that would be his responsibility.
PN317
And that he would be contacting them by telephone on 2 June 2015 to discuss the ongoing challenges etcetera?‑‑‑Yes, okay, that's right.
PN318
Going to paragraph 38, you say that Ms Micairan sent an email to the CFMEU to provide notice of your intention to consult with employees on 12 June 2015?‑‑‑Yes.
PN319
Just turning now to paragraph 39, Mr Partington. You say that you were informed by Mr Henry that on 12 June 2015, you met with some of the applicant's employees at the Chinchilla depot?‑‑‑The instruction would be to meet with all of the people and so it say some, that's correct, but I think some were out working and we had to communicate with them.
PN320
Well you might have given them the instruction to meet with all of the employees, but that's now what you say in your evidence here. You are saying something a little bit different now. But going to what you said in your statement, you say that Mr Henry met with some of the employees, not all of them?‑‑‑Are you just saying here - we're on 39 aren't we, just for purpose?
PN321
Yes?‑‑‑Some of the applicants - "and subsequently contacted all of the South West Queensland employees by telephone and advised them", so that's the bit that I'm talking about.
PN322
Okay, but if we just go to the bit just prior to that, you say that he met with some of the applicants?‑‑‑Well the ones that he could have physically met with, South West Queensland is a very big region.
PN323
I'm just asking you for - - -?‑‑‑And so he would have had to call people to make sure they were informed correctly.
PN324
I'm just simply asking you to confirm aspects of your statement so that we can go through it in the same kind of detail that we went through in the last process?‑‑‑No, that's alright, I'm just trying to work out where you're going.
PN325
You say that Mr Henry would contact South West Queensland employees by telephone? You say that, don't you?‑‑‑That's correct, yes, to make sure they were at the meeting, that's right, attended the meeting.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN326
Well that's not what you say in your evidence, Mr Partington, at paragraph 39. You do say that Mr Henry subsequently contacted all of the applicants South West Queensland employees by telephone and informed them of the proposed variation?‑‑‑That's right.
PN327
He didn't telephone them to tell them about the meeting. He telephoned them about the proposed variation, didn't he?‑‑‑Well that's what I've written, and I think that is correct, but I also think that that would have been about the meeting.
PN328
Mr Partington, you haven't said that in your evidence, your statement which you've affirmed?‑‑‑Yes.
PN329
And which you say is true and correct to be the best of your knowledge?‑‑‑That is correct.
PN330
And you are now saying something a little bit different. It's got to be one or the other Mr Partington. That either he spoke to employees by telephone to inform them of the proposed variation, or that he telephoned them to advise them of a meeting?‑‑‑The instruction there would have been to attend a meeting and you're looking at that word, so I can understand, variation. Yes.
PN331
You're not resiling from your statement, are you?‑‑‑Well my clear instruction to people was to make sure that people were fully informed and followed the compliance requirements to make any changes to the EBA, for the wage freeze.
PN332
You accept that Mr Henry, even if he might have raised matters about a meeting on the telephone, he also informed them about the variation that you were proposing?‑‑‑He may well have, I'd have to ask him for clarification on that.
PN333
Your statement doesn't say that, so I'll have to ask Mr Henry?‑‑‑I wasn't there, no.
PN334
Your statement says that Mr Henry simply contacted all of the employees by telephone and informed them of the proposed variation?‑‑‑That's right.
PN335
We've established that it's possible, is it not, that Mr Henry would have done more than simply informing South West Queensland of the proposed variation. You'd agree with that, wouldn't you?‑‑‑No, I wouldn't agree with that. What do you mean?
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN336
You've just said, haven't you, that it's possible that he might have also spoken about a proposed meeting?‑‑‑He would have spoken about the meeting, the proposed intention to hold a meeting.
PN337
I just want to clarify that he might have done more than simply inform South West Queensland employees about the proposed variation?‑‑‑He would not have gone outside the corporate requirements to clearly be there to make sure that people were well informed of what we were intending to do.
PN338
You weren't present, as you said earlier on?‑‑‑Exactly. I cannot be present everywhere, as you would appreciate.
PN339
No, I accept that, but you accept that you weren't present for those conversations?‑‑‑But I can say, on oath, that I called each individual manager and made it very clear instructions to them.
PN340
Whether or not they followed these instructions is not a matter in your direct knowledge?‑‑‑Well, in my 40 years of running businesses, generally most people with credibility and respect will do, follow instructions and I have no reason to doubt Mr Henry's credibility or respect in any way.
PN341
Mr Henry works at South West Queensland depot, doesn't he?‑‑‑He does, correct.
PN342
He's the manager of that depot?‑‑‑He's the regional manager for South West Queensland. He manages the two depots.
PN343
You're aware, aren't you, that there are allegations made against Mr Henry in relation to bullying?‑‑‑No, no.
PN344
Do you deny that?‑‑‑Yes. There's no formal records of any bullying of LCR ever.
PN345
If I could just tell you that it was the evidence of Mr Henry that he'd been accused of bullying at the South East Queensland depot?‑‑‑I'm not aware, and it hasn't come to my attention through HR or requirements that there was a bullying or harassment case. If there had been, I would have dealt with it immediately and there has never been a bullying or harassment case put forward that I've had to deal with, with Mr Trent Henry.
PN346
I'm not taking it to that level Mr Partington, I'm simply asking- - -?‑‑‑Well you are, you're accusing him of bullying.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN347
I'm not accusing him of bullying?‑‑‑Well you made the statement.
PN348
My question to you was whether or not you were aware of him having been accused of - - -?‑‑‑And I told you correctly, I am not, as the head of this house for 11 years, I have no claim put before me of Trent Henry bullying anyone.
PN349
When you say no claim, by that do you mean that you're aware of no accusation against Mr Henry?‑‑‑No formal accusation of any kind.
PN350
I note that you qualify accusation. I didn't qualify the word accusation. You said no formal accusation. My question was more broad than that?‑‑‑Right.
PN351
My question was whether or not you were aware of any accusations of bullying against Mr Henry?‑‑‑I have to tell you very clearly I am not aware of any bullying accusations or formal complaints of any kind against Mr Henry.
PN352
Whatsoever, is it? Is that your evidence?‑‑‑Whatsoever.
PN353
Did you consult with anybody at LCR about whether or not Mr Henry would be the appropriate person to convey that information?‑‑‑There's actually a team of people that are running this, so as you can appreciate, there's the HR department, there's his general manager that he works for and there's Mr Henry and Mr Henry, in my 11 years of watching that person work in the industry, is perfectly capable of delivering that in an honest, transparent, clear way.
PN354
I take it you would say the same of Ms Micairan. Is that correct?‑‑‑Correct, absolutely correct, 100 percent.
PN355
Yet if I can take you to the evidence that you gave earlier on, you said that it would be proper for two people to attend that meeting to ensure that it was done properly and fairly to employees?‑‑‑Correct. When they are meeting to discuss matters of this significance, there would be two people present, if not three.
PN356
Yet not on 12 June when Mr Henry phoned employees about the proposed variation?‑‑‑I'm not sure who would have been in the room with him when he did those calls. I wasn't there. I can't say that.
PN357
You don't at all say there might have been anyone else?‑‑‑It could his branch manager, could have been there.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN358
You don't say that in your evidence here Mr Partington?‑‑‑I wasn't aware, whether there was people there.
PN359
You're making this up?‑‑‑What?
PN360
You're making this up?‑‑‑No, I'm not making anything up.
PN361
Your evidence is quite clear that Mr Henry made those telephone calls?‑‑‑That's correct.
PN362
You don't say anyone else might have been present for that?‑‑‑I didn't. At this stage, I knew Mr Henry made it, and I'm not aware if there were other people in the room with him.
PN363
Going back to the prior process of which Ms Micairan assisted and Mr Gillespie assisted, you did say in your oral evidence that there might have been someone else present there at that time. You did say that, didn't you? It was Mr - - -?‑‑‑Jack Goulazd?
PN364
Mr Jack Goulazd?‑‑‑Sure.
PN365
Yet when we came to paragraph 39 you didn't say - - -?‑‑‑I think at the meeting where they were just coordinating, at the telephone call or where they meeting, getting people organised for the meeting, certainly that did not warrant to have a second person. If that was the case, or perhaps he had his branch manager there, but at the meeting to discuss - can you let me finish please?
PN366
Well I'm going to ask you a question Mr Partington?‑‑‑Okay.
PN367
You're not aware of whether or not the branch manager was there with him?‑‑‑No, but it wouldn't take me long to find out for you.
PN368
You've prepared your evidence and you didn't include that?‑‑‑Yes, that's right. Well if I had to include everything it would probably be 300 pages.
PN369
We can draw the inference, can't we - - -?‑‑‑I tried to be as specific as I can for you.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN370
Well, you weren't specific here and you didn't specify that someone might have been present?‑‑‑Yes, I'm not sure. I see the importance of it. There were at least two people, three people at the meeting where they addressed the workforce and gave them all the options and opportunities to discuss this matter.
PN371
Yes, but in the process leading up to the vote on 10 May?‑‑‑To notify people to attend a meeting. How many more people do you need to deliver that message?
PN372
You've said three, yet in the process leading up to the vote on 22 June - - -?‑‑‑Can we just be clear. I said three people would generally be present for major meetings, for matters of this significance and the telephone call to organise a meeting, I don't get three people with me when I organise meetings with people myself and I'm sure you don't either.
PN373
That might be the case Mr Partington, but Mr Henry is making telephone calls about the proposed variation?‑‑‑He's making telephone calls to organise a meeting to discuss the proposed variation.
PN374
You're contradicting your own evidence Mr Partington?‑‑‑I'm not contradicting myself at all.
PN375
I can read it back to you?‑‑‑Yes.
PN376
"Mr Henry met with some of the applicant's employees at the Chinchilla depot"?‑‑‑Correct.
PN377
"And subsequently contacted all of the applicants South West Queensland employees by telephone and informed them of the proposed variation"?‑‑‑Meeting - a variation meeting. The word on the end should have had meeting on the end.
PN378
A minute ago in your own oral evidence, you did accept that he spoke about the proposed variation. I think you're being evasive?‑‑‑I said the variation meeting.
PN379
You're being evasive Mr Partington?‑‑‑He didn't speak about the variation.
PN380
I'd ask you to remind yourself that you are under oath and it's incumbent on you to provide your evidence truthfully?‑‑‑Mr Borg, can I give you one thing? I know I'm under oath and I will never tell a lie and this is fact.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN381
When you contradict yourself Mr Partington?‑‑‑Sometimes the questions are quite confusing and at the end of the day I'm trying to be as correct as I possibly can for you, to give you the confidence that everything was done correctly.
PN382
Mr Partington, you never raised that you might have been confused by any of my questions. Are you raising that now?‑‑‑I haven't raised questions but I've asked you to clarify them a couple of times, which is the same sort of thing.
PN383
Yes, clarifications have been forthcoming. What was that sorry?‑‑‑I said okay.
PN384
Mr Partington if I can take you to paragraph 40 of your statement?‑‑‑Yes.
PN385
You say that Ms Micairan sent out to all of the employees, copies of the information sheet dated 12 June 2015 in which she detailed the proposed variation to the enterprise agreement?‑‑‑Yes.
PN386
Just to sort of break down some of the information you provided, Mr Partington. That information sheet itself was dated 12 June, was it not?‑‑‑I'd have to check, but I assume that.
PN387
It would be a little bit unnecessary, wouldn't it be, Mr Partington, if Mr Henry is to provide information about the proposed variation but so too is Ms Micairan?‑‑‑Well he didn't send the information out, he basically was organising the variation meeting discussion.
PN388
We've been over that ground?‑‑‑Yes, that's correct and would have sent the information.
PN389
You do say in your statement, Mr Partington, and I hate to go over old ground?‑‑‑Thank you.
PN390
You do say here in paragraph 39, that he telephoned employees about the proposed variation. In paragraph 40 you say that Ms Micairan sent out an email providing information about the proposed variation. So, comparing those two statements - - -?‑‑‑Can we have a copy of the CGP9?
PN391
I've got my copy, I don't know if your representative has a copy for you Mr Partington?‑‑‑I've probably got one here, no.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN392
If I could take you to CGP8, Mr Partington. Your representative might have a copy of that?‑‑‑I got eight, yes, in front of me, yes.
PN393
Well here it says Ms Micairan - it's an email from Ms Micairan ostensibly and you accept it would be from here, I take it?‑‑‑Yes.
PN394
She sent out an email on 11 June 2015. You accept that?‑‑‑Yes, correct.
PN395
In that email she says that LCR will be holding discussions with employees at South West Queensland on 12 June 2015?‑‑‑Correct, yes.
PN396
There's no - so that's just the email to the CFMEU and so CGP9 is a communication meeting attended by, it would appear, five employees on 12 June 2015. Is that correct?‑‑‑Sorry, I'm just rechecking that. What was that again?
PN397
CPG9 would appear to be a list of names of attendees at the meeting held on 12 June?‑‑‑Yes, correct. That lines up with Trent, yes.
PN398
Over the page, there's a list of names with what would appear to be a phone time, so it would be a list of employees whom Mr Henry telephoned, would that be correct?‑‑‑Yes, that would be correct.
PN399
And all at separate times?‑‑‑Yes.
PN400
Over the page, CGP10, there's what appears to be the face of an email sent by Ms Micairan at 3pm approximately on Saturday?‑‑‑Yes.
PN401
Then there's the information sheet which is dated 12 June 2015 which the author, presumably Ms Micairan, is that correct?‑‑‑Yes, she would have prepared it with Len Gillespie, the general manager.
PN402
Yes, so it's signed off by Mr Gillespie?‑‑‑Yes.
PN403
That was sent out to employees on 12 and 13 June?‑‑‑Yes.
PN404
As I said, it's something which provides in some detail the proposed variation, details of that?‑‑‑Yes.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN405
And some of the reasons as to why LCR says those variations are required?‑‑‑Yes.
PN406
And it goes on to say that if you have any questions please contact Candice Micairan?‑‑‑Yes.
PN407
It doesn't say, does it, if you have any questions please contact Mr Henry?‑‑‑Well either person would have been applicable, but Ms Micairan is certainly the head of HR.
PN408
That's not my question. So she is the head of HR so she's the proper person to speak to about this?‑‑‑That's correct, or the general manager or, you know.
PN409
You say in that email in that memo, you say the company will not tolerate intimidation or victimisation of employees for exercising their right irrespective of how they vote. You then go on to say, "If you have any concerns about this process or any fear of reprisal action, you should contact Candice Micairan immediately?‑‑‑Everybody knows that's the policy.
PN410
It does say that. I'm just seeking to confirm that that's what it say?‑‑‑That's right, it doesn't say it there, but everyone would know under the corporate policies, if there is any issues of harassment, bullying or intimidation you contact the HR department.
PN411
I'm sure that you have policies in place Mr Partington, I don't doubt that?‑‑‑Absolutely.
PN412
I note also, however, it doesn't say that if you have any concerns about this process or any fear of reprisal, you should contact Mr Henry?‑‑‑Well, it's a secret ballot. At the end of the day, people can contact whoever they want in relation to - if they've got a concern with anything. They can call me if they need to.
PN413
What I just want to put to you Mr Partington that in the light of that memorandum sent via email to all the employees, Mr Henry's telephone conversations with employees might have been unnecessary?‑‑‑No, I don't agree with that at all. These people are working in a lot of vast locations, long distances away from their depots and they needed to be contacted and made fully aware of what the company was intending to do and discuss with them.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN414
What you're saying is that some employees, whilst they might have been sent this memorandum on the 12th or the 13th, that they might not have been able to see the memorandum itself. Is that correct?‑‑‑I can't comment on that.
PN415
What you say is that employees work remotely and they might not have had immediate access?‑‑‑Correct, but they would have been provided with the documents.
PN416
Via email?‑‑‑I can't confirm that, but I would assume so.
PN417
If I could go to the list of those employees that Mr Henry telephoned. Presumably those employees who were not available at the depot are the ones that he telephoned?‑‑‑Yes, that would be correct.
PN418
Those would be the employees that would be working remotely at that time and therefore Mr Henry telephoned them. Is that correct?‑‑‑Sorry, can you just repeat that again?
PN419
Those employees Mr Henry telephoned were working remotely?‑‑‑Obviously, if he hadn't been able to talk to them in the terminal, or locally, they were away travelling somewhere in a crane.
PN420
And possibly not in receipt of Ms Micairan's memo?‑‑‑I can't confirm that, but I would assume that they were fully informed at the time that they went to their voting and had received all the information. We had no complaints from anybody saying they didn't receive any information that I'm aware of.
PN421
Because it is the case, in any event, that Mr Henry spoke to them about the proposed variation by telephone presumably?‑‑‑About the variation meeting. This is 10 days before the vote we are talking, so everybody's been informed.
PN422
If I could take you to attachment CGP10 Mr Partington?‑‑‑Yes.
PN423
My question is if someone is working remotely, presumably they'd get that memorandum within 10 days, in good time for the 10 days?‑‑‑Well they would have all come in for the vote, so they would have definitely had plenty - that memorandum, I assume, would have been distributed to them immediately, and had they not, they would have got it to them.
PN424
On the day of the vote?‑‑‑No, well and truly before the vote.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN425
Well and truly?‑‑‑And just remember, I think this was the second vote, so it's the same information provided on the first occasion to everybody.
PN426
They would have had the memorandum in hand, one way or the other via email?‑‑‑I really can't tell you if they did, I wasn't there. I'd like to say yes, but I can't.
PN427
It's a figure of speech, not in hand physically I mean, but they would have received it. They would have had good time to read it?‑‑‑I have had no complaints that no one didn't receive the correct information, so I can only assume that everyone received the information properly.
PN428
It does say in that attachment, CGP10, if I could take you to about three paragraphs from the bottom. It does say "...accordingly, LCR is seeking agreement by its employees covered by the agreement to the proposed variation. This will be done by an anonymous vote which will be conducted at the Chinchilla and Roma depots on Monday 22 June 2015 from 6am onwards"?‑‑‑Correct.
PN429
That is the meeting that we are talking about, isn't it?‑‑‑That's the vote.
PN430
That's the meeting when the vote is conducted, is that correct?‑‑‑That's correct. I wasn't there, but that would be correct.
PN431
When you're saying Mr Henry would have advised employees of a meeting, you really mean the same meeting that we're talking about here, in which to conduct the vote?‑‑‑Yes. That would be the notification, that's right.
PN432
I put it to you Mr Partington, that a telephone call from Mr Henry to employees on 12 June, notifying them of a meeting in which a vote would be conducted would be entirely unnecessary?‑‑‑Why would you say that?
PN433
Well, Mr Partington, firstly it's for me to ask the questions and for you to answer them, but in any event, you have said that employees would have received their memo in good time for the vote?‑‑‑Yes.
PN434
You have said, and you accept that Ms Micairan, in her memorandum, signed off by Mr Gillespie, would have notified employees of that meeting?‑‑‑Correct.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN435
Them having done that, and the employees having been notified of that meeting, they would not have required Mr Henry to have made that telephone call to them?‑‑‑I think it's good company protocol to make sure that everybody is fully aware before the rumour mills go into operation and that he would have been conducting - all the people in the yard said, here it is, either handing the information sheets out, or whatever what was happening at that meeting and then contacting all the people who were away to make sure they were fully informed.
PN436
That's simply not plausible, is it Mr Partington?‑‑‑Why not?
PN437
Because that wasn't the purpose for which Mr Henry telephoned those employees, is it?‑‑‑I can't follow where you're going.
PN438
Mr Henry did not - it's implausible, isn't it - he did not telephone employees simply to notify them of a meeting at which a vote would be conducted?‑‑‑He would have been letting them know there was a meeting and the information sheet was coming or was attached or sent to their emails from HR and just doing as a regional manager should, make sure that everybody's fully informed.
PN439
You didn't say that earlier on about what Mr Trent Henry might have said during the telephone conversations. At no stage have you previously said that he would have been calling them to tell them that they would be receiving a memo from Mr Gillespie. You're now saying that, but your story's changing as the questions go on?‑‑‑No, the underlying story is not changing. The fact is, he is required to communicate the process, let people know what's going on and what we were doing.
PN440
But Ms Micairan had already outlined that process in her email. You've already accepted that?‑‑‑That's okay. There's a regional manager who has a responsibility to ensure that all his people are fully informed at all times.
PN441
As their regional manager, it's his role, is it not, to get his employees into line from time to time?‑‑‑Into what?
PN442
Into line?‑‑‑What do you mean by into line?
PN443
Well whatever that can mean. You surely understand what that means?‑‑‑No, I don't agree with the words 'in line'.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN444
He directs the employees?‑‑‑He works with a team of people to make sure that everybody's working together in unity in achieving the company's objectives or what's required. Keeping equipment and people utilised.
PN445
That would include, would it not, agreeing to vary the agreement?‑‑‑It's not Mr Henry's position to - at the end of the day - his job was to clearly make sure people were fully informed. It's not his job to give people his opinion and I have no evidence or any complaints from anyone that said that he did.
PN446
That was Ms Micairan's job in collaboration with Mr Gillespie?‑‑‑Can I just go back, I made this very clear that at the end of the day it's HR, the business unit has total accountability and responsibility for their districts, not HR. HR works with the teams, the general managers and the regional blokes and the branch managers and the employees. There's a separate business sector in Brisbane that all of the people in the company have resources from. It supports the frontline services.
PN447
That's just a basic waffle, isn't it Mr Partington?‑‑‑Well you can call it what you want, but it's fact. It's business operations fact.
PN448
What I'm putting to you is that Mr Henry telephoned those employees to influence the outcome of the vote?‑‑‑No. Totally not, absolutely would not accept that in any way. You are totally wrong.
PN449
You've said that you weren't present for those telephone conversations?‑‑‑No, but I've known all of my - - -
PN450
How could you say so emphatically that that was not the case?‑‑‑Okay, because all of my managers have worked beside me, most of them for 11, some for 20 odd years. I know each manager has a little business personally. I have been associated with their growth and development, and I know exactly that that would not have happened and also, I recall you back to the point I made, that I gave clear instruction about making sure people were accommodated and fully informed.
PN451
You're talking about generalities. That might well be the case Mr Partington, but my point is that you weren't present at those telephone conversations?‑‑‑That's correct.
PN452
And yet you say emphatically what did not occur at those telephone conversations?‑‑‑That's correct.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN453
I don't see how those two things square, Mr Partington?‑‑‑Well I suppose I could ask where's the evidence that said that he did.
PN454
I'm entitled to ask you questions, Mr Partington?‑‑‑I'm entitled to ask for evidence.
PN455
Well, no, you're here to give your evidence, not to ask for it?‑‑‑Well when you put the point to me that one of my managers is doing these things I would expect that there would be some sort of evidence.
PN456
It's not for you to weigh up the evidence, Mr Partington?‑‑‑I understand that.
PN457
I'm entitled to put these questions to you, and it's your obligation to answer them truthfully and non-evasively and also specifically?‑‑‑That's what I'm doing, which I'm doing for you.
PN458
And not to refer to vagaries about working relationships that might span years. You weren't present at those telephone conversations. You don't know what occurred in them and I'm saying to you that it's within my knowledge, at least I've been told this, that employees - - -
PN459
MS McCARTNEY: Objection. Are we giving evidence from the bar table now?
PN460
THE SENIOR DEPUTY PRESIDENT: Yes, this is drifting into a soliloquy.
PN461
MR BORG: I'll withdraw the question.
PN462
Mr Henry in fact called South West Queensland employees and directed them to vote in favour of the variation, didn't he?‑‑‑No.
PN463
You accept in your written statement at least that Mr Partington spoke about the proposed variation and presumably that also entails discussion as to why a variation might be required?‑‑‑ Mr Borg, you just said Mr Partington. You meant Mr Henry?
PN464
What's that, sorry?‑‑‑ You just said Mr Partington spoke about the variation. You meant Mr Henry?
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN465
Sorry, I'll withdraw that?‑‑‑I understand, it gets confusing.
PN466
You've said in your written evidence, and we've gone over this ground, but if we could just assist in moving on?‑‑‑Thank you.
PN467
You've said in your evidence, your written evidence that is, that Mr Partington informed employees about the proposed variation and I presume as part and parcel of those discussions, he would have discussed some of the other measures the company would have taken to address an alleged economic downturn?‑‑‑Mr Borg, you just said Mr Partington again. You mean Mr Henry, yes thank you?
PN468
Yes?‑‑‑Look, I wasn't there. The instruction was that he was to communicate openly to people and give them all the information about the proposed meeting and the variation. That was it. As you say, I wasn't there.
PN469
We've spoken about the variation, but given the open licence that you say he had, he would have discussed other measures that were being undertaken by the company?‑‑‑I don't think I said open licence. I said clear instruction.
PN470
You say there was openness about those discussions. He was instructed to be open about matters?‑‑‑He was instructed to be clear and informative about what was happening.
PN471
In being clear and informative he might have provided some of the background as to measures that the company was undertaking in order to address alleged economic downturn?‑‑‑That would have been discussed at the meeting, I would assume.
PN472
If I could just take you to paragraph - so we're going to move on a bit Mr Partington?‑‑‑Okay, thanks.
PN473
I'm going to take you to paragraphs 48 to 58 of your statement and I'll give you a moment to have a read through those. These go to the other measures taken to reduce the impact of the downturn in the industry, so it's quite a segue to where we were left off. Do you want a moment to read over that, or are you fine?‑‑‑On the 48?
PN474
You might as well read from 48 to 54 it seems. I might have misnumbered, so to the end of your statement?‑‑‑Okay.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN475
If I could just take you to a few characteristics of this part of your evidence, Mr Partington. You would say, you would agree, wouldn't you that your statement, at least this part is, or perhaps even the rest of it is mostly in chronological order?‑‑‑To the best of what I see, yes.
PN476
Because at the beginning of your statement, you might recall you go from the vote on 20 May, you then go to the vote on 22 June and that's between - sorry, if I just take you to another part of your statement?‑‑‑Yes.
PN477
That would have been, if we could just trace that back, you might start at paragraph 27 on page 4 and then you'd go along to paragraph 37 talking about the vote at 22 June 2015. You then go on and then you take us from paragraph 47 onwards to 1 June. Between where you talk about 20 May 2015 on which the first vote occurred and the vote on 22 June when the second vote occurred?‑‑‑Correct.
PN478
You don't mention any redundancies that occurred in that intervening period, do you, so just a reminder. I'm going off of paragraphs 27 to 37. You don't mention in those periods in your statement, between those paragraphs any of the redundancies that occurred in that time?‑‑‑There would have been some staff redundancies occurring during that time. Okay, I might not have put it in.
PN479
In fact you only really do talk about the redundancies of full time positions at paragraph 54 which is your last paragraph in your statement, or 53 perhaps also?‑‑‑Yes.
PN480
So it will be on page 8?‑‑‑54 and 52, I'm with you.
PN481
In your statement, you've separated out from the chronology the redundancies from the voting process. You accept that, don't you?‑‑‑I accepted out the voting of the what? Can we just go back on that one a bit?
PN482
You accept, don't you, that in terms of chronologies, you have in any event, separated the votes on the one hand and the redundancies which occurred at approximately the same time or in the intervening periods?‑‑‑I made a lot of redundancies in early February of South East Queensland as well, so I think if I can be specific, there was about 20 February, there was seven operators and three administration staff from the South East Queensland Business Unit made redundant, on 20 February.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN483
But I'm asking you - - -?‑‑‑Remember I said that we were really hoping to get an upside, we never saw that and we had to make emergency action in South East Queensland.
PN484
If I take you to paragraph 53 and 54. You talk about on 4 June?‑‑‑There was some more made.
PN485
There was some redundancies?‑‑‑Yes, correct.
PN486
54 says that there were approximately 23 genuinely made. You say 23 full time positions redundant which included administrative and management positions?‑‑‑They didn't all happen on the 4th. There was some on the 4th.
PN487
Those that happened on the 4th, they're at paragraph 53, are they not?‑‑‑Yes, I would expect that that would be correct. That was about 11 and then there was 12 on the - because there was confusion at that time with the EBA on the actual payments for people over 45 years. There was an error in the agreement.
PN488
I'm not asking you to go into too much detail about that?‑‑‑But if you want to I could.
PN489
No, it's fine, I think we can be efficient with everyone's time?‑‑‑I just wanted to make sure that it was done fairly and that those people were looked after properly.
PN490
I'm just talking about where matters are placed in your statement Mr Partington?‑‑‑Yes, sure.
PN491
Because it appears to me that you've departed from the chronology?‑‑‑Can I say something Mr Borg, please? In 40 years - - -
PN492
I'm asking you a specific question. Do you accept that you've departed from the chronology in your statement?‑‑‑Look, it may look that way in your way.
PN493
No, I'm not asking how it might look in my way, right. I'm asking you have you departed from your chronology?‑‑‑I've tried to reflect it in the best way I can.
PN494
Okay, but have you departed from your chronology?‑‑‑Only you can make that assumption. My chronology, I think it's fine.
PN495
It's not an assumption, it's a question that you didn't give a straightforward answer to, Mr Partington, on the basis that you - - -
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN496
MS McCARTNEY: Your Honour, perhaps if the whole of the statement's looked at. I think that is what's being put it not actually correct, and I think it's an unfairness to the witness that there is no chronology. It goes through the process for the agreement that is responsive to Mr Sutherland's affidavit.
PN497
MR BORG: If I may, I'm not asking for my friend to give the witness's answers.
PN498
MS McCARTNEY: Well you need to put to him what's in the statement.
PN499
MR BORG: I am putting to him what's - - -
PN500
MS McCARTNEY: Well, you're not. You're creating - - -
PN501
MR BORG: I'm not going to argue with you. The witness needs to answer the questions. So, Mr Partington, on the basis of paragraph 53?‑‑‑Right.
PN502
We're talking about a date, namely 4 June 2015?‑‑‑Yes.
PN503
Further on the basis that prior to paragraph 53 in your statement, you have spoken chronologically about 10 May, 22 June. That you have departed from that chronology in your statement?‑‑‑The date chronology? So what you're saying is - I just want to understand this, okay, because in forty years I've never been to the Commission, I've never had to fill out affidavits. So, this is all new to me.
PN504
That's fine?‑‑‑What are you asking me? The 4th June date is obviously later than 22nd June mentioned somewhere else. Is that what you're asking me, chronologically of dates. Is that what you want to say yes or no?
PN505
I can try and put it to you another way Mr Partington. Your statement could have been in chronological order?‑‑‑Well, you know a lot of things I do could be in chronological order. I run a business and I put it in the very best format that I possibly could for you.
PN506
I'm simply asking you a very straightforward question, namely, you have, haven't you, departed from the chronology otherwise found in your statement?‑‑‑I don't believe I have.
PN507
That's clearly a nonsense, isn't it Mr Partington?‑‑‑Not in my eyes, but.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN508
You've gone on and we've established - - -
PN509
THE SENIOR DEPUTY PRESIDENT: If we're still going on the chronology, I think we've been around that one.
PN510
MR BORG: I'd like the witness to be forthcoming in his answers, your Honour.
PN511
THE SENIOR DEPUTY PRESIDENT: I don't think that you're going to get more out of him by continuing to ask the same question. You believe there's been a corruption of the chronology or there ought to have been a chronology inserted that made greater sense, and in constructing his evidence he's gone out of the chronological framework and he's given an answer to that.
PN512
MR BORG: Your Honour's understood the line of questioning I take it the witness has, so I can take you on this point and I can move on noting you're not being very straightforward, are you Mr Partington?‑‑‑I'm being very straightforward.
PN513
You're trying to avoid questions that others might understand quite clearly?‑‑‑No, I'm definitely not trying to avoid any of your questions, under any circumstances.
PN514
And you're not giving answers to those questions?‑‑‑I'm trying my very best to give you the answers that are - - -
PN515
That are?‑‑‑No, no, I'm trying the very best to give you the answers.
PN516
The answers that you want to give me?‑‑‑No, the answers that I want to make.
PN517
They, as you said earlier on, your facts. That's what you're trying to give me?‑‑‑Depends what we're talking to, facts about the economic outlooks. I'm at the front of it.
PN518
In fact, you're not only not being upfront about my questions, you weren't being up front, were you, about the redundancies?‑‑‑I've been totally up front with you Mr Borg.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN519
You're relegated the detail of the redundancies to the end of your statement?‑‑‑Well, you know, if that's - if I've got that in error, I apologise for that, but at the end of the day I put things into a statement that I prepared and to the best of my ability.
PN520
Well, you've done that deliberately, haven't you to disguise any connection between those events?‑‑‑No, I have not done that, in any circumstances, I have not done that deliberately and I wouldn't do it deliberately.
PN521
Well you have done to disguise the connection between those events?‑‑‑Absolutely not.
PN522
In fact, at paragraph 54 you talk about all the terminations that occurred, not just the terminations of the crane operators covered by the agreement. So you mixed all those things together?‑‑‑No, that's actual fact. I explained to you about the error in the EBA of one week's severance for a person over 45 versus 10, which I paid because there was an error in our agreement and I paid every person over 45 years old the 10 weeks instead of one and there was this period between the two.
PN523
Well again, you haven't spoken about that in your statement here Mr Partington?‑‑‑That's correct, I didn't put it in the statement because I didn't think it was necessary.
PN524
Because at paragraph 54, you talk about all redundancies across the company, including administrative and management positions?‑‑‑That's correct.
PN525
And you haven't fleshed out how many redundancies actually occurred amongst crane operators in your statement?‑‑‑Because there was a number of people on that day, including accountants and administration people needed to be made redundant.
PN526
You've attempted to disguise the redundancies in the crane operators?‑‑‑No, absolutely not.
PN527
You might have given some precision about it, Mr Partington?‑‑‑Mr Borg, I didn't want to make anybody redundant.
PN528
Do you expect the Commission to skip over these details?‑‑‑No, I don't expect the Commission to skip over the details and I'm sure they will analyse these things and make a judgment based on such.
PN529
Just give me a moment?‑‑‑Yes, no problem.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN530
You gave some evidence earlier on in addition to the evidence that you provided in your statement and it was in relation to a Mr Smith who I believe is the - is he the owner of Universal Cranes, is that correct?‑‑‑Correct, yes, and also in the Crane Industry Council of Australia Committee which we remain members of as well.
PN531
He concerns himself with industry standards and so forth?‑‑‑Correct, safety, yes.
PN532
It wasn't clear to me in your evidence, but I just call for clarification, if you don't mind?‑‑‑Yes, sure.
PN533
Are you aware of Mr Schalck?‑‑‑I've never met him, ever.
PN534
You've never met him?‑‑‑No, I don't know him and I've met him.
PN535
I take it he wasn't present at the telephone conversation you say you had?‑‑‑I don't know, I can't tell you who was on the end of the telephone.
PN536
You don't know who was, quite right. You're aware, aren't you, that he's the general manager of Universal Cranes?‑‑‑I wasn't, but I am now, after reading his affidavit to you.
PN537
I take it you've read the affidavit?‑‑‑Yes, because he's also the President of the Crane Industry Council of Australia steering committee, or the chairman.
PN538
Someone with some standing in the industry?‑‑‑I would expect so.
PN539
You would say, also, some credibility amongst the crane community?‑‑‑I don't know. I can't comment, but I would - - -
PN540
Presumably, if he holds that kind of office, you might say so?‑‑‑I don't know, I can't comment.
PN541
Someone who obviously takes quite a keen interest, as does no doubt, Mr Smith, in the industry overall and not their just their own enterprises?‑‑‑That's what the Crane Industry Council of Australia is for, yes, which we are members of as well.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN542
And you accept don't you - sorry, just to confirm you've read the affidavit of Mr Schalck, is that right?‑‑‑Yes, that's right. I've got it with me, yes. I've got it here.
PN543
And you've read the statement - just on another topic just to do a bit of housekeeping - you've read the statement of Mr Hoya as well, is that correct?‑‑‑Mr who?
PN544
Mr Peter Hoya?‑‑‑You'd have to give it back to me. I've got one somewhere but I may have glanced over it. But I'd have to re-read it if it was of anything significant. Yes.
PN545
Okay and you're aware, aren't you, that an email was sent either from the Commission or from the transcribers of the Commission a copy of the transcript of the previous hearing?‑‑‑Yes, I am. Yes.
PN546
And you had a look at that?‑‑‑Correct.
PN547
So that's our housekeeping out of the way so I'll go back to Mr Schalck's statement?‑‑‑No problem.
PN548
Sorry for jumping around here?‑‑‑Yes, no problem.
PN549
I just needed to square out a few things before we proceeded?‑‑‑No, that's okay.
PN550
So you accept, don't you, that you explained to Mr Smith LCR's intentions with regard to your EBA?‑‑‑That's not correct. That's not correct.
PN551
So at no time did you discuss any possible pay freeze?‑‑‑I would have mentioned to him in my discussion that we were seeking to get - you know, get a wages freeze. I would have, and at that time I was then asking him who I - who could give me some guidance on this matter, just some advice and direction.
PN552
So you did in essence therefore talk about the variation insofar as - - -?‑‑‑I would have said to him that I was looking to get - you know, I was looking to get some advice on how to seek to go forward in seeking a wages freeze. More so the - you know, someone to guide me through down here.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN553
So presumably you not only spoke about getting that advice from Mr Smith himself but from others?‑‑‑No, I spoke to no one else other than legal representatives in organisations. What I was really interested in - yes.
PN554
But just to clarify just for my understanding, Mr Partington?‑‑‑Yes.
PN555
So just bear with me, if you don't mind?‑‑‑Sure.
PN556
So you spoke to Mr Smith, and correct me if I'm wrong here. You spoke to Mr Smith, you asked him for his advice?‑‑‑Correct.
PN557
And you asked him to advise you about the variation?‑‑‑No, absolutely not.
PN558
You asked him to advise you on whom to get advice from with regard to the variation?‑‑‑Whom he was working with, because he mention - he sat and explained a lot of things that he was doing to me, and I did not tell him what I was doing other than seeking to get my - you know, the wage freeze.
PN559
But when you spoke about advice earlier on?‑‑‑Sure.
PN560
What was that about? Could you just - - -?‑‑‑That was the advice.
PN561
Okay, you wanted advice - - -?‑‑‑The advice of who can help us, guide us through the process. You know, Clayton Utz. Who does he find that's the most effective because, you know, there was - - -
PN562
In terms of what, however?‑‑‑Helping us by make sure we were following all the right process, doing all the right things, informing people, get - making sure.
PN563
So did you ask him about perhaps other enterprises that might have gone through this process themselves?‑‑‑No. No.
PN564
No, and - - -?‑‑‑Just what do you mean other enterprises? Other companies, or?
PN565
Yes, well Mr Smith is on the board of the cranes - - -?‑‑‑The Crane Industry Council.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN566
The Crane Industry Council?‑‑‑Yes. Or yes, association.
PN567
And did you ask him as to whether or not he knew about any other crane enterprises that had gone through a variation?‑‑‑No, I didn't ask him about that.
PN568
So the advice that you were seeking from other people was about how to get through the process, it wasn't what would they be - - -?‑‑‑No, I wanted someone to give me a clear - who were the people, the options that I could work with to help us through these difficult times. Not only for South East Queensland, for Central Queensland. All of the areas.
PN569
And he gave you that advice?‑‑‑He did.
PN570
And what did he say to you?‑‑‑He gave me the name of a person in Brisbane, not that I can - a company in Brisbane that can give us good support.
PN571
And so when you say company, what kind of company are you talking about here?‑‑‑An organisation, a legal organisation.
PN572
Other than the Crane Industry Association?‑‑‑Who they have had experience with and could give us a recommendation to. Correct.
PN573
So just so I'm clear, and I won't lead in my question?‑‑‑No, that's okay.
PN574
Would it be someone like an industrial association who might be able to give you some advice or would it be enterprises who have gone through similar variations?‑‑‑No, no, it would be more like an organisation that can come and, you know, just give you guidance on strategy, all kinds of different things. Yes.
PN575
Why wouldn't that be the Crane Industry Association?‑‑‑Because they don't have that person employed within that company, within that association.
PN576
So they have no advisory person?‑‑‑They don't have - they have different areas in technical safety and those sort of things, but.
PN577
But no one who can advise you about industrial matters, would that be correct?‑‑‑Industrial and other, you know, yes HR, those type of matters. Yes.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN578
Well, I'm aware that similar associations have that capacity to give that advice?‑‑‑Right, okay.
PN579
And you say the Crane Association, just to clarify - - -?‑‑‑He didn't give me - the people that he gave me are not associated with the Crane Industry Association and also I'm not aware that there's anyone inside the Crane Industry Council that could give us that.
PN580
So you say people now. You earlier said a person?‑‑‑Mm‑hm.
PN581
So what would it be? Would it be person or people that - - -?‑‑‑Perhaps I should make it an organisation because that covers people and person.
PN582
So which organisation was that?‑‑‑I don't know whether I should disclose that.
PN583
Well, you're here to give - - -?‑‑‑ I think that's privacy for the company.
PN584
You're here to give your evidence, Mr Partington?‑‑‑Sure, and I've given you evidence and I've told you that I've had a discussion.
PN585
I'm not seeking to have that information disclosed other than their identity. I think it's a fairly straightforward unproblematic question that you could answer if you were to be frank and truthful to the Commission?‑‑‑I would be frank and truthful, and if I'm instructed by the Commissioner to give it, I'll give it.
PN586
THE SENIOR DEPUTY PRESIDENT: You'd better tell me why do you need it; why do you need to know?
PN587
MR BORG: Well, I'm trying to get to the bottom of what it is - what the nature of Mr Smith's and Mr Partington's conversation was.
PN588
THE WITNESS: But I told you exactly what the nature of the discussion was. That's fact. 12th of May, literally no more than six minutes.
PN589
MR BORG: Okay, I'm entitled to ask the question?‑‑‑Sure.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN590
And I haven't so far had any objections, and I think it's a straightforward question that you're capable of answering. It's a question that's within your knowledge?‑‑‑Absolutely.
PN591
And I think you are confecting a problem with the question in order to avoid answering - - -?‑‑‑I'm not confecting any problem. I'm not confecting any problem. I just don't know whether I need to release that detail.
PN592
MS McCARTNEY: To be fair, your Honour, he said if he's ordered to answer it he'll answer it. I think he has expressed his concern as to privacy of someone else's information, which he'll provide if he's directed to. I think it's very clear.
PN593
MR BORG: We're not talking about persons. Mr Partington has spoken about organisations. That's simply my question.
PN594
THE WITNESS: It is a person and an organisation.
PN595
MR BORG: Well, if we could start with the organisation, Mr Partington?‑‑‑If I'm instructed to give that, I will give that.
PN596
THE SENIOR DEPUTY PRESIDENT: Is this information central to something?
PN597
MR BORG: Well, it may well be.
PN598
THE SENIOR DEPUTY PRESIDENT: Does it prove his bona fides of the conversation, does it?
PN599
MR BORG: It may well be, your Honour. Of course.
PN600
THE SENIOR DEPUTY PRESIDENT: If it's a known entity - I mean, I'm just wondering what necessarily turns on it in any event. There's an organisation that he has referred to.
PN601
MR BORG: I'm entitled to put the question. My friend has made an objection about privacy. I've constrained my question to organisations to accommodate that objection and I think that it does accommodate that objection.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN602
MS McCARTNEY: Sorry, your Honour, can I be clear about the objection is not about the company's privacy. I understand the concerns about that the information relates to the advice he was given as to who they might use, and the concern is whether the person who gave that information might object to it, as I understand the concern raised by the witness.
PN603
THE SENIOR DEPUTY PRESIDENT: Do you have any difficulty with the witness naming the company or the organisation that was - - -
PN604
MS McCARTNEY: I don't have any concern - - -
PN605
THE SENIOR DEPUTY PRESIDENT: Yes, well I think - look, so far as it will assist in demonstrating the bona fides of the conversation that you purported to have had with Mr Smith then if you can divulge the name of the organisation?‑‑‑Sure.
PN606
That would be helpful?‑‑‑Yes, IRIQ industrial and business consultants and given that I - well, I'd just put the direct - the key person is Theresa Moltoni. That's the information I was given.
PN607
MR BORG: Well, I don't see what the problem might have been here, Mr Partington. You've obviously now disclosed an organisation which is known to others?‑‑‑Yes.
PN608
And which is capable and does provide that advice quite routinely. So I put it to you that you've simply sought to evade my questions yet again?‑‑‑No. Not evade your question.
PN609
And in fact in addition to providing ultimately an answer about the organisation who gave you that advice you volunteered further information, namely the name of the person who gave you that advice?‑‑‑Did you want me to answer something, or?
PN610
Yes?‑‑‑What was that?
PN611
Well, you've just named Theresa - - -?‑‑‑Moltoni, who's the director.
PN612
Thank you. I just want to take you to events prior to the conversation with Mr Smith, which you accept you had?‑‑‑Yes.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN613
And I understand that you had a conversation with him about the state of the industry or, yes, the state of business for you?‑‑‑No, not at all.
PN614
You spoke about the pay freeze with him?‑‑‑Correct.
PN615
And you spoke about why that might be the case?‑‑‑No, I spoke to him about just asking him who can give us good guidance and support in these matters.
PN616
So you proffered no reasons as to why you might seek a pay freeze to Mr Smith?‑‑‑What's that?
PN617
So you proffered no reasons as to why you might seek a pay freeze in the telephone conversation with Mr Smith?‑‑‑I proffered no reasons.
PN618
So you gave him no reasons why you would be seeking to freeze the pay of your employees?‑‑‑No, remember I told you prior that he had talked to me through what was going on in his industry, right? And then I talked to him and said I was looking for someone that could help us through these difficult times, help us work through it with service and support advice and he gave me the name of Theresa Moltoni.
PN619
And had you been having difficulty getting that advice prior to getting the advice from Theresa Moltoni?‑‑‑I was doing my homework on the whole industry because, you know, we were seeing difficulties. Correct.
PN620
Well, what do you mean by homework, Mr Partington?‑‑‑You know, looking at all the different options. I spoke to a number of different companies about how to best go forward with these type of matters, because once again we're inexperienced. We haven't been in here for 40 years in my life and I wanted to get - make sure that I had good, solid, sound advice. I met with a number of people including Clayton Utz.
PN621
So you say that you spoke to a number of companies?‑‑‑Legal organisations.
PN622
Legal organisations?‑‑‑Correct.
PN623
Are you saying that to the exclusion of other construction companies who might have been through this process?‑‑‑To - I didn't speak to any other companies about this, about giving me their service support, no.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN624
So when you say support in this context, you mean advisory support in the sense - - -?‑‑‑Correct, advisory support.
PN625
- - - of someone who might be able to - - -?‑‑‑Experienced. Knowledge, wisdom - - -
PN626
- - - manage your industrial affairs - - -?‑‑‑Someone, you know, negotiate - you know.
PN627
So to guide you through the industrial process, as it were?‑‑‑Yes. Yes. Yes.
PN628
You don't however say whether or not you spoke to other industry figures other than Mr Smith. I presume you would have done that? Surely you would have done that?‑‑‑The industry figures?
PN629
Yes, other industry figures such as Mr Smith?‑‑‑I spoke to lots of industry people but not about this matter.
PN630
When you say "this matter" - - -?‑‑‑What you're asking me, what Joachim Schalck has put out here.
PN631
Well, not quite. I'm simply asking you whether you have spoken to other industry figures about the pay freeze?‑‑‑I don't speak generally to anyone about what LCR is doing. In this case because CICA, and Mr Smith's associated with it, he's had great experience, I called him.
PN632
Sorry, who was that, Mr?‑‑‑Mr Smith.
PN633
I thought you said another name. Sorry, I do apologise?‑‑‑Yes, Mr Smith.
PN634
Yes, go ahead?‑‑‑I do speak with others about what's happening in the industry all the time. Yes, well not all the time but maybe twice a year or something like that, I might speak to, you know, major companies particularly if they're associated with the CICA organisation.
PN635
With the, sorry?‑‑‑CICA.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN636
What is CICA?‑‑‑The Crane Industry Council of Australia, sorry.
PN637
Okay, of course, and do you know whether Hanchard Cranes is a member of CICA?‑‑‑Correct.
PN638
And would you know whether NQ Group is a member of CICA?‑‑‑Correct.
PN639
So do you accept that you would have spoken to representatives from Hanchard Cranes and the NQ Group as members of CICA?‑‑‑Yes.
PN640
And you spoke to them in relation to pay freeze?‑‑‑No, they spoke to me.
PN641
So they spoke to you?‑‑‑Correct.
PN642
About the pay freeze?‑‑‑No, they spoke to me about the CICA and the industry standards and things that were happening, economic outlooks and things like that.
PN643
So in the context of economic outlooks would you accept the discussions you had with representatives from Hanchard Cranes and the NQ Group - - -?‑‑‑Yes.
PN644
It's quite a pertinent discussion to have, is it not, to discuss wage rates in that context?‑‑‑No wage rates under any discussion. No wage rates. I'm fully aware of all my legal obligations, statutory obligations in matters to collusion and all those type things, and there's absolutely none of that.
PN645
I'm not accusing you of collusion, Mr Partington. That's not my question. My question is whether or not in the context of talking about industry standards you spoke about the level of wage rates, amongst at least some employers?‑‑‑No, you're totally wrong. What I did - they brought the discussion to me about the - at the - they raised it with me about the 15 per cent pay increase in the industry being sought by the CFMEU. They did raise that with me.
PN646
So it is the case therefore that wage rates were discussed?‑‑‑Not rates, but the increase. The increase that the CFMEU were looking to push with all of the crane companies.
PN647
I understand?‑‑‑Not wage rates. I never discussed rates.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN648
So rather than any discussions about wage rates per se?‑‑‑Yes.
PN649
The discussions were about wage increases on those rates, is that correct?‑‑‑Correct. Well, they had been approached with a log of claims and that was the discussion, yes.
PN650
So it's quite - - -?‑‑‑From the CFMEU for 15 per cent.
PN651
It's quite the finer point, isn't it, to distinguish between wage rates and wage increases?‑‑‑Well, wage increase, a 15 per cent wage increase. I would assume their wages are different to mine. I don't know what their wages are.
PN652
Ultimately that - - -?‑‑‑I suppose I could get their EBAs and have a look, but.
PN653
Ultimately that comes down to wage rates though, doesn't it?‑‑‑Okay, if that's what you want.
PN654
And so you say that they spoke to you about the 15 per cent increase log of claims from the CFMEU?‑‑‑That they'd had served on them. That's correct.
PN655
And in the context of the discussion about the economic outlook and so forth?‑‑‑Yes.
PN656
There was discussion about whether or not that log of claims might be acceptable to some of the - - -?‑‑‑No, not at all. They were seeking a discussion about, you know, whether CICA could absolutely pick up the matter and take it forward to negotiate with the CFMEU on - in respect to this matter, in respect to their claims. And they wanted to know whether I would be party to that and I told them absolutely at the end of the day not, at the end of -because clearly there was - you know, CICA was not an organisation I believed that could come together to do that. It's never done it in the past and I didn't believe it was an appropriate vehicle, and I made it very clear to them that LCR would not be involved in any of that type of arrangements. We look after ourselves.
PN657
So just to be clear, the discussion that you had with representatives from Hanchard Cranes and the NQ Group?‑‑‑Correct.
PN658
Were about some kind of plan - whether or not it's your plan might be another question?‑‑‑Yes.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN659
About some kind of plan to standardise industry rates or - - -?‑‑‑No.
PN660
- - - increases?‑‑‑No, what they wanted to try and do was consolidate, see if there was any opportunity for consolidation of crane organisations, to appoint someone like CICA to go forward and negotiate on behalf of all the crane employers, and I said "I've never seen it done. I believe it's unsuccessful. It wouldn't happen". Had they - had - you know, I said I'd wait for them to come back with the advice.
PN661
So when you say on behalf of all of the members of CICA?‑‑‑Well, crane organisations in Brisbane. Yes, the CICA members.
PN662
Yes, okay, so crane companies who are members of CICA?‑‑‑Correct. The crane companies within the CICA group.
PN663
So the discussions about CICA negotiating on behalf of those companies?‑‑‑Yes, or appointing - - -
PN664
Is that correct, yes?‑‑‑That's correct. CICA appointing a group to do that. I - you know, I hadn't seen it done and I'm not aware - - -
PN665
Or the group appointing CICA to do that. That's what you said earlier on?‑‑‑What's that?
PN666
Well, a group of members appointing CICA as the representative?‑‑‑Correct. That's what they wanted to know, whether it had the resources to do that.
PN667
Okay, so it would be representing those employers as a whole, as a group?‑‑‑I don't know. I mean the discussion was purely and simply about - I can only comment on the room for Hanchard, NQ and myself. That's all I can comment on. I can't comment on anyone else. A lot of the discussion was on safety. A lot of the discussion was on the economy and that was - and then that was the remainder of the discussion.
PN668
No, but I'm just going back to the plan that you accept was proposed. I'm not saying accepted but I'm saying proposed at this stage, that CICA act as a representative of a group of employers vis‑ ‑vis the CFMEU?‑‑‑To what?
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN669
Negotiating with the CFMEU?‑‑‑The discussion was to put together a group of companies in CICA, crane companies, to negotiate with the CFMEU instead of individuals going to do it because very - everyone didn't know what - you know, the way forward with it, and I made it very clear.
PN670
I note that whilst you've provided two affidavits already, I accept that?‑‑‑Yes.
PN671
You've read clearly Mr Schalck's evidence?‑‑‑Sure.
PN672
Yet you haven't provided a third affidavit in response to that?‑‑‑Yes, what's the point of it? Yes, what's the point? I mean there's information here. I agree that there was a meeting held, and the team meeting, so there's nothing to say and I'm sure you were going to cross‑examine me on it. Is there any - - -
PN673
Well, you're aware that there was a statement filed by Mr Hoya?‑‑‑Yes, I am aware. Yes, absolutely.
PN674
And you're also aware that Mr Murray filed a further affidavit?‑‑‑Yes. Correct.
PN675
To respond - - -?‑‑‑In response to that. That's correct.
PN676
And yet you chose not to file any further evidence?‑‑‑Correct.
PN677
In relation to Mr Schalck's statement?‑‑‑Yes. Yes.
PN678
And that's because you don't necessarily agree with - necessarily disagree with Mr Schalck's evidence, is it not?‑‑‑In - yes, there's some things he's, you know, got wrong but in general that's right, there was a discussion between me and Albert.
PN679
Thank you Mr Partington?‑‑‑Yes, thank you.
PN680
THE SENIOR DEPUTY PRESIDENT: Re‑examination?
PN681
MS McCARTNEY: Yes, your Honour, but I wonder if I might have the indulgence of the Commission of a quick bathroom break before I commence re‑examination?
PN682
MR BORG: I'm content with her to go.
*** COLIN GEORGE PARTINGTON XXN MR BORG
PN683
THE SENIOR DEPUTY PRESIDENT: Sure. Sure. How long would you like? How long would you like?
PN684
MS McCARTNEY: Five minutes, 10 minutes.
PN685
THE SENIOR DEPUTY PRESIDENT: Sure. We're adjourned. Thank you.
SHORT ADJOURNMENT [3.56 PM]
RESUMED [4.10 PM]
THE SENIOR DEPUTY PRESIDENT: Good, thanks everyone. Re‑examination?
RE-EXAMINATION BY MS MCCARTNEY [4.10 PM]
PN687
MS McCARTNEY: Thank you. Thank you for that indulgence.
PN688
If I could take you back, Mr Partington, there was some discussion at the beginning of your evidence or your cross‑examination in relation to I think it was paragraph 19 of your witness statement and that there is - or paragraph 19 and then paragraph 20 and 21. You've talked about in paragraph 20 the significant downturn in the resources and gas?‑‑‑Yes.
PN689
And that impact, how did that downturn impact the business?‑‑‑Substantially. South East Queensland had up to about 50 per cent of its cranes under-utilised just not doing any work, and people sitting in terminals, and that's why February we made the first round of redundancies.
PN690
And over what period was that that the oil and gas and resources industry impacted?‑‑‑It had been substantially started about 18 months to two years ago, the oil and gas, and then the infrastructure started - the downturn for us in about October last year - no - yes, September, October last year is when we really saw it start to come down.
PN691
THE SENIOR DEPUTY PRESIDENT: Sorry, when you refer to infrastructure, are you referring to - - -?‑‑‑South East Queensland tunnels and - - -
PN692
To South East Queensland?‑‑‑Yes.
*** COLIN GEORGE PARTINGTON RXN MS MCCARTNEY
PN693
You're referring - - -?‑‑‑Tunnels, bridges, that sort of work. Yes.
PN694
MS McCARTNEY: So in paragraphs 20 and 21?‑‑‑Yes.
PN695
You're really talking about two different impacts that are - - -?‑‑‑Correct.
PN696
So then if I could take you then to paragraph 23?‑‑‑Yes.
PN697
There are a number of factors that you talked about, or steps that the company had been taking. Over what period are you talking about in paragraph 23? So when were those steps taken?
PN698
MR BORG: I apologise. I hate to interrupt. I'm not sure whether this question arises out of something in cross‑examination.
PN699
MS McCARTNEY: Well, it arises directly from the fact that it was put to Mr Partington that the statement says that these matters were taken in to address the oil and gas impact, and what I'm asking the witness to address is what does he actually say that those steps were taken into.
PN700
THE SENIOR DEPUTY PRESIDENT: Sorry, what does he actually say?
PN701
MS McCARTNEY: Over what period, what were those steps taken to address.
PN702
THE SENIOR DEPUTY PRESIDENT: No, I - - -
PN703
MS McCARTNEY: It was put to him - - -
PN704
THE SENIOR DEPUTY PRESIDENT: I'll hear that question, yes.
*** COLIN GEORGE PARTINGTON RXN MS MCCARTNEY
PN705
THE WITNESS: Yes, okay. The wage freeze and the reductions, pay, working, these things have been ongoing but more recently were these matters for the working days were changed, salary freezes were implemented - taken in June or July. So a lot of different - leave balances, people are being put on holidays, you know, just taking - doing - we've been to lots of companies, Telstra, all those people, getting our rents down. Every single possible cost we can find to get down. We're relocating our terminals in the South East Queensland region to condense and get our cost base down and remain competitive.
PN706
MS McCARTNEY: So what you're talking about there is the steps taken across the whole of the business?‑‑‑Correct. Correct.
PN707
And it was then put to you I believe - and I'm paraphrasing but essentially that the South East Queensland redundancies were - or the impact for the South East Queensland was not genuine or was not real. Can you tell me then about at the time of those redundancies what was occurring at the depot in South East Queensland?‑‑‑Particularly Wacol people, the cranes were parked up. People were sitting in the depots doing nothing. There was just no work for these people and, you know, we had no choice. I mean, the last thing I wanted to do was see anybody made redundant in this company but the economic - the marketplace just doesn't have the work here for us.
PN708
So when you say that the cranes were parked up, what percentage of - - -?‑‑‑About 50 per cent of them, yes, at least.
PN709
And when you say people sitting around?‑‑‑I can give you a greater understanding. The revenue stream from this district alone used to be about $30 million a year and it fell to $7 million in the year, roughly around $7 million.
PN710
THE SENIOR DEPUTY PRESIDENT: Sorry, that's the South East Queensland district?‑‑‑South East Queensland.
PN711
MS McCARTNEY: And when you say people sitting around?‑‑‑Yes.
PN712
What do you mean by that? People who you have employed?‑‑‑Yes. People - our crane operators, drivers, supervisors. People were just in the terminal. There was just no work. There was the odd bits and pieces coming in but no major works to sustain any of our utilisations.
PN713
And then I think there was discussion then about - and certainly I was confused, but around when the redundancies occurred and I think it was put to you that the only redundancies were in June?‑‑‑No.
PN714
Were there other redundancies or can you clarify that?‑‑‑Yes, in February. February this year we made redundancies then and - - -
*** COLIN GEORGE PARTINGTON RXN MS MCCARTNEY
PN715
THE SENIOR DEPUTY PRESIDENT: Mr Borg?
PN716
MS McCARTNEY: Sorry.
PN717
MR BORG: Sorry, I didn't put that to Mr Partington. That wasn't my question. His evidence is clear that there were other redundancies other than crane operators. If my friend could just - - -
PN718
MS McCARTNEY: No, sorry, I'm still talking about crane operators.
PN719
THE WITNESS: Crane operators.
PN720
MS McCARTNEY: But I think it was put to him that the only redundancies occurred were crane operators in South East Queensland in June.
PN721
THE WITNESS: No.
PN722
MS McCARTNEY: And I think the answer to that wasn't clear.
PN723
THE SENIOR DEPUTY PRESIDENT: Sorry, and what - but I'd like to know what the answer to that was then for clarification. Were there wider redundancies than crane operators in South East Queensland?‑‑‑Correct. There was - on the 20th of February there was 10 redundancies made. Seven were crane operator riggers and three of them were administration personnel associated with that terminal.
PN724
MS McCARTNEY: And then I think you were taken to paragraph 24 and it was put to you, again as I understood it, that the wage variation that you sought in November of 2014 was a response or was the response to those economic factors. Can you explain to the Commission whether that was the only response or?‑‑‑I'm just trying to put - understand that a bit. If you could show for me, sorry?
PN725
Sorry, so it was put to you, I understand - - -?‑‑‑Yes.
PN726
That paragraph 24?‑‑‑Yes.
*** COLIN GEORGE PARTINGTON RXN MS MCCARTNEY
PN727
Followed on as the immediate or the only response or the urgent response that was needed to the economic factors?‑‑‑No, that was one part of it. We've had to go in Central Queensland - it's a massive downturn, a storm I've never seen in my life. We had to cut accommodation costs, all kinds of other factors inside the business. Not only ask people to - operators there to commit to a wage restraint.
PN728
And that approval was provided?‑‑‑Correct.
PN729
In November - - -?‑‑‑Yes.
PN730
- - - 2014?‑‑‑That's right.
PN731
And why was it necessary then to continue with those measures?‑‑‑Because the market continues to deteriorate and customers, the coal industry, gas industry clients are pushing us so hard for cost reductions, and that's what they need and we have to remain competitive to - for long term sustainability.
PN732
Can I move on then to there was some extensive discussion around the process that was involved in?‑‑‑Yes.
PN733
Has any person said to you that they were concerned about the process or raised any issues with you in relation to the process?‑‑‑No. I consistently go round to all of the terminals and I try to be in every terminal every two to three months, and I have not had one person raise any issues with me nor sent any emails or through their managers contacted me and advised me of any problems, and if I did I'd deal with it immediately.
PN734
And can I take you then to the vote. There was some suggestion that - and I think we looked at CGP10?‑‑‑Yes.
PN735
And there was some suggestion that not all of the people would have received the email?‑‑‑Yes.
PN736
Did any person say to you that they hadn't received the email?‑‑‑No. Once again I have received - no one has come to me, raised an issue in any way.
PN737
And did all of the employees vote on the agreement?‑‑‑Yes.
PN738
Did any person not show up to the - - -?‑‑‑No, not that I'm aware of.
*** COLIN GEORGE PARTINGTON RXN MS MCCARTNEY
PN739
And if I can just take you to that CGP10, there's a comment that says, "Delivered and read". Do you understand what that means?‑‑‑Yes, delivered and read.
PN740
And can you explain? So is that a read receipt to show - - -?‑‑‑Correct, read receipt.
PN741
- - - that they read your email?‑‑‑Yes, on an email. That's correct.
PN742
And did anyone suggest to you that people hadn't read it or there wasn't - - -?‑‑‑No, not in any way.
PN743
If I could then take you back - I don't want to belabour the point because I think it was belaboured enough but there was some suggestion to you about the chronology of your statement?‑‑‑Sure.
PN744
If I take you back to the beginning of your statement?‑‑‑Yes.
PN745
And then there are some headings in there?‑‑‑Yes.
PN746
If I take you to page 2?‑‑‑Yes.
PN747
Just in general terms what are you talking about in - - -?‑‑‑The LCR Group is the overall group of companies and - or the umbrella.
PN748
Yes, and then enterprise agreement?‑‑‑The enterprise agreement is for the southern region for South East Queensland, South West Queensland.
PN749
And then you talk about the mobile crane industry on page 3?‑‑‑Correct, yes.
PN750
And then the process that you're talking about on page 4 and five, is that the vote that you're seeking the application for?‑‑‑Correct.
PN751
And then on page 6 there's a heading, "Statement of Andrew Sutherland"?‑‑‑Page 6. Yes, got you.
PN752
So the matters after the statement of Andrew Sutherland?‑‑‑Yes.
*** COLIN GEORGE PARTINGTON RXN MS MCCARTNEY
PN753
Can you tell me what they relate to?‑‑‑Yes, well they relate to the affidavit that I was responding to that Andrew Sutherland made.
PN754
So rather than a chronology, what you've done is explain the matters in response to - - -?‑‑‑Yes.
PN755
- - - the material that has been put before you?‑‑‑Yes.
PN756
And when you talk about redundancies back I should say as early as paragraph 23 I believe?‑‑‑Yes.
PN757
Those redundancies there, do they include the redundancies that occurred in June?‑‑‑Yes.
PN758
And then in the redundancies - so you've spoken then about the other measures taken to reduce the impact of the downturn in the industry and you've spoken about the redundancies that were addressed in Mr Sutherland's statement?‑‑‑Yes.
PN759
You talk about 23 redundancies I think it was - sorry, I've just lost the paragraph number but I think it was - sorry, paragraph 54?‑‑‑Yes.
PN760
And it was put to you that in saying that 23 positions were made redundant that you were somehow hiding how many of those were mobile crane operators. Do you know how many of those were mobile crane operators?‑‑‑Yes, I can. I've got a note that I made for myself and it was clearly of that there was four administrative - eight operators and four administrative staff, if I've got the right date. Yes, four administration staff.
PN761
And the rest were just mobile crane operators?‑‑‑Yes, correct. So that's another four. There was three initially in February and another four made in June.
PN762
I've no further questions. Thank you, your Honour.
PN763
THE SENIOR DEPUTY PRESIDENT: Good. Thank you. The witness is excused.
THE WITNESS: Thank you.
*** COLIN GEORGE PARTINGTON RXN MS MCCARTNEY
<THE WITNESS WITHDREW [4.25 PM]
PN765
THE SENIOR DEPUTY PRESIDENT: So where does this leave us with the evidentiary case then?
PN766
MS McCARTNEY: That's the end of my evidentiary case, your Honour.
PN767
THE SENIOR DEPUTY PRESIDENT: But we still are left with - who is outstanding for the CFMEU then Mr Borg? We have Mr Schalck?
PN768
MR BORG: Yes, your Honour.
PN769
THE SENIOR DEPUTY PRESIDENT: Then?
PN770
MR BORG: There's of course Mr Sutherland, Mr Desmond, Mr Schalck and Mr Hoya. That's not the order that I propose. I'm open to any suggestion your Honour might have with regard to the time, noting that it's coming up to half past - - -
PN771
THE SENIOR DEPUTY PRESIDENT: Yes, I think we've lost the time for today. This is going to be another date we're going to have to find, it would appear. Now the appearance of Mr Schalck, that is the issue in some contention, is it? Is he to appear personally; is he requested to appear personally?
PN772
MS McCARTNEY: I have no issue with his evidence by telephone, as I had expressed previously. I do require him for cross‑examination if his statement is to be relied upon.
PN773
THE SENIOR DEPUTY PRESIDENT: Is it only today that he wasn't available until late in the afternoon, or is that a daily obligation? You don't know?
PN774
MR BORG: I'm not sure it's a daily obligation. At the same time, your Honour, I do understand that it was a meeting with an important client, so he says.
PN775
THE SENIOR DEPUTY PRESIDENT: All right. Well, look, what I'll do, I'll have my associate send you some dates and you can see whether we can tally something up.
*** COLIN GEORGE PARTINGTON RXN MS MCCARTNEY
PN776
MS McCARTNEY: Your Honour, it might just be useful - is it worth discussing the filing of written submissions afterwards? Are you intending to hear oral submissions? We might be able to at least truncate slightly the process by simply filing submissions after the end of the close of evidence. I haven't discussed that with my friend but we would be amenable to that if it - - -
PN777
THE SENIOR DEPUTY PRESIDENT: To a written closing submission?
PN778
MS McCARTNEY: Yes.
PN779
THE SENIOR DEPUTY PRESIDENT: I don't know.
PN780
MR BORG: I would have an issue with that, and it's only on this basis, your Honour. If the objective is to truncate the matter I think it might be better if we're to give our submissions at the hearing date rather than channel in some - - -
PN781
THE SENIOR DEPUTY PRESIDENT: True. I think the idea is it would truncate the day. It wouldn't truncate the process as a whole.
PN782
MR BORG: Yes, that's my point precisely, your Honour. I understand my friend might have different requirements from myself but the problem for me is that I've already lodged submissions, an outline of submissions, in relation to this. It only falls to me at this stage to review the evidence and add any comments that I might make. I think on my feet I'd be quicker at doing that rather than having to go back and to rewrite submissions. I'm not strictly opposed to what my friend proposes but those are the issues that I see with written submissions rather than making relatively brief oral submissions.
PN783
MS McCARTNEY: I would say that there has been significant matters been put to the witnesses of which the only evidence that we have to date has been filed hearsay statements. There's not actually any evidence before the Commission on those matters and that I think it will come down to one of credibility between those bits of evidence, that the Commission would benefit from having those matters considered on transcript and full submissions on them. As my friend has - we've now had two substantial delays as a result of the availability of witnesses, and I accept that we ended up moving on today. He has had the ability to review the transcripts of my witnesses' evidence but I won't have the same opportunity before writing my submissions.
PN784
THE SENIOR DEPUTY PRESIDENT: I'll do it this way. I'll allow closing submissions to be in writing. Sorry, now who are we taking to be the applicant in this matter? You're the - - -
PN785
MS McCARTNEY: I think we are the applicant.
PN786
THE SENIOR DEPUTY PRESIDENT: You're the objector so you'd go first. Yes so we don't - okay, I was trying to work out whether I could take - if you were willing I could do a reversal. That is I could allow Mr Borg to go first and you could go second, and Mr Borg can then read yours and if he wants to reply he can. That's the only short way around it. But from the look on your face I don't think it's going to be the way to proceed.
PN787
MR BORG: No, I think we'd probably fall into error on that basis.
PN788
THE SENIOR DEPUTY PRESIDENT: I think there is a deal of material. It appears as though there will be another deal of cross‑examination in front of us as well. It's probably best to give the parties an opportunity to reflect on transcript, but I'm not going to give you a long period of time. I'll give you 72 hours to turnaround and to provide concise closing submissions. I don't expect for you to replicate the transcript. It would be a case of just pointing to the key issues, and it allows you an opportunity to coalesce your thoughts and a bit more detail, but without taking a particularly long period of time.
PN789
MR BORG: Sorry, just for clarity on that point. You say 72 hours?
PN790
THE SENIOR DEPUTY PRESIDENT: After the close of the next day's hearing.
PN791
MR BORG: After the close of the evidence, okay.
PN792
THE SENIOR DEPUTY PRESIDENT: So the point is for concise written closing submissions but not as some people do, a trawl of the exercise to quote everything from the transcript.
PN793
MR BORG: Yes, I understand what you're saying, your Honour. I think we do confront risks if we're to on the other hand allocate time to make written submissions but then limit it to only 72 hours. I'm not too sure what my own personal schedule will look like by that time, I've got to say.
PN794
THE SENIOR DEPUTY PRESIDENT: Okay.
PN795
MR BORG: It might be favourable but it might not be.
PN796
THE SENIOR DEPUTY PRESIDENT: No, no, look, let's just leave some flexibility in that. Let's just see where we get to on the day and you can tell me what your circumstances are on the day and we will then adapt the timeline to what everyone's circumstances are. I just don't want to allow for a lengthy period that will just, you know, cause the matter to become even more elastic than it has been.
PN797
MR BORG: Of course.
PN798
MS McCARTNEY: Thank you, your Honour. Can I ask one other indulgence as you're looking at dates? I have annual leave where I'm going to be in New Zealand between the 14th and 14 days after that, 28 September. If perhaps we could - before or after those dates would be much appreciated.
PN799
MR BORG: I can try and take my leave at that time too. It sounds appealing, I've got to say. So I'm amenable to what my friend says about that.
PN800
THE SENIOR DEPUTY PRESIDENT: Did we get those dates in? Did we get those dates, Laura, that we're not available?
PN801
Okay, so we'll build something around that and give you some options and we'll be in contact by email.
PN802
MS McCARTNEY: Thank you, your Honour.
PN803
THE SENIOR DEPUTY PRESIDENT: If you have a problem with the dates, let us know, we'll try and find something. Okay, thanks very much everyone. We're adjourned.
ADJOURNED TO A DATE TO BE FIXED [4.32 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
DARREN WAYNE MURRAY, AFFIRMED..................................................... PN45
EXAMINATION-IN-CHIEF BY MS MCCARTNEY....................................... PN45
EXHIBIT #LCR3 (IN ADDITION) AFFIDAVIT OF DARREN MURRAY DATED 17/08/2015................................................................................................................................... PN58
CROSS-EXAMINATION BY MR BORG........................................................... PN60
THE WITNESS WITHDREW............................................................................ PN102
COLIN GEORGE PARTINGTON, SWORN................................................... PN105
EXAMINATION-IN-CHIEF BY MS MCCARTNEY..................................... PN105
EXHIBIT #LCR5 TWO AFFIDAVITS OF COLIN PARTINGTON DATED 22/07/2015 AND 30/07/2015............................................................................................................... PN118
CROSS-EXAMINATION BY MR BORG......................................................... PN125
RE-EXAMINATION BY MS MCCARTNEY.................................................. PN686
THE WITNESS WITHDREW............................................................................ PN764
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URL: http://www.austlii.edu.au/au/other/FWCTrans/2015/527.html