AG2017/487, Transcript of Proceedings [2017] FWCTrans 400 (21 September 2017)

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PN197

THE COMMISSIONER: There is no change in appearances so I'm not going to ask you about that.

PN198

MS KELLY: There's no change in appearances.

PN199

THE COMMISSIONER: And there's some documentation that I have just been handed this morning.

PN200

MS KELLY: Yes. Thank you, Commissioner. Since we were last here you will have hopefully received the witness statement of Rebecca Lee filed by the respondent.

PN201

THE COMMISSIONER: I did.

PN202

MS KELLY: And that completes the witness statement that are to be relied on along with the earlier filed statement of Barry McGuinness.

PN203

THE COMMISSIONER: Correct.

PN204

MS KELLY: What that has allowed us to do, Commissioner, is substantially narrow the factual issues in dispute and can I indicate that I propose to proceed this way. Rather than doing an extensive opening I will simply seek to outline where the dispute is.

PN205

THE COMMISSIONER: Right.

PN206

MS KELLY: My learned friend doesn't need to open unless you would like to hear from him. We propose to simply deal with the two witnesses who will both take a relatively short period of time, and then to simply come to submissions as quickly as possible, if that's a convenient course to the Tribunal.

PN207

THE COMMISSIONER: Right.

PN208

MS KELLY: What I have prepared for your assistance, Commissioner, is a table that, in short form, sets out where the dispute is in the matter and it's effectively a tabular representation of what you will see in a statement of agreed facts.

PN209

THE COMMISSIONER: Thank you.

PN210

MS KELLY: And what you will see on the left-hand side, Commissioner, is the fuller types of shift that are in issue, public holidays worked on a week day, or week day public holidays, weekend work and then week day morning and afternoon shifts and week day nightshifts. You will then see the way the parties each say the payment was applied by GEO Care, and then the way that the payment is currently being applied by Correct Care.

PN211

THE COMMISSIONER: And is the last column agreed?

PN212

MS KELLY: It is effectively agreed as a demurrer, if I can put it that way. We have members who say to my client, we aren't getting these payments.

PN213

THE COMMISSIONER: Yes.

PN214

MS KELLY: But what I'll ask Ms Lee in cross-examination is, well if they're not getting them and you say they ought to be paid, will that be remedied. And if the answer to that is yes, then the question of what's being paid is agreed. Where the dispute arises is this. It is essentially whether Correct Care is making above agreement payments as a matter of its discretion or whether it is compelled to do so by the agreement, and if we can't answer that question, is there an ambiguity in the agreement, that then needs to be remedied. My client says the agreement construed properly requires the payments to be made. Correct Care says, no, it doesn't, on our construction the payments don't have to be made but as a matter of goodwill we are making them. They're the two competing constructions that we say give rise to the ambiguity and if you were satisfied that the ambiguity exists we would then say there's a need to vary the agreement to deal with that.

PN215

Now to indicate more specifically where the dispute arises, commencing with week day public holidays, my client says that under GEO Care there was a consistent payment of 50 per cent for all hours worked on a week day public holiday regardless of when the hours were worked. Correct Care says that's not true. What happened under GEO care was a variable method of payment. Some people got 50 per cent, some got 15, some got nothing at all, so it was varied. That is the only factual dispute before the Tribunal. We have narrowed it to that one issue which arises in the first line. On the right-hand side you will see the way it is now being paid, which is that the 50 per cent for a week day public holiday is paid for shifts commencing after 12 pm and finishing after 7 pm, and for hours worked during the night regardless of whether the shift finishes before

PN216

7 am or not, but no other payment for a week day public holiday. Then if we come to weekend work we are all agreed that GEO Care paid 50 per cent on all hours worked on a weekend from midnight Friday to midnight Sunday, and they still do so. Correct Care says that is one of the above agreements benefits we provide. We're not compelled to do so. My client says, yes, you are.

PN217

Week days, this is the third substantive row, morning and afternoon shifts, no shift loading paid for a.m. shifts, 15 per cent loading paid after 7 pm. We are all agreed that's how it was paid, that's how it is continued to be paid and there's no dispute about that. Both sides are in agreement that that's correct. Week day nightshifts, GEO Care paid the loading for the whole of the shift regardless of whether it finished at 7 am or thereafter. It's agreed that that's how it was paid. There has been a change and now we see that the shift loading is paid only on that part of the shift that falls between 7 pm and 7 am, rather than the whole of the shift being paid. And that's again a question about whether or not that is an above agreement entitlement or whether it's paid because the agreement compels it.

PN218

Hopefully, Commissioner, what that identifies, and I appreciate it's slightly out of context because I haven't taken you to what the actual clauses say, but that represents the total of the dispute between us. As I indicated there is that one factual dispute about what was paid by GEO care on week day public holidays. That will be dealt with by the evidence this morning. And then it becomes a question of does this situation arise because of ambiguity, and if so, what course ought the Commission take.

PN219

Unless I can assist with anything further, at this stage, Commissioner, I propose simply to go straight to evidence and then into submissions thereafter.

PN220

THE COMMISSIONER: Mr Harrington.

PN221

MR HARRINGTON: Commissioner, I understand – just briefly, my learned friend is generally accurate in what she's set out in her application today and this document that is before you and the factual landscape is somewhat different to the last time we were here. We came to this Commission facing an allegation that we did not pay a 50 per cent shift loading on weekends. That was the allegation. We produced evidence about that. That evidence is accepted. We do pay that. As my learned friend pointed out, the question is are we compelled by the agreement to pay that. And they're all very interesting questions but if I can bring the matter back to where it should be under the Act, in a sense this hearing today will of course hinge upon the evidence that's educed, not that there's a lot of contest. But it's essentially bifurcated in nature, and that is the first task before you and you know this is – because we've discussed it last time, look at the text, do you make a determination that there's an ambiguity in the text of the agreement, and if you do, that jurisdictional fact is then in play and you move to the analysis of what should you do as a result of that. How do you then, as the Commission, rule upon that ambiguity and the discretion you have to in fact delete words, to add some words to give clarity to what the parties intended, and that's the critical – the second part of the test or second question, what the parties intended arising out of the negotiation of the relevant clauses.

PN222

So as I said, just to bring it back to the jurisdictional focus, the first question is going to have to be, and my learned friend must through educing her evidence, establish ambiguity on the face of the document, the words of the text, and we've addressed that in our written submissions. And the second question if you find, if you are satisfied that that ambiguity exists, you will then move towards a consideration of what to do. And may I also, to the extent I have to tender it as a matter of formality, but (indistinct) my learned friend to hand it up, you made a direction or order for us and perhaps the Commission to be provided with the proposed variations and we received a one page document. Did you receive that?

PN223

THE COMMISSIONER: I did.

PN224

MR HARRINGTON: I don't know if my learned friend wants that marked or – it's going to feature today at some point, obviously.

PN225

THE COMMISSIONER: Yes.

PN226

MR HARRINGTON: So just to clarify that you do have that document.

PN227

THE COMMISSIONER: I do.

PN228

MR HARRINGTON: Thank you. And also consistent with your directions, I my client filed a witness statement of Ms Rebecca Christine Lee and I hope you've received that.

PN229

THE COMMISSIONER: Yes.

PN230

MR HARRINGTON: And there are a number of attachments - - -

PN231

THE COMMISSIONER: Correct.

PN232

MR HARRINGTON: And I will tender that in due course.

PN233

THE COMMISSIONER: Correct, yes.

PN234

MR HARRINGTON: Thank you.

PN235

THE COMMISSIONER: Thank you, Mr Harrington. Before we get into the substantive portion of the hearing today may I do some marking of documents that have been handed up this morning and have been filed, leaving aside Mr McGuiness and Ms Lee's witness statements because they will come through those respective persons, I assume. Now I don't know whether to do it in – yes, I'll do it in date or just brain – as far as I'm aware I have – because I don't think we've actually marked anything at all, have we?

PN236

MS KELLY: I don't believe so, Commissioner.

PN237

THE COMMISSIONER: Okay. So there are the ANMF submissions that are dated 3 July 2017, and Mr Harrington, may I work on the exception, so you don't have to keep on jumping up and down, and the same applies to Ms Kelly because it is Monday morning – if you've got an objection, jump. If not, I'll assume that it's okay to mark all of these documents.

PN238

MR HARRINGTON: Then do you have before you a copy of a folder that we provided to you last time?

PN239

THE COMMISSIONER: Yes. Yes.

PN240

MR HARRINGTON: Because I hope that everything except Ms Lee's statement should be in that folder.

PN241

THE COMMISSIONER: It is, I think.

PN242

MR HARRINGTON: Yes.

PN243

THE COMMISSIONER: Yes, I hadn't thought of doing it that way.

PN244

MR HARRINGTON: No, it's just that I'm just – because I will work off the folder.

PN245

THE COMMISSIONER: You're going to work off - - -

PN246

MR HARRINGTON: Everything going to plan.

PN247

THE COMMISSIONER: Okay.

PN248

MR HARRINGTON: And I know you've got it and I'm certain that we handed it over to my learned friend last time we were here. But it didn't have Ms Lee's statement and it didn't have the proposed variation.

PN249

THE COMMISSIONER: Right.

PN250

MR HARRINGTON: That's all.

PN251

THE COMMISSIONER: Okay. Because we got – obviously we got separate documents and it's easier to take this home and test the folder.

PN252

MR HARRINGTON: I'm in your hands. I'm in your hands but I did jump up now just to say that is in existence, that folder, and it does contain most of the documents.

PN253

THE COMMISSIONER: It does and I have actually – but having read everything I then looked at it and thought, I've read all that.

PN254

MS KELLY: And I'll just say, Commissioner, we don't have the folder with us. I don't doubt, Mr Harrington, that it was provided to us but I've changed instructor in the middle and the existence of the folder was only reminded to me this morning, so where it is, I can't say. But we'll need separate identification.

PN255

THE COMMISSIONER: Okay. Because I've got everything that's in the folder separately would you like to borrow my folder? Well, actually, you can keep my folder.

PN256

MS KELLY: That would be very useful to me, Commissioner, I'd be very grateful. I should add, Commissioner, it's entirely possible when it went to me, I wasn't – it occurred to me it might have sounded like I was blaming my instructor. It's entirely possible it was given to me and I am responsible for not having brought it.

PN257

THE COMMISSIONER: No, I - - -

PN258

MS KELLY: In any case, having your copy will greatly assist me.

PN259

THE COMMISSIONER: All right. Now applicants outline of submissions dated 3 July 2017 will be exhibit A1. Then the proposed variations which were forwarded on 2 August 2017 will be exhibit A2.

EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS DATED 03/07/2017

EXHIBIT #A2 PROPOSED VARIATIONS FORWARDED ON 02/08/2017

PN260

Now who would like – the combined statement of agreed facts and facts in dispute dated 11 September 2017, is that an applicant's document or respondent's?

PN261

MR HARRINGTON: It's combined.

PN262

THE COMMISSIONER: It's combined?

PN263

MS KELLY: It's a joint document so - - -

PN264

MR HARRINGTON: Yes.

PN265

THE COMMISSIONER: All right. So I shall mark it exhibit A3 and R1. And the table from this morning will be exhibit A4.

EXHIBIT #A3 COMBINED STATEMENT OF AGREED FACTS AND FACTS IN DISPUTE

EXHIBIT #R1 COMBINED STATEMENT OF AGREED FACTS AND FACTS IN DISPUTE

EXHIBIT #A4 TABLE

PN266

Now then I've got Mr Megennis' statement and various attachments, and to me that's – I'm just double checking – that's all of the material that's been filed by the applicant, is that correct?

PN267

MS KELLY: That's correct, Commissioner.

PN268

THE COMMISSIONER: Brilliant. While I'm doing this, why don't I do the respondent's, if that's okay with everybody. I've got the respondent's outline of submissions dated 17 July 2017, which will be exhibit R2, and that's it, except for Ms Lee's statement. Is that correct, Mr Harrington?

PN269

MR HARRINGTON: I think that's right, yes.

PN270

THE COMMISSIONER: Good. Okay, excellent. Thank you.

EXHIBIT #R2 RESPONDENT'S OUTLINE OF SUBMISSIONS

PN271

So Ms Kelly, I think when you are ready, I think we're all good, thank you.

PN272

MS KELLY: Thank you, Commissioner. We'll proceed to call Barry Megennis, please.

<BARRY MEGENNIS, SWORN [10.30 AM]

EXAMINATION-IN-CHIEF BY MS KELLY [10.30 AM]

PN273

THE COMMISSIONER: Please have a seat, Mr Megennis.

PN274

MS KELLY: Mr Megennis, can you please state your name, your occupation and your business address for the record?‑‑‑Barry Megennis, I'm an industrial officer with the Australian Nursing & Midwifery Federation at 535 Elizabeth Street, Melbourne.

PN275

Mr Megennis, you've made a statement in this proceeding, is that correct?‑‑‑Yes, that's correct.

PN276

Do you have a copy of that with you?‑‑‑No, I don't. Thank you.

PN277

Ms Megennis, is that the statement that you made?‑‑‑Yes, it is.

PN278

Can you confirm it runs to 18 paragraphs and is dated 28 July 2017?‑‑‑Yes, that's correct.

PN279

Can you confirm that it has four attachments?‑‑‑Yes. Yes.

PN280

Mr Megennis, are the contents of that statement true and correct, to the best of your knowledge and belief?‑‑‑Yes, they are.

PN281

That's the evidence-in-chief for this witness, Commissioner.

PN282

THE COMMISSIONER: How about I mark it as exhibit A5, which is Mr Megennis' witness statement dated 28 July 2017, together with four attachments.

*** BARRY MEGENNIS XN MS KELLY

PN283

MS KELLY: Thank you, Commissioner.

EXHIBIT #A5 STATEMENT OF BARRY MEGENNIS DATED 28/07/2017 WITH FOUR ATTACHMENTS

PN284

MR HARRINGTON: And Commissioner, just as you're doing that I just want to formally note my points of objection which I foreshadowed last time. No, no, I'm not stopping you from that task because it will be marked but it's appropriate that at this time I sound or make the submission as to those objections. And it's fairly straightforward and I think you agreed with me last time the nature of the objection, and there are two points of objection in relation to exhibits BM3 and BM4 – BM3 is what I'll describe as surrounding circumstances evidence, it's the negotiation of the 2013 agreement; BM4 is evidence as to what occurred after the parties had entered into the 2013 agreement, i.e., subsequent events. And the points of objection are taken in respect of the question of construction, the question of whether there's an ambiguity. My submission is that these two exhibits in the first part of the bifurcated process today, BM3 and BM4 are not admissible on the question of what do the relevant clauses mean and is there an ambiguity. This is clause 23 and clause 24.1. That is because we have both High Court authority and Full Bench authority that assists us on that. The Berri decision, which is quite well known now, with its – I think it's 15 principles that it's set out - it's in the folder we've provided to you at tab 15 and if you go to the Berri decision at paragraph 114, there are 15 principles that are set out there and the opening words of paragraph 114 are:

PN285

The principles relevant to the task of construing a single enterprise agreement may be summarised as follows", and it goes on. I particularly refer to and rely upon page 9 and 10 of those principles which is, "Regard may be had to evidence of surrounding circumstances and that this is the negotiation meetings. To assist in determining whether an ambiguity exists, no. 9, if the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement; 10) if the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of surrounding circumstances will be admissible to aid the interpretation.

PN286

There is a more recent decision even than Berri because Berri, I think, was handed down a few months ago, and that is also in our folder at tab 16, and that is Energy Australia Yallourn, another Full Bench decision which applied and approved Berri, and at paragraph 31 made reference to Golden Cockerel and Berri and said the Full Bench considered the question of context in relation to the interpretation of enterprise agreement. There the Full Bench in Energy Yallourn Australia went on to say at paragraph 31, and referred to a High Court decision and I quote:

*** BARRY MEGENNIS XN MS KELLY

PN287

This is compatible with the decision of French Chief Justice Nettle and Gordon Justices in Mount Bruce Mining. And Wright Prospecting is another where their Honours state, "Provisions of a contract are determined objectively by reference to text context (the entire text of the contract), as well as any contract, document or statutory provision referred to in the text or the contract and purpose."

PN288

The Full Bench then said:

PN289

It would appear to us that the context of (indistinct) will usually be of a textural nature and that context and surrounding circumstances are distinct concepts. We do not read the passages from Poland v Esk(?) because they - as merging them.

PN290

So there is two very recent decisions giving you some guidance on your task. Now let me very clear in my submission. BM3 and BM4 may have a significance if you determine that there is an ambiguity. You can then have regard to, well, what was happening in the negotiation meeting, and you might – but you've got to be a lot more cautious with subsequent conduct with BM4 material. Also, not speaking against the submission I'm making on admissibility but if you find the ambiguity you may wish to have regard to BM3 or BM4 on the question of what should I do? Should I vary? So again I want to be clear about that but I don't want to leave you into error in saying you can't have any regard to BM3 and BM4 in any circumstances. It's just on the first question, the danger is, you read through BM3 and BM4 and say, well, that's all very interesting, or it's very unclear what the words mean because I now know about certain discussions, and the question there, of course, is the High Court and the Full Bench have said to us, no, no, start with the documents, start with the words of the clause, and make the determination objectively before you hear about what parties were saying thinking in the negotiation meeting or what they did subsequently. So that's the formal objection I take to those two exhibits to Mr Megennis' statement.

PN291

THE COMMISSIONER: Mr Harrington, I don't actually have any issue with the legal principles that obviously you've outlined. I don't know at this point in time because I haven't heard all of the parties', you know, submissions, witness evidence, all that stuff. I haven't got a concluded view about the first step. And so therefore I don't know whether I need to get to the second step.

PN292

MR HARRINGTON: Yes.

PN293

THE COMMISSIONER: And so therefore, for me I need BM3 and BM4 to simply being practical. In the event that my thinking post the hearing takes me to the second task, BM3 and BM4 are relevant.

PN294

MR HARRINGTON: Yes.

*** BARRY MEGENNIS XN MS KELLY

PN295

THE COMMISSIONER: I don't cavil at all with the submission that in terms of the first part of the Commission's job they aren't relevant. But I'm not inclined to take them out simply because I might need them. But I do not know.

PN296

MR HARRINGTON: Perhaps the objection - - -

PN297

THE COMMISSIONER: Does that make sense?

PN298

MR HARRINGTON: This sort of objection could be dealt with in closing because once you've heard the evidence and you're hearing submissions – but in terms of orthodoxy it's always appropriate to take an objection when the evidence is first educed.

PN299

THE COMMISSIONER: I understand.

PN300

MR HARRINGTON: So you can't be heard later to be saying, oh, we don't want that in now.

PN301

THE COMMISSIONER: Of course. Of course.

PN302

MR HARRINGTON: It's already gone in.

PN303

THE COMMISSIONER: Yes.

PN304

MR HARRINGTON: So I guess it's a question of, with this evidence for what purpose is it going into the record? And the submission I have made is, well, at the moment it shouldn't be going onto or into the record on the first question, but you might ultimately decide it is relevant to the second question and that you can call upon it at that point.

PN305

THE COMMISSIONER: Yes, and - - -

PN306

MR HARRINGTON: And so I just want to be very clear at the outset.

PN307

THE COMMISSIONER: Yes, that that's the issue for the company.

*** BARRY MEGENNIS XN MS KELLY

PN308

MR HARRINGTON: That's the position that we take.

PN309

THE COMMISSIONER: Okay.

PN310

MR HARRINGTON: So in that sense I probably don't ask you to strike or do anything else.

PN311

THE COMMISSIONER: No.

PN312

MR HARRINGTON: It's simply just noted as an objection.

PN313

THE COMMISSIONER: Yes, got it.

PN314

MS KELLY: For the record, at this point, Commissioner, because you and my learned friend appear to be ad idem about this, I need to indicate we don't agree. Woodside tells us, the High Court in Woodside v Verve Energy, tells us that we may have regard to the surrounding circumstances and extrinsic materials for the purpose of determining whether ambiguity exists, and that's been accepted and applied in this Commission very recently. So there is actually a dispute about what the current state of the law is. BM3 is relied on for that purpose. BM4 was simply relied on to demonstrate there was a dispute. It's not relied on for any other purpose.

PN315

THE COMMISSIONER: Yes. I think I know that bit.

PN316

MS KELLY: Thank you, Commissioner. So I am content to deal with it in closing but because there seems to be some agreement as between the Bench and my learned friend I thought it appropriate now to indicate that we have a different view about the law.

PN317

THE COMMISSIONER: Thank you, and so I would appreciate obviously, as you would be doing in closing is more elaboration of the different view.

PN318

MS KELLY: Will do.

PN319

THE COMMISSIONER: Thank you.

PN320

MS KELLY: Thanks, Commissioner. Mr Harrington?

*** BARRY MEGENNIS XN MS KELLY

CROSS-EXAMINATION BY MR HARRINGTON [10.40 AM]

PN321

MR HARRINGTON: Thank you. Now Mr Megennis, you have been employed by the ANMF for 15 years. Do I take it you were an industrial officer for that entire period?‑‑‑Yes.

PN322

All right. And how long is it that you have been involved in representing the interests of members at GEO Care/Correct Care?‑‑‑Well, probably from, as far as EBA negotiations are concerned, probably from about late 2009, I think it was.

PN323

Late two thousand and?‑‑‑Nine.

PN324

Nine, so does that mean you were involved in the 2009 negotiations of the 2009 agreement?‑‑‑At the last – tail end of that negotiations. And given your experience for 15 years now, which takes us back to probably around 2002 or thereabouts, as an industrial officer you've seen a lot of change in the industrial landscape under the Fair Work Act and the like, haven't you?‑‑‑Yes.

PN325

For example, you've seen the introduction of the modern award system and in this case, the 2010 Nurses' Award?‑‑‑Yes.

PN326

And it's now a good seven years on, more or less, from that time, so is it fair to say that you, from 2010 onwards, developed a working knowledge of the modern award?‑‑‑Yes.

PN327

And that when you were in a negotiation for the 2013 agreement, the most recent agreement, that you represented the interests of your members with the knowledge of that 2010 Nurses' Award?‑‑‑To the extent that it would have relied upon at any stage during the negotiations, yes.

PN328

Yes, and do you say that you have a pretty good or fairly good working knowledge of that award?‑‑‑Yes, a reasonably good knowledge. I should qualify it on the basis of saying that we, as far as EBA negotiations are concerned generally, have tended to rely upon the pre-reform award as the basis for the conditions that we seek to have included in it indicates.

PN329

Yes, but the context of that reliance is of course the fact that there is a 2010 Modern Award that - - -?‑‑‑Yes.

PN330

In one sense, trumps all, subject to entering agreements, doesn't it?‑‑‑Yes.

*** BARRY MEGENNIS XXN MR HARRINGTON

PN331

Back in 2009, you then had a working knowledge of, I'm going to refer to it as clause 23.1, back then because I think it became clause 24 and I think your statement effectively deals with that, is that right?‑‑‑Yes but - - -

PN332

Yes, and you go to your statement if you want because I think – I've got it right in front of me and I think it's the first exhibit where you – BM1, you attach an underlined version – or maybe it's not an underlined version but it's the 2009 agreement, is the first exhibit to your statement?‑‑‑Yes.

PN333

And if we go to clause 23.1 you'll see it says certain things – in fact, could you go to the statement and just so that we're all abundantly clear on this, you also then attached BM2, the 2013 agreement, which is the underlined and struck through version, I think. Is that a fair way of describing it?‑‑‑Yes. You'll have to excuse me. The document I've got is not tabbed so I'm just - - -

PN334

No, that's all right?‑‑‑Yes. Which document do you want to go to?

PN335

What I was trying to do was just get you to look at the 2009 and a clean version of the 2013, which we might hand up our folder to you, the spare copy that we've got of the folder here, and I'm just trying to recall if we've got a copy of the – we've got a copy of your statement in there, that's not a problem but maybe we don't have a completely clean version of the – okay, so tab 10, is that – no, tab 7 – I'm just finding it for you, Mr Megennis. Right, if I hand you this folder so it can be up there, it's got some highlighting on it but ignore the highlighting, and that's a copy of your statement that's in front of you there. I don't know if that's any easier for you because it's in a folder, to flick through it - - -?‑‑‑Which tab am I going to?

PN336

It was tab 8 – sorry, 7. Seven, sorry. Yes, that's where I'm – so what I'm going to try and ask you to do is on one hand, look at the 2009 agreement, have that in front of you, and then also take you to tab 8, which is what I'll call a clean copy of the 2013 agreement. So you can see what was in the 2009, what's now in the 2013 – and I don't know how you're placed to do that, Commissioner, because you perhaps don't have - - -

PN337

THE COMMISSIONER: I have an unclean copy of the - - -

PN338

MR HARRINGTON: Yes, all right, well, if you're confused please let me know.

PN339

THE COMMISSIONER: I will.

*** BARRY MEGENNIS XXN MR HARRINGTON

PN340

MR HARRINGTON: So do you have the 2009? I think we were talking about that, clause 23?‑‑‑This is the clean version?

PN341

Well, the clean version was actually in your witness statement at BM1?‑‑‑Twenty-three, 23 - - -

PN342

2009, shift work, 23.1?‑‑‑Yes.

PN343

So you've got that. You're looking in the folder version, that's fine. And with your other hand, if you could go to tab 8 of the folder and then go to 24 of that agreement, that's – I'm calling that the clean copy of the 2013 agreement?‑‑‑Twenty-four point?

PN344

24.1?‑‑‑Yes.

PN345

If you'd just confirm that 23.1 in 2009 became 24.1 in 2013?‑‑‑Yes.

PN346

But there were some other changes to the 2009 clause 23 which dealt with shift work, wasn't there, changes between the two agreements. There were some deletions, I think, and you've set that out?‑‑‑Yes.

PN347

All right, well, the first question I want to put to you about this is in 2009 when you came in at the tail end of the negotiation for the 2009 agreement, you were content to have your members agree to 23.1 and the version that's in the 2009 agreement, am I correct about that?‑‑‑Twenty-three point?

PN348

One?‑‑‑Yes.

PN349

The members voted upon that and they agreed with 23.1, correct?‑‑‑Yes.

PN350

And you were there and you were part of that, right at the tail end, as you said?‑‑‑Yes.

PN351

Then we have a vote for 2013, 24.1, and again the same clause, if I can put it like that, makes its way through, doesn't it, to the next agreement, un-amended?‑‑‑Yes.

*** BARRY MEGENNIS XXN MR HARRINGTON

PN352

Now this might get a little bit more complicated but 24.2 of the 2013 agreement, if you could go to that, we're here talking about this today, just have a look at that and it starts with, "While performing shift work an employee including", do you see that?‑‑‑Yes.

PN353

If you go back to 23.2 of the 2009 agreement, "While performing shift work an employee including a casual employee", do you see that?‑‑‑Yes.

PN354

And 24.2(a) which I just took you to, that was - - -?‑‑‑Sorry, 24.4(a)?

PN355

Little (a), the providence of that was 23.2(a), have I got that right?‑‑‑Yes.

PN356

Yes, and 24.2(b), the 2013 agreement, look at that, "For all ordinary time worked from midnight Friday to midnight Sunday", do you see that, and it goes on?‑‑‑Yes.

PN357

Yes, then go back to 23.2(d) and again I'll ask you, the providence of 24.2(b) is 23.2(d), isn't it?‑‑‑Yes.

PN358

And again you were part of the negotiating team, as we know, for the 2013 agreement, weren't you?‑‑‑Yes.

PN359

What was abandoned, lost, what was removed probably because it's out of date, was in the 2009 agreement, 23.2 (a), (b) and (c) – you didn't need them any more, did you, in the 2013 agreement?‑‑‑We needed (a) because that's – that's retained.

PN360

THE COMMISSIONER: No, (a), no.

PN361

MR HARRINGTON: Sorry, (a) was there – (b) and (c), I apologise, (b) and (c) is gone?‑‑‑Yes.

PN362

Because they're effectively out of date?‑‑‑Yes.

PN363

So there was a through line for the rest of the clause, clause 23 from 2009 through to 2013, clause 24, wasn't there?‑‑‑Yes.

PN364

And speaking of that which has survived, if I can put it like that, do you know where that language came from?‑‑‑The remaining clauses that are in the current agreement?

*** BARRY MEGENNIS XXN MR HARRINGTON

PN365

Yes, what was in the 2009 and what survived 2013, do you know where the language of these clauses came from?‑‑‑Not entirely because the 2009 negotiations, as I say, it was at the tail end. It was really just going through the final stages of taking it to a vote.

PN366

So that maybe it was that from your experience, it was already there?‑‑‑Yes.

PN367

And in 2013 it survived through, so to speak?‑‑‑Yes. I think the early agreement had some variation on those words though I can't quite recollect it off the top of my head.

PN368

There is nothing in the bargaining notes that you've produced, BM3, for the 2013 agreement that says there's a major problem with old clause 23, certain things have to be changed, certain things have to be removed, that's right, isn't it?‑‑‑Only to the extent that we did not understand that there was any issues with the clause.

PN369

Yes but if you can focus on the question and perhaps you've, in part, answered it, I've looked at your notes and you produce them as part of your statement, BM3, there's nothing saying, look, clause 23 has proved to have problems, or there is a lack of clarity about it, let's try and negotiate for the new clause 24, some different words or some amendment. There's nothing in that nature in your notes, is there?‑‑‑That's correct.

PN370

Can I hand up to you a copy of the Nurses' Award 2010. Have you got a copy of that with you? I'll hand that up.

PN371

THE COMMISSIONER: Thank you, Mr Harrington.

PN372

MR HARRINGTON: Can I take you to that award, or rather you might be taking me to it because I'm sure you've got a better working knowledge than I do, but clause 29, shift work, that's at page 27, at least on the version I have that I printed out, but could you just go to clause 29?‑‑‑Yes.

PN373

Are you familiar with this clause?‑‑‑Yes.

PN374

So this is the award – you might call it a boilerplate clause, from around 2010. Can I ask you to hold that in one hand and go back to the 2013 agreement, so we've got an award and an agreement now, not to agreements – clause 24.1, if you would?‑‑‑Yes.

*** BARRY MEGENNIS XXN MR HARRINGTON

PN375

If you look at clause 24.1 of the 2013 agreement you'll see, "An employee may be required to work shifts, being any work excluding which is rostered to commence after 12.00, and finishes after 7.00", and it goes on, do you see that?‑‑‑Yes.

PN376

Can I then take you to the award at clause 29.1(d) and it says, "For the purposes of this clause", afternoon shift is defined in a certain way, that's (d)(1), and then nightshift is defined in a certain way, do you see that?‑‑‑Yes.

PN377

And afternoon shift is defined under the award as 12 noon and finishing after 6.00, do you see that?‑‑‑Yes.

PN378

And then nightshift is 6 pm and finishing before 7.30 am in the morning?‑‑‑Yes.

PN379

If you then look at 24.1, what my side of the bar table is referring to as the definition of "shift work", you'll see that the same concepts are used, and I'm using my own language here carefully, but the times are slightly different, aren't they?‑‑‑Yes, that's correct.

PN380

So there's no reference to "afternoon shift" in 24.1 but it uses a span of hours for what I'll call, for argument's sake, afternoon shift, 12 till – after 12 noon and finishes after 7.00, do you see that?‑‑‑Yes. This is 24.1?

PN381

Yes, and conceptually that corresponds with 29.1(d)(1), afternoon shift definition, doesn't it? I say, "conceptually", because the times are slightly different?‑‑‑Conceptually.

PN382

Yes, and 29.1(d)(2), look at that, "Nightshift means", and then it goes on, and then if you look back at 24.1 you'll see, "or finishes before 7 am on any dayshift", do you see that?‑‑‑Yes.

PN383

And do you agree that conceptually that conforms with 29.1(d)(2) in the award?‑‑‑Insofar as the notional spread of hours?‑‑‑Yes.

PN384

And do you agree then that the providence, the likely providence of the 2009/2013 agreement, or the conceptual providence, is what's in this Nurses' Award, there's a similarity, isn't there?

PN385

MS KELLY: They're two different questions, whether something is with genesis - - -

*** BARRY MEGENNIS XXN MR HARRINGTON

PN386

MR HARRINGTON: I accept that.

PN387

MS KELLY: And something is similar.

PN388

MR HARRINGTON: I accept that. I've got to be careful because this is a 2010 award and I was asking about a 2009 agreement so I accept that?‑‑‑Yes.

PN389

So I don't want to confuse you. But let me reframe the question. You'll see that the award picks up a concept, or the award articulates a concept of afternoon shift and nightshift, doesn't it?‑‑‑Yes.

PN390

And then when you look at 24.1 do you agree with me that 24.1 also conceptualises an idea of an afternoon shift and a nightshift, doesn't it?‑‑‑It doesn't actually refer to the afternoon or nightshift though, does it?

PN391

No, it does not and I accept that but the concepts are the same, are they not?‑‑‑They're similar.

PN392

The span about timeframe concept?‑‑‑Is similar.

PN393

Is that correct?‑‑‑Similar.

PN394

Similar but for the time difference, is that right?‑‑‑And also to the extent that it doesn't reference it as being afternoon or nightshift.

PN395

Sure. Can I then ask you to look at 24.2 for – this is (a), for "ordinary time hour worked 7 pm, Monday to Friday", and it goes on, do you see that?‑‑‑Yes.

PN396

And then if I ask you to refer to the award at clause 26, Saturday and Sunday work, do you see that?‑‑‑Sorry, clause 26?

PN397

Yes, 26.1, which is page 23?‑‑‑26.1?

PN398

Yes, "where an employee is rostered to work ordinary hours between", and it goes on, do you see that?‑‑‑Yes.

*** BARRY MEGENNIS XXN MR HARRINGTON

PN399

Now I'll take you to 24.2(b) of the agreement, the 2013 agreement?‑‑‑Yes.

PN400

And that says, "For all ordinary time worked from midnight Friday to midnight Sunday and on public holidays, 50 per cent." Do you see that?‑‑‑Yes.

PN401

Do you agree that there's a conceptual overlap between 26.1 and 24.2(b)?‑‑‑Yes.

PN402

So at a broad level, certain award concepts are being used by the parties in the 2013 agreement, aren't they?‑‑‑Yes.

PN403

There's a document called a Form 1 application that has been filed in this Commission. Have you seen that before?‑‑‑Is this part of my - - -

PN404

No, but if you go to the folder that I've handed to you at tab 4, and I'm hoping you'll be able to find that document, it's the form that effectively kicks off this application. It's signed by Dennis O'Callaghan, or Callaghan, 25 February 2017?‑‑‑This is the F1?

PN405

The format 1, yes?‑‑‑Correct.

PN406

Have you read that before?‑‑‑I may have done briefly. I have no immediate recollection.

PN407

I don't want to pry into the relationship between yourself and your legal advisors but I assume that it works like this, that if your members had a problem they come to you, and if you think there's a problem you can go to your lawyers, and if the lawyers think there's a problem they can issue an application like this. Does that tend to be how it works?‑‑‑Not quite.

PN408

No? Okay. So did you have any involvement in the Form 1 application process? Did you personally have an involvement in this?‑‑‑No, I did not.

PN409

Unfortunately, or fortunately, I'm going to ask you about this, because well have you read it, the four or five pages of it?‑‑‑I have no immediate recollection of reading it.

PN410

Well that's fine. I was going to ask it, are the contents of the application accurate, so far as you're concerned. But if you haven't read it, is your answer I couldn't comment on it?‑‑‑It's the latter.

*** BARRY MEGENNIS XXN MR HARRINGTON

PN411

You can't comment on that. Well, it brings me to probably an important part of this cross-examination which is want you to tell me, Mr Megennis, what you say this dispute is about insofar as the ambiguities are concerned?‑‑‑Well, I understand the matter arose after Correct Care Australasia took over the organisational structure of GEO in early 2016. Up until that point in time, I was of no - I was not aware of any issues insofar as non-payment of entitlements arising out of the 2013 agreement. The industrial officer who was responsible for bringing this matter to the attention of our lawyers is currently on maternity leave and I understand, having read some aspects of the dispute notification, that CCA, Correct Care Australasia, ceased paying certain entitlements to employees when working shifts and/or on weekends.

PN412

Can I stop you there? You say you understand that's the case, do you not have any direct knowledge of that yourself?‑‑‑Not from the immediate engagement between ANMF and CCA.

PN413

You're not cognizant as such, of the alleged underpayments, how that's manifest? Is that your evidence?‑‑‑Only to the extent that it's been relayed to me.

PN414

That's what I'm trying to understand. Someone's told you that, being another industrial officer, you don't have a front line understanding direct from the members about that. Is that correct?‑‑‑Well, yes, I do, because at the time the industrial officer raised the issue, she and I had a discussion, a general discussion about the matter and we both agreed that those shift penalties had been paid prior to CCA taking over the organisational structure.

PN415

Yes, now, have you re-read your own statement before coming to give evidence today?‑‑‑I briefly looked at it this morning.

PN416

We've worked with, obviously your statement, because it's been filed in this application and just on that, is it the gripe, the complaint of the members/the union, because you're running the application, that there's been a change to the way weekend penalty rates were paid. Is that the gripe - is that the concern or the complaint?‑‑‑It's one of them.

PN417

Yes, but there's no basis to that complaint, is there Mr Megennis?‑‑‑I'm not entirely sure; I think there is.

PN418

In your statement you say at paragraph 10 that there was a change to the way weekend penalty rates were paid. That's right, isn't it?‑‑‑Yes.

*** BARRY MEGENNIS XXN MR HARRINGTON

PN419

Have you had the opportunity to read Ms Lee's statement which was filed after your statement?‑‑‑With some difficulty.

PN420

Sorry?‑‑‑With some difficulty.

PN421

It's a very simple question. Have you read it?‑‑‑Yes.

PN422

You've read Ms Lee's statement, and you know that Ms Lee has said that Correct Care paid the shift loading on weekend work, don't they?‑‑‑That's what she says.

PN423

Do you say that's wrong?‑‑‑I'm not entirely sure what they were paying.

PN424

Let's go back a step. I think you were here the last time. The Commission's issued orders. There were orders for production of or filing of any further material, witness statements, any other documents, by your side of the Bar table, by the union, by last week. We received nothing further from the union, just to let you know. There's no further statement from you. You've read Ms Lee's statement. It's the case Mr Megennis, that you don't know whether or not weekend penalty rates - sorry, weekend shift loadings were paid to the relevant members, do you?‑‑‑As far as I understand, yes they were.

PN425

As a continuum, my client, Correct Care has paid weekend penalty rates. Is that right; you accept that?‑‑‑If that's what they say.

PN426

You don't produce any evidence to challenge it, do you?‑‑‑No.

PN427

When at paragraph 10 of your statement you say, 'introduced a change to the way in which weekend penalty rates were paid', that's wrong, isn't it?‑‑‑I'm not - no, I don't accept that, because up until that point, we understood that penalty payments were paid, whether it be the 15 per cent, or whether it be the 50 per cent, they were paid accordingly.

PN428

You've just given evidence that you don't challenge Rebekah Lee saying that it has been paid and paid?‑‑‑Well, that's her statement.

PN429

MS KELLY: That wasn't his evidence, Commissioner.

PN430

THE COMMISSIONER: No.

*** BARRY MEGENNIS XXN MR HARRINGTON

PN431

MR HARRINGTON: You don't have any personal knowledge then of it not being paid, do you?‑‑‑No.

PN432

You filed no more material in this Commission to challenge Ms Lee's statement, have you?

PN433

MS KELLY: It's not this witness' job to file material, it's the ANMF's.

PN434

MR HARRINGTON: With the greatest respect, that is a legitimate question. You've not put on any other material, have you?

PN435

MS KELLY: I repeat the objection. It is not this witness who puts on material. If my learned friend wants to ask me about the ANMF, that's a different story, but this witness is not the applicant.

PN436

MR HARRINGTON: You haven't filed a statement rebutting anything in Ms Lee's statement, have you?

PN437

MS KELLY: I repeat the objection.

PN438

MR HARRINGTON: Well, this witness would know the answer to that question.

PN439

THE COMMISSIONER: Yes, that was the question directly to Mr Megennis.

PN440

MR HARRINGTON: You haven't filed another statement rebutting anything in Ms Lee's statement?‑‑‑I haven't filed another statement.

PN441

No, thank you. And to your knowledge, no one else is being called to challenge anything in Ms Lee's statement?‑‑‑Not as far as I'm aware.

PN442

Thank you.

PN443

You have asserted that Correct Care ceased paying a shift allowance for ordinary time hours worked on weekday AM shifts, haven't you?‑‑‑Yes.

PN444

And that's not right, is it?‑‑‑I don't accept that.

*** BARRY MEGENNIS XXN MR HARRINGTON

PN445

Paragraph 12 says this -

PN446

After the introduction of timetable GEO, Correct Care ceased paying shift allowance for ordinary hours worked on public holidays, week day AM shifts and night duty concluding at 7 am.

PN447

You've made three allegations in paragraph 12, haven't you?‑‑‑Yes.

PN448

The first one is that there's been a cessation or failure to pay shift allowance for ordinary hours works on public holidays?‑‑‑Yes.

PN449

Then there's a comma, then I read it to say -

PN450

Ceased paying shift allowance for week day AM shifts.

PN451

?‑‑‑This is in?

PN452

Paragraph 12 - it's your statement?‑‑‑Yes.

PN453

You're saying that my client, the respondent, Correct Care ceased paying the shift allowance for week day AM shifts, aren't you?‑‑‑That's correct.

PN454

But there's no obligation under the agreement, is there, to pay a shift allowance for week day AM shifts, is there?‑‑‑I'm not entirely sure.

PN455

So, you just don't know?‑‑‑Well, it's ambiguous. We understood that it was paid and continued to be paid and had been paid for many years.

PN456

But you're the person - and you didn't prepare the legal case, but you have sworn a statement, putting some factual context to the allegation of ambiguity and the like that's being made. You're saying here that there was a cessation to pay a week day AM shift allowance. Ms Lee has said it's never been paid. Are you aware of that?‑‑‑Yes, I'm aware of what Ms Lee has said.

PN457

Yes, so she's saying there's no cessation in that sense; it was never paid, they're not obliged to pay. Do you understand her to say that?‑‑‑Yes, I understood that she said that in her statement.

*** BARRY MEGENNIS XXN MR HARRINGTON

PN458

At paragraph 15, you say that prior to mid-15 -

PN459

Facilities enjoyed the benefit of being paid shift premiums when working ordinary hours upon weekends

PN460

And it goes on, but do you see that? Ordinary hours on weekends, yes?‑‑‑Mm-hm. Yes.

PN461

Now I don't want to go back over old ground, but do you accept that Correct Care has been paying a shift premium to your members for ordinary hours on weekend work?‑‑‑Yes.

PN462

You then go on to say there's been an expression of shock and anger by ANMF people to you about - this is at 16, about what you've asserted in 15, you see that?‑‑‑Yes.

PN463

But the shock and anger couldn't be about weekend shift premiums, could it, because they were being paid?‑‑‑Not if the payments were ceased. The 15 per cent appears not to have been paid.

PN464

You say it appears not to have been paid. When you say appears, I want your direct knowledge, your direct evidence on what that is?‑‑‑What I understand is that the employees who were working those weekends and on public holidays, were receiving the benefit of the 15 per cent.

PN465

I know in 15 you've said 'and public holidays' so you've put them together. I was just focusing on ordinary hours on weekends?‑‑‑The 50 per cent.

PN466

Yes, do you agree they have been getting that?‑‑‑I'm not entirely sure what they're being paid at the present moment.

PN467

This dispute, and you've got the great job of coming here to tell us what the background facts are. This dispute is about apparent or alleged failure to pay certain entitlements and are said to arise from ambiguity. Is your evidence that you're not sure what they're being paid?‑‑‑My understanding is that they were getting the benefit of both the 50 per cent and the 15 per cent and that from some time early in 2016, Correct Care changed that entitlement.

PN468

How do you say changed it?‑‑‑By not paying it in certain circumstances.

*** BARRY MEGENNIS XXN MR HARRINGTON

PN469

Not paying what sorry, that's what I'm trying to get to?‑‑‑The 15 per cent in certain circumstances.

PN470

But the 50 per cent continues - has always been paid. Do you agree with that?‑‑‑As I understand it, yes.

PN471

The Commission did ask the ANMF to produce a document which demonstrated, or exhibited or showed us the sorts of amendments that would be required if there was to be a variation. Have you seen that document?‑‑‑Yes.

PN472

Did you have any - I don't want you to tell me about what legal advice you got, but did you play any part in the proposed deletions and the like?‑‑‑Not to the extent of the documents that were provided by our solicitors.

PN473

Right, so can I just hand up to you. Everyone else has got a copy; it's just the one page. These are the proposed amendments?‑‑‑This is what our solicitors - - -

PN474

Yes, that is what we've received. Have you seen that before?‑‑‑Yes.

PN475

I've taken you through cross-examination, where 24.1 conceptually arises out of - you'll agree with me, arises out the award shift work clause?‑‑‑We've been through that, yes.

PN476

Yes. What's being proposed here is a deletion of 24.1. Were you cognizant of that? Were you aware of that before coming here?‑‑‑Today, yes.

PN477

We haven't heard much about 23.3, but do you see above? There's some words added to 23.3?‑‑‑This is the underlined section?

PN478

Yes?‑‑‑Yes, I can see that.

PN479

Your BM3 notes of the negotiation meetings, don't reveal any substantive discussion on clause 23.3, the overtime clause, do they?‑‑‑No.

PN480

How do you understand clause 23.3 to operate?‑‑‑In the actual agreement, or in this particular - - -

*** BARRY MEGENNIS XXN MR HARRINGTON

PN481

No, in the actual agreement, 2013 agreement?‑‑‑In a general sense, you're asking me?

PN482

You've got it in front of you, I don't want you just to read out the words, but you've got a practical working knowledge - sorry for stopping you from reading the words to me, but how do you understand it to operate?‑‑‑

PN483

MS KELLY: This is a question about this witness' opinion. What is the relevance to the issues in dispute?

PN484

MR HARRINGTON: Well, this witness forms part of the union and the union's called him to give evidence. He is saying he agrees that there's an ambiguity. I want to - I'm entitled to test his understanding of what he says the clause means.

PN485

MS KELLY: How is that relevant to what the Commission's got to decide? This is this witness' opinion about what the clause means. That's a question for the Commission to determine, not the meaning of construction of the clause is. I'm not sure how we're assisted by asking Mr Megennis what he thinks it means.

PN486

MR HARRINGTON: I request to ask the question. It's a matter for you, Commissioner.

PN487

THE COMMISSIONER: Do I understand Mr Harrington, you're wishing to ask the question because - got to be careful here - who's the applicant?

PN488

MR HARRINGTON: The ANMF is. We've got an F1, but he didn't draft it and I accept that.

PN489

THE COMMISSIONER: Yes, because by the sound of it - -

PN490

MR HARRINGTON: I think it was Ms Reid's, maybe was that right?

PN491

THE COMMISSIONER: Yes, Ms Reid was the previous IO who went off on leave, as I understand it. I think what - as the union is the applicant and the union is maintaining there is an ambiguity and uncertainty, you are asking an official of the ANMF as to what that ambiguity or uncertainty is.

PN492

MR HARRINGTON: Yes.

*** BARRY MEGENNIS XXN MR HARRINGTON

PN493

THE COMMISSIONER: Is that really what you're asking.

PN494

MR HARRINGTON: Correct, I am. I'm asking for him to identify it because that's the threshold question in this application. What's the ambiguity? I didn't select who was going to give evidence from the ANMF. They've chosen to put Mr Megennis, an experienced industrial officer in the box. If he doesn't have a view or he can't say, well then that's his answer.

PN495

THE COMMISSIONER: Appropriate weight. I'm happy for the question to be asked; appropriate weight will be given to it.

PN496

MR HARRINGTON: Thank you. 23.3?‑‑‑What's the question?

PN497

I thought you'd ask that. I'm asking you to look at the overtime clause, 23?‑‑‑Yes.

PN498

It's been alleged by your union that there's an ambiguity that needs some fixing, some variation, some clarification. You've given evidence that there's nothing in your notes about any discussions for the 2013 agreement dealing with 23 and 23.3, okay. You're an experienced industrial officer who works in the setting generally and with this particular respondent, Correct Care. What do you say when you look at that clause, is the ambiguity? What's the problem? If you don't know, would you please tell us?‑‑‑I don't have a particular view on 23.3.

PN499

Thank you. Do you agree that if your members said to you in a negotiation, a bargaining meeting, look for overtime if we work overtime on the last weekend and that puts us over to 80 or 84 hours above the 76, we want that to be dealt with in a particular way, we want the particular weekend rates for that last or final shift, you could negotiate that in a bargaining meeting, couldn't you?‑‑‑Yes.

PN500

To your best knowledge, dealing with clause 23 when you were at that 2013 agreement bargaining meeting, no such position was put, was it?‑‑‑I can't exactly recall back that far to the extent that we had any extensive discussions around it.

PN501

Thank you. I have no further questions.

PN502

THE COMMISSIONER: Thank you Mr Harrington. Any re-examination Ms Kelly?

PN503

MS KELLY: Yes, thank you, Commissioner.

*** BARRY MEGENNIS XXN MR HARRINGTON

RE-EXAMINATION BY MS KELLY [11.20 AM]

PN504

Mr Megennis, you gave some evidence that when negotiating the 2009 and the 2013 agreements, the ANMF generally referred to the pre-reform award. Do you recall giving that evidence?‑‑‑Yes.

PN505

Can you please tell the Commissioner why you referred to the pre-reform award, because the conditions in the pre-reform award were superior insofar as a range of conditions were concerned compared to the Nurses Award 2010.

PN506

What was the original of the pre-reform award, where did it apply before it was taken over the modern award?‑‑‑It was the Victorian Federal Award, so it applied to the health industry in Victoria.

PN507

Do you still have a copy of the Nurses Award 2010?‑‑‑Yes.

PN508

When you were negotiating the 2013 agreement, was there any discussion about the interaction between what became clause 24 and the provisions of this award?‑‑‑No, no.

PN509

For the agreement that is dated 2009, the Nurses Award 2010 wasn't in force as yet, but do you recall, to the extent you were involved, any discussion about what was clause 23 of the 2009 agreement, and what was then the draft modern award?‑‑‑No, there was no discussion on it.

PN510

Do you have any recollection of what the genesis of clause 23 in the 2009 agreement was?‑‑‑I think it stemmed from a much earlier agreement. I think it might have been the 2004 agreement. It may have been in existence prior to that.

PN511

So, it was an agreement that had some history?‑‑‑Yes.

PN512

If I could just ask you to pick up the modern award, Mr Megennis and turn to clause 22, please?

PN513

MR HARRINGTON: I object, I didn't cross-examine on clause 22.

*** BARRY MEGENNIS RXN MS KELLY

PN514

MS KELLY: He asked this witness questions about the interaction between this award and the agreement and I'm entitled to cross-examine on all of that subject matter. It's not limited to simply the terms that my learned friend went to. It goes to issues, not specific clauses, Commissioner. This witness was asked about whether or not there was similarities between clause 24.2 and the award. There are significant ways in which we will say there are no similarities and I am entitled to test that proposition. If that involves going to other clauses in this award.

PN515

MR HARRINGTON: There's a false premise in that submission, because it's put largely that I've said the award generally; I didn't. I compared 24 with specific clauses of the award. If my learned friend wishes to use the award to advance her argument, she had every opportunity in evidence in chief to do that with this witness.

PN516

MS KELLY: I am testing 24.2 against provisions of this award, which is picking up on the cross-examination that my learned friend undertook. It would be extraordinarily unfair if a partial picture was painted because this witness was only asked about certain clauses of this award and not others that form part of the picture.

PN517

THE COMMISSIONER: I didn't think clause 22 of the modern award was part of the picture.

PN518

MS KELLY: It is. It's certainly going to be part of the picture.

PN519

THE COMMISSIONER: Why?

PN520

MS KELLY: Because it deals with a span of hours which is absent from - there's no span of hours clause in the agreement and the way that clause 24 is drafted, is linked - we will say is linked. The line of questioning that was embarked upon with this witness about the interaction between clause 24 and the modern award, has to be seen in the full context.

PN521

MR HARRINGTON: I'll withdraw the objection.

PN522

THE COMMISSIONER: Okay.

PN523

MS KELLY: Mr Megennis, clause 22, see in clause 22.1?‑‑‑Yes.

PN524

The definition - the prescription of what ordinary hours of work for a day worker are?‑‑‑Yes, that's fine.

*** BARRY MEGENNIS RXN MS KELLY

PN525

You see in clause 22.2 the definition of what a shift worker is?‑‑‑Yes.

PN526

Do you know Mr Megenniswhy there is no counter-part clause in the agreement?

PN527

MR HARRINGTON: Object. Relevance, not an expert. How can he start talking about what is in and outside a modern award and why it's there and not there and the like. As I said, primarily relevance, but also, he's simply not in a position and doesn't have the expertise to start giving evidence about a matter such as that.

PN528

THE COMMISSIONER: About why it's not in the agreement? No, to be fair to Ms Kelly on this one, Ms Kelly was asking modern award versus the 2013 agreement, I think. Why it wasn't in the agreement.

PN529

MR HARRINGTON: Yes.

PN530

THE COMMISSIONER: Not why is it in the award.

PN531

MR HARRINGTON: I heard award, maybe I misheard it.

PN532

THE COMMISSIONER: It was award, then agreement, but you jumped up in the middle of the second one. I've got - - -

PN533

MS KELLY: It's a fairly short point, Commissioner. With one answer we can move on.

PN534

THE COMMISSIONER: 2013 agreement has the same terms that are under the spotlight as the 2009 agreement.

PN535

MS KELLY: It does indeed.

PN536

THE COMMISSIONER: Right, so unless you mean draft award, that's really the question, isn't it?

*** BARRY MEGENNIS RXN MS KELLY

PN537

MS KELLY: I think the proposition my learned friend was putting to this witness was that what we see in clause 24.2 somehow had its origin in the structure we see in the modern award because there are some similarities that he took the witness to. The clause itself has its genesis in 2009 which was prior to the modern award, so that's point one that attacks that proposition, but there are substantial differences in the structure between the award and the 2013 agreement that undermine the proposition that I understood my learned friend to be putting. It's a matter of five or six questions.

PN538

THE COMMISSIONER: So there's four or five more after the next one? Is that the situation?

PN539

MR HARRINGTON: There usually is.

PN540

MS KELLY: Yes, but they are short questions, I assure you, Commissioner.

PN541

THE COMMISSIONER: Maybe what might help is from the Commission's perspective factually, the clauses under the spotlight in the 2013 agreement are the same as in the 2009 agreement.

PN542

MS KELLY: Indeed they are.

PN543

THE COMMISSIONER: Mr Megennis' evidence is about those clauses in the 2009 agreement, is as I recall, that he's not 100 per cent sure about the genesis of the 2009 particular clauses. He things that they might have been there a while, they might have been in the previous agreement, which was 2004, maybe, maybe not. From the Commission's perspective, I'm having difficulty drawing a connection between a draft 2010 modern award and the 2009 clauses.

PN544

MS KELLY: Yes, as I said, Commissioner, what I understood my learned friend's line of questioning to be directed to, was notional similarities between the award, once made, and the 2013 agreement.

PN545

THE COMMISSIONER: Yes, but the clause in the 2013 agreement clauses, didn't change from 2009.

PN546

MS KELLY: I'm with you, Commissioner.

PN547

THE COMMISSIONER: But I'm just being clear where I am. Does that help your questioning?

*** BARRY MEGENNIS RXN MS KELLY

PN548

MS KELLY: It does, and I can leave this entire line of questioning so long as it is accepted that in submissions, I will be drawing to your attention those aspects of the modern award that undermine the proposition that my learned friend was putting to the witness.

PN549

THE COMMISSIONER: I will never, unless it's so outlandish and irrelevant that even I think it is both of those things, I'll never stand in the way of any advocate putting in submissions what they're putting. I'm just being open and transparent because I'd like to finish before midnight.

PN550

MS KELLY: No, I appreciate that, Commissioner. We would both agree with you. My concern is not so much the approach that you would take, Commissioner. It's the objection that I can anticipate from my learned friend when he says well the witness conceded there are similarities between what's written in the modern award and what's in the 2013 agreement, and Ms Kelly did not cross-examine about that.

PN551

THE COMMISSIONER: With great respect, I might disagree with the witness. Mr Harrington, in terms - it seems that Ms Kelly is - one of Ms Kelly's motivations for the line of questioning, that I'm now taking much longer than the questions would have taken themselves, is forward planning and protection in terms of criticism of Ms Kelly because the Commission has prevented her cross-examining on an issue that is - has been clearly and squarely raised by the respondent.

PN552

MR HARRINGTON: Well, that's part of the problem she's not allowed to cross-examine so I've been trying to stop her doing that because it's her witness, but she's trying to amplify or clarify matters that have arisen out of cross-examination and I accept that.

PN553

THE COMMISSIONER: Yes, sorry.

PN554

MR HARRINGTON: That's why I withdrew - I think she wants to ask about clause 22, I withdrew that.

PN555

THE COMMISSIONER: All right. Maybe - - -

*** BARRY MEGENNIS RXN MS KELLY

PN556

MR HARRINGTON: She doesn't agree with the underlying premise and I qualified that premise in any event with the witness if you'll recall when I asked the question. I said I accept that 2009 pre-dates 2010 in any event so I've had to be careful about how I put it. But I really just took him to the conceptual similarities between what's there in the award presently has been since 2010 and what is clear was some of these things were there in 2009, pre-dates the award but they survived through to 2013 as well.

PN557

THE COMMISSIONER: Yes, they clearly did that.

PN558

MR HARRINGTON: Yes. Well, that's the extent of it.

PN559

THE COMMISSIONER: So should Ms Kelly ask her five or six questions?

PN560

MR HARRINGTON: If I can stop Ms Kelly asking questions I'll take every opportunity to do that. If you're asking me about these five or six questions - - -

PN561

THE COMMISSIONER: Yes, I am.

PN562

MR HARRINGTON: - - - I can't know what the questions are or where she wants to go exactly but I've tried to clarify that I took the witness to it to simply bring to your attention what I consider, and you may not, the witness may agree or may not agree conceptual similarities, the award, the agreement. We all agree on the dates, 09, 10 and 13, there's no dispute about that. It is what it is.

PN563

THE COMMISSIONER: Yes.

PN564

MR HARRINGTON: It's no more sophisticated than that.

PN565

MS KELLY: I can abandon this entire line of questioning on that basis.

PN566

MR HARRINGTON: Sorry, if I was being asked if I'm going to criticise her in closing about that, no, I'm just going to make the point - - -

PN567

THE COMMISSIONER: That's the question.

PN568

MR HARRINGTON: - - - that she can disagree with in closing, look at the similarities conceptually. It's there in the modern award and the agreement's been there for a while. There it is, and she'll say what she wants to say about that.

PN569

MS KELLY: We don't need to proceed with the questioning on that basis, Commissioner. Mr Megennis, you were asked a series of questions about the dispute that had been filed by the ANMF. Do you have a copy of the statement of Rebekah Lee with you?

*** BARRY MEGENNIS RXN MS KELLY

PN570

MR HARRINGTON: Maybe not in that folder.

PN571

THE WITNESS: No.

PN572

THE COMMISSIONER: It should be in the folder, shouldn't it?

PN573

MR HARRINGTON: It wasn't there originally of course.

PN574

THE COMMISSIONER: Wasn't it? No.

PN575

MR HARRINGTON: It's recent. So we have got - - -

PN576

THE COMMISSIONER: I thought you might have - - -

PN577

MR HARRINGTON: There we go, we've got a spare copy.

PN578

MS KELLY: Mr Megennis, could I ask you to take up that statement and turn to paragraph 21 please? Can I just ask you to read paragraph 21 to yourself and indicate to me when you've done so?‑‑‑Yes. Yes.

PN579

You'll see that Ms Lee says:

PN580

Correct Care has adopted the position that it is not required under the terms of clause 24.2(b) of the Nurses Agreement to pay a 50 per cent shift work loading for all hours worked on a weekend, being midnight Friday to midnight Sunday.

PN581

Do you see that?‑‑‑Yes.

PN582

What does the ANMF say to that?‑‑‑They'd agree with that. They should be paid for all hours.

PN583

Why should they be paid for all hours?‑‑‑It's - - -

*** BARRY MEGENNIS RXN MS KELLY

PN584

MR HARRINGTON: Well, I object to that question because I was stopped asking the witness before about his interpretation of the agreement and the like and now the witness is being asked well why should it be. So it refer to his own personal opinion about how the agreement itself operates.

PN585

MS KELLY: No, that's not correct, your Honour - Commissioner. All I'm asking this witness is whether it's because that is how the ANMF believes the clause operates or whether there might be another source of entitlement. Do they think - do they disagree because that's what they believe the agreement says or is there something else out there that they say gives right to the entitlement?

PN586

THE COMMISSIONER: Ms Kelly - - -

PN587

MS KELLY: I can go round it a different way, Commissioner. I can withdraw the question and put it differently.

PN588

THE COMMISSIONER: Yes, I'm having trouble with that. Please.

PN589

MS KELLY: I withdraw that question, Mr Megennis. Could you go to the last sentence of that paragraph where it says:

PN590

Correct Care is simply adopting an over-agreement payment made by GEO Care.

PN591

Do you see that?‑‑‑Mm-hm.

PN592

Do you agree with Ms Lee that it is simply an over-agreement payment made by GEO Care?‑‑‑No. No.

PN593

Why is that?‑‑‑Because the nature of weekend work has across the industry always incorporate a 15 per cent loading for ordinary hours worked.

PN594

Can I ask you to go to paragraph 23, Mr Megennis, and again just read that paragraph to yourself and indicate to me when you've done so?‑‑‑Yes.

PN595

You see there that Ms Lee says that:

PN596

Correct Care is of the opinion that it is not required under the terms of clause 24.2(a) of the Nurses Agreement to pay a 15 per cent shift work loading on weekday night shifts which conclude at or after 7 am, as opposed to 7 am.

*** BARRY MEGENNIS RXN MS KELLY

PN597

Do you see that?‑‑‑Yes.

PN598

What does the ANMF say to that?‑‑‑We don't accept that. We understand it should be paid for all shift work hours.

PN599

There's nothing further for this witness, Commissioner.

PN600

THE COMMISSIONER: Mr Megennis, thank you for your evidence. You are released, you may step down?‑‑‑All this documentation here, do you want this back?

PN601

MS KELLY: We might just leave that in the witness box, Mr Megennis, thank you. The folder - - -

PN602

MR HARRINGTON: Yes, could I just have returned the one page on the proposed variation that I handed up. Thank you.

PN603

THE COMMISSIONER: I think that was your copy?‑‑‑I think it was. Do you want me to leave my statement up here as well?

PN604

MS KELLY: Yes, that would be convenient, thank you.

<THE WITNESS WITHDREW [11.39 AM]

PN605

MS KELLY: Commissioner, that's the only witness for the applicant. I note that Mr O'Callaghan has joined us and he may wish to come and sit at the Bar table. If he does we might let him do that so as not to disturb the next witness that's to be called. Thank you, Commissioner.

PN606

THE COMMISSIONER: Mr Harrington.

PN607

MR HARRINGTON: I assume my learned friend has closed her case and there's no further evidence, Commissioner, and I wish to make an application under section 587(1)(c) that the Commission has power to dismiss the application and it says this:

*** BARRY MEGENNIS RXN MS KELLY

PN608

Without limiting when the FWC may dismiss an application. The FWC may dismiss an application if; (c) the application has no reasonable prospect of success.

PN609

I make that application in respect of what I'll call the clause 23 overtime claim. That's the second ground, as it were, of the application. You will recall that - perhaps it will help you if you look at the proposed variation 23.3 adds a sentence to or there is a proposal to add a sentence to the variation to the terms, sorry, of the - or the clause of the agreement:

PN610

To avoid doubt in the case of full-time employment, overtime shall be paid for all work done in addition to the rostered full-time hours of work.

PN611

That's what is proposed. So that's the end point. If one then comes back to the point of well, what evidence is adduced - what evidence has been adduced by the applicant in support of that particular variation such that the known mutual intentions of the parties can be reflected in the proposed variation, there is no evidence. There's no evidence at all called by my learned friend to support any variation. So whether or not you find the ambiguity and there is no ambiguity, we've made that submission, there's been no evidence called to make a variation to change or to clarify the clause so as to reflect the accepted objectively determined mutual intention of the parties.

PN612

Mr Megennis gave very clear evidence that he didn't adduce any record in the negotiation documents BM3 but a negotiation in respect of the overtime 23.3 and what is proposed, and there's nothing else in his statement. Nothing at all. So I put it rhetorically at this point, how could it be that if you do determine there's an ambiguity with - and we'd vigorously deny that. If you do determine there is one, what have you got as the Commission to proceed upon to vary? There's no evidence. There's no evidence of the party adduced from a party to reflect the intention of the parties to the agreement to say oh well, here's what was actually intended. Unfortunately the clause doesn't seem to have set that out clearly. There's nothing there.

PN613

That's why - and I'm starting at 23.3, I'm starting from what is sought ultimately because that's why this document's very critical because we need to know what variation is proposed and we work backwards from that to the question of well, what evidence are you adducing to support that proposed variation? None. Now on the question of what power you have, can I refer you to and hand up an authority of Townsley v State of Victoria [2013] FWCFB 5834. I'll provide a copy to yourself and to my learned friend. This was a Full Bench decision. It was a proposed appeal where leave or permission was sought in respect of a decision of Gregory C.

PN614

I do have a personal knowledge of the matter because I was in it. A lot of the decision is concerned with what was a no case submission that was made. There's a very elegant review of authorities about no case submissions, and you might be aware of the fact that in a no case submission, Commissioner, a party can be put to their election or ought to be put to their election, which is if you want to make that submission you can make it but you're not allowed to call evidence if you lose the submission. That's the common law concept of the no case submission. The Full Bench correctly pointed out and if I can take you to paragraph 17 under the heading "Decision" you'll see there's a reference to Micheletto v Korowa Anglican Girls' School and there's an extract there under the heading "No case submissions":

PN615

In civil proceedings, an application proceedings an application might be struck out at the conclusion of the plaintiff's case in response to a submission on behalf of the defendant that there is no case for the defendant to answer, a no‑case submission. Except in a narrow class of cases the defendant would be required to elect between making a no‑case submission and calling evidence.

PN616

Accordingly, if the no‑case submission were to fail the defendant would not be permitted to call evidence. Whether the respondent is put to its election is a matter in the discretion of the judge.

PN617

That's what I was just addressing you on. That's all interesting background for this application because I'm not relying upon the no‑case submission. I'm relying upon directly section 587(1)(c). You will see in the Townsley decision, at paragraph 19 of that decision across the page:

PN618

The power to undertake that course under the Act is now confirmed by section 587(1)(c), which expressly empowers the Commission to dismiss an application that has no reasonable prospects of success. Thus there is no doubt that the Commissioner had the power to dispose of Mr Townsley's application in the way that he did once he had formed the view that the application had no reasonable prospects of success.

PN619

Then it goes on about the alternative course the Commissioner could have taken. When I arise to that and make this application, it's under 587(1)(c) in respect of clause 23.3 that taking the applicant's case at its highest, assessing all the evidence adduced on 23.3 and giving the applicant the benefit of that evidence, then asking yourself, "When I look at the clause, is there an ambiguity?" – and I'll go this far, Commissioner, and assume for the sake of argument there is an ambiguity, then ask yourself, "Would I then exercise my discretionary power to amend it in the way, to vary it in the way, that the applicant contends?"

PN620

That's when my submission gets traction, because the submission I make is there has been no evidence adduced to support a variation of that nature. There is no evidence called such that you could vary the term of a clause in that way. This is on 23.3, the overtime - - -

PN621

THE COMMISSIONER: Yes, I've got that bit. I'm just wondering as to what evidence you think should have been provided to the Commission on that one; on clause 23.3.

PN622

MR HARRINGTON: I'm loath to get into that speculation, but I will say this, Commissioner: it is as simple as here is evidence of what the parties negotiated in respect of the particular clause and some issues that were raised about how it might operate. Remember, you might have recourse to extrinsic or surrounding circumstances at this point on the "how should I vary" question.

PN623

THE COMMISSIONER: Yes.

PN624

MR HARRINGTON: When you go to Mr Megennis' statement, both the body of the statement and the annexures to the statement, there is a complete vacuum, a complete absence, of any evidence of that quality or calibre. There is simply nothing.

PN625

THE COMMISSIONER: My question – let me put it another way – in terms of what is sought, does there actually need to be evidence?

PN626

MR HARRINGTON: Yes.

PN627

THE COMMISSIONER: As opposed to submissions, because I've definitely got submissions. We all have.

PN628

MR HARRINGTON: Yes, of course. Can I take you to tab 6 of – sorry, you don't have the folder, but it's the respondent's outline of submissions.

PN629

THE COMMISSIONER: Yes.

PN630

MR HARRINGTON: My learned friend and myself tend to agree on the operating principles.

PN631

THE COMMISSIONER: Yes, you do.

PN632

MR HARRINGTON: I really don't think there is a lot of dispute about how the Commission comes to the task and what it must do.

PN633

THE COMMISSIONER: No.

PN634

MR HARRINGTON: Can I refer you to the – if I can start with the Berri decision which I took you to before, perhaps.

PN635

THE COMMISSIONER: Yes.

PN636

MR HARRINGTON: Which is a pretty good place to start. Particularly paragraph 108. This is dealing with post‑agreement conduct and it refers to the concept of common understanding. What the Commission does it look to any evidence of common understanding that is admissible that would then inform how you ought to vary. What we have here is nothing about a common understanding - - -

PN637

THE COMMISSIONER: That's not uncommon to not have a common understanding.

PN638

MR HARRINGTON: I don't want to play rhetorical games with you, but if you have to exercise a discretionary power to clarify, fix, the clause, how do you do that in a vacuum?

PN639

THE COMMISSIONER: You do it.

PN640

MR HARRINGTON: No, you do it in an orthodox manner by having regard to what the parties actually intended to the consensus ad idem on this particular ground of the negotiation - - -

PN641

THE COMMISSIONER: Yes, but - - -

PN642

MR HARRINGTON: To the agreement.

PN643

THE COMMISSIONER: What I'm trying to say, Mr Harrington, is it is not unusual for there to be no agreement as to what the parties' intention was. That's the reason you've got an application under 217 generally.

PN644

MR HARRINGTON: But what you do is look to the objective evidence that has been adduced before you to say what is surrounding circumstances for this "ambiguous clause"? That is the nature of the variation that is sought to reflect X or Y – or to reflect X when coming from the position of the applicant.

PN645

What you can't do, either now or at the conclusion when you reserve and you make your decision, is to determine it in a vacuum; because what then happens is you cross a line, Commissioner, of the Commission then determining an entitlement. That, as we know, is the job of the parties. The parties have to determine how the entitlement should operate.

PN646

THE COMMISSIONER: Yes.

PN647

MR HARRINGTON: What we see with the proposed variation that has been provided to all of us is that there is an addition to –

PN648

overtime shall be paid for all work done in addition to their rostered full‑time hours of work.

PN649

The question arises, well, what evidence did you receive about that there was a negotiation, a discussion or an intention emerging from the negotiations in 2013 that this idea that there would be full‑time employees – that the overtime operates in respect of the addition? Remember the clause itself deals with the notion of excess. There is simply nothing there. They don't call any evidence. They don't call any evidence on this question. Even Mr Megennis said that.

PN650

I mean, I could be so bold as to submit, oh, it's just an add‑on. Let's just throw that in there, as well, because we're really going to have a fight about 24, but when you put the pieces of the puzzle together - evidence, the question of ambiguity, what do they want by way of variation - then you start from the final premise which is, well, what do they want as a final question by way of variation and you go back to revisit the evidence that's called, and you're in a vacuum. You've got nothing.

PN651

I took you briefly to the Berri decision about this very question; that ultimately the task of the Commissioner is to give form to the intention of the parties. How do you do that if you don't receive any evidence about this particular clause in the negotiation process? You simply have no basis to vary it in the manner that is sought. No basis whatsoever.

PN652

It's not going to get any better for my learned friend, because their case is closed. You can't call any further evidence. That's why I'm standing up now at the end of her case to say, "Well, that can't succeed. Even at this early point you cannot succeed given now the case has been calibrated in all the circumstances." Those are the submissions.

PN653

THE COMMISSIONER: Thank you, Mr Harrington. Ms Kelly?

PN654

MS KELLY: Thank you, Commissioner. The very great difficulty with my learned friend's application is that it is attempting to put a fetter on the statutory power conferred on this Commission. This is not a pure contested civil matter as between the parties. This is an application for the Commission to exercise specific statutory power and that power is found in section 217.

PN655

It is conditioned only upon this tribunal being satisfied that there is an ambiguity or an uncertainty in an agreement. That is the only jurisdictional fact that it is necessary to establish in order for your power to be enlivened. The existence of ambiguity or uncertainty can be determined on the face of the agreement. There is no doubt about that. Leaving aside the question of whether or not you will find that that ambiguity or uncertainty exists, no evidence is needed for that task. We are simply going look at the text of the agreement and I'll submit to you why it's ambiguous; and you will either be with me or against me.

PN656

Where you are satisfied, you have a discretion as to whether or not to vary. There are a whole range of factors, we know from the decided authorities, that you may choose to take into account when deciding whether to exercise your discretion to vary, but there are no mandatory considerations. The statute and the parliament sitting behind it does not direct this tribunal about what it is to take into account when it determines whether to exercise its discretion.

PN657

Third, the statute does not confine the power by evidence as to the objective mutual intention of the parties. That notion comes to us from the authorities - from Tenix and the earlier line of authorities before that – that says because it is a quasi‑judicial tribunal, one of the things that will be taken into account when exercising the discretion is whatever evidence there may be of the objective mutual intention of the parties. That's what Tenix tells us.

PN658

Now, you picked up the point with my learned friend directly; there are a great many cases where there is no documentation that tells us what the objective mutual intention of the parties is. So where there is no evidence of it, the requirement determined by the authorities that we take that into account doesn't apply. To be very clear, it is not a requirement that there be evidence of that before this tribunal can exercise the power conferred on it under section 217. That is now how the statutory scheme operates.

PN659

It may be a reason for the tribunal to decline to exercise jurisdiction and it may be a reason for the tribunal to exercise its discretion in a particular way, but it does not condition the exercise of power; so my learned friend's application must fail because the jurisdiction of this tribunal under 217 is invoked without any evidence at all. It can be invoked by the pure words of the text and then the discretion can also be exercised without any evidence before the tribunal at all. The power in that sense is unfounded.

PN660

To reiterate, all that the Tenix line of authority and following tells us is that where there is available evidence of the objective mutual intention, you're bound to take it into account. The application my learned friend makes simply can't succeed as a matter of law.

PN661

MR HARRINGTON: I'll be very brief in reply. I refer to tab 9 of the folder. I'm sorry, the folder is over there, but it's a case of Beltana Highwall Mining, which is well known in this area. In that case it was really set out by the Full Bench at paragraph 23 – and this is dealing with section 170MD(6) in the old days. This is stated:

PN662

The Commission is empowered to remove an ambiguity or uncertainty by varying an agreement to remove it in a manner which gives effect to the mutual intentions of the parties at the time the agreement was made.

PN663

If you just focus on that; it gives effect to the mutual intention at the time the agreement was made. What evidence do you have about the mutual intention of the parties at the time the agreement was made in respect of clause 23.3? Nothing. How then can you give effect to that mutual intention in respect of clause 23.3? You can't. I can't comprehend my learned friend's submissions to the extent that she says you can proceed without any evidence. If she means you can come to the first task of looking at the question of ambiguity on the words I understand that. You look at the word themselves, but if you move beyond that task, and I conceded for the purpose of argument, assume an ambiguity at this point, what could you do in the exercise of your discretion? What you can't do here is give effect to the mutual intention of the parties at the time the agreement was made because you've got nothing.

PN664

THE COMMISSIONER: I think that that was Ms Kelly's point, is that both of you have a common view that the first task is to read the clause, and then if the Commission forms a view that a particular clause is ambiguous then the task beyond that is to decide whether to exercise discretion, and the objective mutual intention of the parties is one of the guiding factors in terms of exercising discretion and deciding what the variation should look like.

PN665

MR HARRINGTON: Yes.

PN666

THE COMMISSIONER: I thought at the end you were both saying the same thing, and that is, that if there is no evidence of the objective mutual intention of the parties, either in terms of terms of what I raised is the evidence conflicting, and it's not possible to actually ascertain any objective mutual intentions by the parties or there isn't any, which is this matter.

PN667

MR HARRINGTON: Yes.

PN668

THE COMMISSIONER: Then it stops. The discretion is not exercised.

PN669

MR HARRINGTON: How could one rhetorically? How could you because you ‑ ‑ ‑

PN670

THE COMMISSIONER: Exactly.

PN671

MR HARRINGTON: ‑ ‑ ‑might, without intending to do so, is that you would then start to sit in the seat of saying, "I'm effectively arbitrating. Here's a term and condition". You can't do that.

PN672

THE COMMISSIONER: That's not the Commission's role.

PN673

MR HARRINGTON: Correct. The point that I made, and my learned friend refers to Tenix, and the ACT Government decision at tab 10 of our folder says the same thing at 9(f). It says:

PN674

In terms of the second stage of the process once an ambiguity or uncertainty has been identified in exercise of the discretion of the tribunal whether or not to vary the agreement the tribunal is to have regard to the mutual intention of the parties at the time the agreement was made.

PN675

Re Tenix which was Beltana as well, and ‑ ‑ ‑

PN676

THE COMMISSIONER: Okay. But that may knock out the second part of it, but it doesn't knock out the first task in terms of clause 23.3.

PN677

MR HARRINGTON: It doesn't. But for the purposes of this application that I've made, not unlike making a no case to answer submission, the purposes of argument I conceded assume ambiguity, assume you've made that, for the purposes of this argument; assume ambiguity, take the next step. What have you got? You've got nothing, so how could you ever grant the relief? That's the submission I'm making. The relief that is sought please vary in this way, and we know how they want it varied.

PN678

THE COMMISSIONER: Yes.

PN679

MR HARRINGTON: How could you ever grant that when you've got no evidence adduced before you of the mutual objective intentions of the parties?

PN680

THE COMMISSIONER: But what that's doing, I suppose, is taking the Commission out of that determining role in relation to whether or not there is an ambiguity in relation to clause 23.3, and I'm not sure I've got a ‑ ‑ ‑

PN681

MR HARRINGTON: If you're uncomfortable with that – I understand what you're saying.

PN682

THE COMMISSIONER: Just simply because I haven't formed a view.

PN683

MR HARRINGTON: Yes. I'm simply saying though that and consistent with the way it's done in the civil courts where you have to take your opponent's case at its highest is how it's put.

PN684

THE COMMISSIONER: Yes, yes, yes.

PN685

MR HARRINGTON: So I'm having to accept, in making the 587, when I see the submissions I'll assume she's got up on ambiguity.

PN686

THE COMMISSIONER: Yes.

PN687

MR HARRINGTON: I don't agree with that, but assume that, what happens next? Stage two as it's referred to?

PN688

THE COMMISSIONER: Yes.

PN689

MR HARRINGTON: My point is a very simple one. Look at what is sought, the relief, the variation, you can't do that. We're not hearing about two or three different proposed forms of variation. That would say something very different if the case was being run like that, but you can't do what's being sought on the case that's been advanced, evidentiary case that's been advanced. It's no more sophisticated than that. That's what I'm putting. If you say, well, I feel like I've got to take a traditional course of determining the jurisdictional question of ambiguity before I determine the matter I consider that to be, with respect, the long way home.

PN690

THE COMMISSIONER: Yes.

PN691

MR HARRINGTON: I'm offering the short way home because nothing more the ANMF can do at this point is going to change the submission that I've made.

PN692

THE COMMISSIONER: Yes.

PN693

MR HARRINGTON: That's how I put it.

PN694

THE COMMISSIONER: Mr Harrington, I appreciate that. Unless the ANMF wanted to amend their application to not include clause 23.3 I'm going the long route.

PN695

MR HARRINGTON: Yes, I understand. So the application is dismissed on that basis.

PN696

THE COMMISSIONER: Yes.

PN697

MR HARRINGTON: I don't hear them abandoning what I consider to be an entirely futile and unmeritorious application in that respect. I don't hear them abandoning that so we have to then take the long way home.

PN698

I call Ms Rebekah Lee.

<REBEKAH CHRISTINE LEE, SWORN [12.05 PM]

EXAMINATION-IN-CHIEF BY MR HARRINGTON [12.06 PM]

PN699

THE COMMISSIONER: Thank you, Ms Lee. Please have a seat.

PN700

MR HARRINGTON: Thank you, witness. Could you give your name to the transcript, please?‑‑‑Rebekah Christine Lee.

PN701

Thank you. Your current professional address is?‑‑‑Level 1, 65 Southbank Boulevard, Southbank.

PN702

Thank you. Who are you presently employed by?‑‑‑Correct Care Australasia.

PN703

What is your position?‑‑‑Human resources manager and organisational development.

*** REBEKAH CHRISTINE LEE XN MR HARRINGTON

PN704

Thank you. How long have you been in that position?‑‑‑Three and – just a bit over three years.

PN705

So that takes us back to about 2014, does it?‑‑‑Yes, June.

PN706

Thank you. You've made a statement in this application; is that right?‑‑‑Yes, I have.

PN707

I'm hoping it might be in front of you somewhere there. If you just sift around?‑‑‑Yes.

PN708

Have you got a document that says Statement of Rebekah Christine Lee?‑‑‑I do.

PN709

Thank you. You've got that, Commissioner, haven't you?

PN710

THE COMMISSIONER: I do.

PN711

MR HARRINGTON: Thank you. Can I clarify with you, Ms Lee, that the document you have runs to seven pages. This is the statement proper, and 23 paragraphs?‑‑‑Yes. That's correct.

PN712

Thank you. There are a number of exhibits to the back of that. There's RL1 which is a GEO timesheet?‑‑‑Yes.

PN713

I'll just take you through them; RL2 is a GEO timesheet as well?‑‑‑Yes.

PN714

RL3 is a GEO Time timesheet?‑‑‑Yes.

PN715

RL4 is the same again, or a collection of them I should say?‑‑‑Yes.

PN716

Although there is a reference actually in RL4 to Correct Care Australasia documentation as well. Do you see that?‑‑‑Yes.

PN717

RL5 is – again, it's a GEO Time timesheet and then there's Correct Care Australasia material behind that; yes?‑‑‑Yes.

*** REBEKAH CHRISTINE LEE XN MR HARRINGTON

PN718

RL6 is GEO Time timesheet and, again, Correct Care Australasia timesheet behind that, or pay record, I should say? Yes?‑‑‑Yes.

PN719

Sorry. Number 8, RL8, is a landscape document referring to Gail Reynolds?‑‑‑Yes.

PN720

Actually there's a number of documents, pay records referring to other employees as well; is that right?‑‑‑Yes.

PN721

RL9 again it starts off with a landscape document, Rodney Morrine and there is then attached to that what appears to be a payment record for that same employee; is that correct?‑‑‑Yes.

PN722

Ten is the same sort of documentation for Amarit Singh?‑‑‑Correct.

PN723

11 is a landscape document for Anne Lee?‑‑‑Yes.

PN724

And attaching some other records as well; is that right?‑‑‑Yes.

PN725

Thank you. RL12 is Gail Reynolds, landscape document and attaching pay records?‑‑‑Yes. That's correct.

PN726

There's also some pay records for some other employees amongst those; is that right?‑‑‑Yes, there is.

PN727

Thank you. RL13 landscape document again for Gail Reynolds, but this time just attaching a pay record for her; is that right?‑‑‑Yes.

PN728

RL14 Amarit Singh landscape document, and again a pay record for Amarit Singh attached to that; is that right?‑‑‑Yes.

PN729

RL15 is Gail Reynolds again. And a pay record attaching to that from Correct Care?‑‑‑Yes.

PN730

RL16 Amarit Singh, a landscape document and a pay record attached to that?‑‑‑Yes.

*** REBEKAH CHRISTINE LEE XN MR HARRINGTON

PN731

Have you had a chance to reread this document recently? Your statement that is?‑‑‑Yes, I have.

PN732

Are there any amendments or changes you wish to make to that statement?‑‑‑No.

PN733

Is that statement true and correct in every particular?‑‑‑Yes, it is.

PN734

Do you wish to rely upon that statement giving your evidence here today?‑‑‑Yes, I do.

PN735

Thank you. I tender that.

PN736

THE COMMISSIONER: Is there any objection, Ms Kelly?

PN737

MS KELLY: No, Commissioner. Thank you.

PN738

THE COMMISSIONER: Okay.

PN739

MR HARRINGTON: Is that marked R something, I guess; is that right?

PN740

THE COMMISSIONER: Hang on. I haven't got that far. Because I was going to ask, I notice all the attachments have employees' names plus their pay details. I'm figuring maybe all of those should be confidential? I'm uncomfortable ‑ ‑ ‑

PN741

MR HARRINGTON: I'm completely relaxed about – I'm happy for that to occur and I think my learned friend would be – that's fine ‑ ‑ ‑

PN742

MS KELLY: Content with that course.

PN743

THE COMMISSIONER: Yes. I'm just not comfortable it being other than that. So, firstly, I shall mark the statement of Rebekah Christine Lee dated 18 August 2017 together with 16 exhibits as exhibit R3.

EXHIBIT #R3 WITNESS STATEMENT OF REBEKAH CHRISTINE LEE DATED 18/08/2017 TOGETHER WITH 16 ATTACHMENTS

*** REBEKAH CHRISTINE LEE XN MR HARRINGTON

PN744

THE COMMISSIONER: All of the exhibits will be marked confidential and kept in a sealed envelope on the file requiring my permission before it's available to anybody other than the direct parties. Do you have any examination-in-chief, Mr Harrington?

PN745

MR HARRINGTON: No, I don't. Thank you.

PN746

THE COMMISSIONER: Okay. Thank you. Ms Kelly?

CROSS-EXAMINATION BY MS KELLY [12.11 PM]

PN747

MS KELLY: Thank you, Commissioner. Ms Lee, how many facilities does Correct Care operate at which this agreement applies?‑‑‑Fourteen.

PN748

Are you familiar with the patterns of work of workers at each of those facilities to whom this agreement applies?‑‑‑I don't know how to answer that because there are many employees with many different patterns of work, so I can't be intimately familiar with all of them. But I have a good idea it's a general pattern.

PN749

Could you describe for me, please, the general patterns that you have just referred to?‑‑‑At which facility and which employees?

PN750

So we're dealing with any worker to whom this agreement applies. Let's pick a facility. If you can nominate any facility?‑‑‑The Metropolitan Remand Centre.

PN751

Okay. Are there workers to whom this agreement applies who work only day shift?‑‑‑Yes.

PN752

Are there workers to whom this agreement applies who work other than day shift?‑‑‑Yes.

PN753

Those workers who work other than day shift, what are their patterns of work generally speaking?‑‑‑It's a hard question to answer because working a nine day shift doesn't mean that you don't work day shifts, so we work rotating rosters. So the pattern – there isn't particularly a pattern for work.

PN754

When say rotating rosters ‑ ‑ ‑?‑‑‑Yes.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN755

‑ ‑ ‑can you describe what a rotating roster is?‑‑‑That's a hard one to answer too, because it depends again on the facility and who's doing the rostering. It could be a mix of afternoon shifts, morning shifts, or overnight shifts, depending on the individual nurses' role, qualifications, scope of practice, and who's available.

PN756

You refer to afternoon shifts. There's no definition of afternoon shift contained in the agreement. What are you describing when you refer to afternoon shift?‑‑‑Generally it's after 12 noon, commencing, and it usually doesn't run till the wee hours of the morning. It's usually into the evening but not overnight.

PN757

So when you refer to nightshifts, what are you referring to?‑‑‑Again, it's a hard definition but the start times could vary, but it usually would go into the next morning.

PN758

What about shift length? What shift lengths are run at this facility?‑‑‑Various shift lengths. There isn't just one. It depends on what's being undertaken; what clinics are being run, and again staff availability.

PN759

Accepting that there are many different shift lengths, are there established shift lengths that are employed at various times for various reasons?‑‑‑Yes.

PN760

What are those established shift lengths?‑‑‑There's usually a standard – an eight hour shift and a 10 hour shift and a 12 hour shift.

PN761

Do day workers work each of those three shift lengths?‑‑‑They can, yes.

PN762

Non-day workers, can they also work each of those three shift lengths?‑‑‑Yes.

PN763

How does a person know - how does an employee to this agreement know if they are a day worker?‑‑‑They don't think of themselves as a day worker. They look at their shift and work it.

PN764

I'm not asking you to speculate on the state of mind?‑‑‑It's not terminology that we use in the organisation. Our nurses don't use that.

PN765

I'm not asking you to tell me what your nurses do?‑‑‑Okay.

PN766

You're using the term day shift?‑‑‑Yes.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN767

How does a person know if they are rostered on a day shift?‑‑‑Well, they look at their roster and see what hours they're working.

PN768

You accept there is a class of employee that only works on a day shift?‑‑‑No, it's a rotating roster. If I think of the MRC, no one is guaranteed only day shift. In fact they will have to work some other shifts.

PN769

So at this facility that we are talking about, there is no worker to whom this agreement applies, who only works day shift?‑‑‑I can't be certain that there's no one that's never had to work something else because we have very part – you know, minor part-time employees who may never get another shift, or they may have family circumstances that we cater for. I don't intimately know it because I don't roster for it, so but generally the principle being and it's in all our letters of offer is that they will be expected, at some stage, to work varying shifts.

PN770

In these letters of offer that you just described does it state that the facilities are 24 hour, seven day a week operations?‑‑‑For this particular one we're talking about, yes.

PN771

Does it state that employees may be required to work across the range of 24 hours a day, seven days per week?‑‑‑Yes.

PN772

In any of the facilities where there are workers to whom this agreement applies, are there classes of worker who work only day shift?‑‑‑Yes.

PN773

You say they work only day shift. What are you calling a day shift?‑‑‑I guess I'm defining it by the fact that the facility doesn't operate overnight. It's not a 24 hour facility, so just to expand on that, the varying start and finish times of service delivery times, so a shift that operates that isn't overnight I guess.

PN774

That's a definition that you personally apply to the term day shift?‑‑‑Yes.

PN775

At paragraph 21 of your witness statement you say that:

PN776

Correct Care has adopted the position that it is not required under the terms of clause 24.2(b) of the Nurses' Agreement to pay a 50 per cent shift work loading for all hours worked on a weekend.

PN777

Do you see that?‑‑‑Yes.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN778

When did Correct Care adopt that position?‑‑‑Correct Care adopted the position when Correct Care came into operate the business. That's the first opportunity we had as Correct Care to adopt any position.

PN779

So you are saying this position was adopted as soon as soon Correct Care took over the business?‑‑‑Yes.

PN780

When was that?‑‑‑It would've been – excuse me, I haven't got the dates right in front of me, but sounds terrible, I don't know if off the top of my head. The reason I don't answer it directly is because there's a management buyout that occurred but operational management occurred in July 2014 with the exception of payroll and industrial relations which occurred in July 2015.

PN781

What was the process by which Correct Care adopted the position that it is not required to pay a 50 per cent shift work loading for hours worked on a weekend?‑‑‑We read the agreement.

PN782

When you say "we" who are you referring to?‑‑‑The management of Correct Care read the agreement.

PN783

Who specifically?‑‑‑Well, myself and the executive management team.

PN784

Who is the executive management team?‑‑‑Do you want names?

PN785

Yes. I'm asking what process was adopted. You say "we read the agreement". Who is the "we" that you're referring to?‑‑‑The management of the organisation who had the ability to make decisions in relation to this matter. Myself, the managing director, other members of the executive management team read the text.

PN786

Did you have any meetings or conversations about that process of reading the text?‑‑‑I don't recall. Sorry, I don't recall. It was a while back.

PN787

Do you personally recall having any conversations with any person about the proper construction of clause 24.2(b)?‑‑‑No, I don't recall that.

PN788

Did you speak to anybody from GEO Care about why there had been a 50 per cent shift work loading paid for all hours worked on a weekend?‑‑‑Yes.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN789

Who did you speak to?‑‑‑Natalya Minchenko and Pierre Langford.

PN790

Were you informed by either – I missed Natalya's last name, I'm sorry, but either Natalya or Mr Langford that GEO Care had paid that shift work loading in that fashion for an extended period of time?‑‑‑We didn't talk about extended period of time. We looked at what they were paying when we commenced management of the organisation.

PN791

You accepted that they were paying that shift work loading when Correct Care commenced management?‑‑‑Can I just clarify, in relation to the weekend 50 per cent?

PN792

Yes?‑‑‑Yes.

PN793

You say that Correct Care considers that this is an over-agreement payment that had been made by GEO Care?‑‑‑Yes.

PN794

What does Correct Care say is the proper payment for weekend penalty rates under clause 24.2(b)?‑‑‑Well, you would have to apply the whole clause which is initially defined in 24.1. That's the first step, and if shift work doesn't meet that clause then anything paid subsequent to that is above what's required.

PN795

So Correct Care's position is that it is only required to pay a weekend penalty for a shift which is rostered to commence after 12 noon and finish after 7 pm on any day or before 7 am on any day?‑‑‑Yes.

PN796

Correct Care's position is that if a shift does not fall within that span it is not required to pay its employees any penalty for working on a weekend?‑‑‑To clarify, it's not required to pay any shift work in 24.2 if it doesn't meet 24.1, yes.

PN797

That position is also the case for public holidays; is that correct?‑‑‑Yes.

PN798

That on a public holiday, regardless of what day of the week it falls, an employee is only entitled to a public holiday penalty if they are working a shift which is rostered to commence after 12 noon and finish after 7 pm on any day, or finishes before 7 am on any day?‑‑‑Yes.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN799

So it is also true that for an employee working a public holiday not on a shift falling within that span Correct Care's position is that they are not entitled to the penalty set out under clause 24.2(b)?‑‑‑Yes.

PN800

That position also holds true for the 15 per cent shift allowance in clause 24.2(a); is that correct?‑‑‑Yes.

PN801

So again a worker who is not rostered on the shifts that I've been describing is not entitled to any shift penalty under clause 24.2(a); is that correct?‑‑‑Yes.

PN802

You say that you obtained a sample of timesheets from the time in attendance system known as GEO Time from the payroll system known as Infinium. How did you obtain that sample?‑‑‑We – before we exchanged ownership we had limited access to GEO Time and we took screen shots, because we knew we were going to lose access to the system, and in relation to Infinium data I sought that from Natalya. She ran a report.

PN803

How many records did you take screen shots of?‑‑‑Most of them. We got a temp to do it, so there's some missing, but ‑ ‑ ‑

PN804

But you have in this sample of timesheets from GEO Time the timesheets and payslips, the majority of the timesheets and payslips for the period, 24 December '12 to 22 June '14?‑‑‑No, we have the majority of timesheets. We don't have access to the payslips. I have to request those individually.

PN805

With the payslips how did you determine what to request?‑‑‑It was on a sample of timesheets and once I had the timesheets with the pay periods on it I could then request the relevant payslips.

PN806

How did you determine the sample of the timesheets?‑‑‑I tried to get a – it was no science really. I just tried to get a variety of employees to demonstrate a period of time, so I wanted some from early on before Time Target and then I wanted some after Time Target. So I tried to do a fair spread.

PN807

Did you look at those employees' timesheets before you sought their payslips?‑‑‑Yes.

PN808

For how many employees did you seek payslips?‑‑‑For the ones I put in the evidence. I don't know the number off the top of my head.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN809

So you did not seek the payslips for any employee other than those described in your witness statement?‑‑‑No - yes.

PN810

If we take for example then Cecil Dean's, in clause 13(a), you've produced a single pay record for Mr Dean in RL1?‑‑‑Yes.

PN811

Is that the only pay record for Mr Dean that you requested?‑‑‑Yes.

PN812

Why did you request that specific pay record?‑‑‑Because it had a public holiday in it, and there's a limited number of public holidays when any individual employee would work. I mean, they get shared around. There's not actually that many of them.

PN813

Did you know what Mr Dean had been paid before you sought the payslip?‑‑‑No. I had the timesheet record, so I had an indication of what according to a timesheet should have resulted in payment.

PN814

Did the timesheet contain an indication of what was going to be paid?‑‑‑Yes.

PN815

Did the timesheet indicate that Mr Dean was to be paid a 15 per cent shift work loading?‑‑‑Yes.

PN816

In relation Ms McPhee, you've produced a record for her, and again, you've produced a single record for Ms McPhee?‑‑‑Yes.

PN817

And that's the only record that you sought to be produced?‑‑‑For Ms McPhee, yes.

PN818

And that is because you were able to tell from the timesheet that there was no shift work loading indicated for the weekday public holiday, is that correct?‑‑‑No, that's not why I chose this. No, it's not correct.

PN819

Were you able to tell from the timesheet that there was an indication that no shift work loading was to be paid?‑‑‑Yes.

PN820

In relation to 13(c) we have Ms Macklie, and that is again the only record you sought to be provided for Ms Macklie?‑‑‑Yes.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN821

And the timesheet that you looked at gave an indication that Ms Macklie was going to be paid the 50 per cent shift work loading for hours worked on a weekday public holiday, didn't it?‑‑‑Yes.

PN822

Did you undertake any examination of how many employees for whom you had timesheets were paid 50 per cent shift work loading for hours worked on a weekday public holiday?‑‑‑No.

PN823

Did you undertake any examination of how many times it happened that an employee worked a weekday public holiday and was not paid any shift work loading?‑‑‑No.

PN824

Did you undertake any analysis of how many times an employee worked a public holiday and was paid the 15 per cent shift work loading?‑‑‑No.

PN825

So you are not able to say, are you, Ms Lee, whether the number of employees who fall within the three categories set out in paragraph 13 of your statement?‑‑‑As in each category, how many fell into each?

PN826

Mm?‑‑‑No, I can't tell you that.

PN827

But that information could be determined from the timesheets or by requesting the payslips?‑‑‑It's not quite as simple. It could be determined by the payslips. The timesheets give a good indication, but as you'll see in a couple of the examples, what is on the timesheet is different to what's on the payslip, and I think that came up in the last session that we had with Ray McDonald. It's an indication. There was a human process in‑between the timesheet and the payment, so it is only an indication.

PN828

You are not able to say the frequency with which employees were paid a 15 per cent shift work loading for hours worked on a weekday public holiday, are you?‑‑‑No.

PN829

And you're not able to say the frequency with which an employee was not paid any shift work loading?‑‑‑Yes, this is during GEO Time?

PN830

Yes?‑‑‑Yes.

PN831

And you're not able to say the frequency with which an employee was paid a 50 per cent shift work loading for the weekday public holiday?‑‑‑No.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN832

Did you make inquiries about those matters with anyone from GEO Care?‑‑‑Yes.

PN833

You have given evidence that Correct Care has continued to pay a 50 per cent loading for work performed on a weekend, is that correct?‑‑‑Yes.

PN834

Your evidence is that Correct Care does not believe it is legally obliged to do so?‑‑‑Yes.

PN835

If there were employees who had reported to my client, the ANMF, that they had not been paid, would you accept that they should have been paid that 50 per cent loading for work on a weekend?‑‑‑That's a loaded question. They don't - according to the tradition of how we've paid it, then yes. As to what's actually entitlement, no.

PN836

Again, you've raised it quite nicely - the tradition of what has been paid - accepting that has a particular meaning, if somebody fell within that tradition and had not been paid, would Correct Care remedy it?‑‑‑Yes, we would, absolutely.

PN837

You have given evidence that under GEO Care, the weekday and night shifts were paid the penalty was applied to the whole of the shift regardless of when it finished, is that correct?‑‑‑Can I just read what's in my statement?

PN838

Yes, of course - paragraph 17, Ms Lee?‑‑‑Yes, sorry. Yes.

PN839

You accept that Correct Care is paying that 15 per cent shift work loading differently now?‑‑‑Yes.

PN840

And that difference is that it is only paying the loading on that part of the shift that falls between 7 pm and 7 am?‑‑‑Yes.

PN841

Such that any part of the shift that spills over 7 am is paid at ordinary rate?‑‑‑Yes.

PN842

Again, you say that Correct Care is not required to make that payment, is that correct?‑‑‑Yes.

PN843

And that's for the reason we talked about earlier that the payment in 24.2(a) is limited to a shift that meets the description in clause 24.1?‑‑‑Yes.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN844

And if the shift is rostered outside clause 24.1, the worker is not entitled to any night shift penalty?‑‑‑Yes. It doesn't mean we don't pay it. It just means they're not entitled to it.

PN845

Not entitled to it under the agreement is your position?‑‑‑Yes.

PN846

You accept that a worker that commences a shift at 10 pm and finishes at 8 am on Correct Care's understanding is not entitled to any shift penalty?‑‑‑Not according to the strict interpretation of the agreement. There's a difference between what it says and what we may choose to do, but yes.

PN847

But you accept that on Correct Care's interpretation of the agreement, that worker is not entitled to any shift allowance?‑‑‑Yes.

PN848

But a worker that worked that same shift but finished at 6.55 am would be entitled to the allowance?‑‑‑Yes.

PN849

Can I ask you to take up the witness statement of Barry Megennis, which hopefully you have there?‑‑‑Yes, I do.

PN850

Can I ask you to go to exhibit BM4? I apologise, I don't think the exhibits are tabbed but it's quite some way towards the back, Ms Lee?‑‑‑Can you describe what it is, just so I can - - -

PN851

Yes, sorry, you should come to a page that looks like this, Ms Lee, that's marked exhibit BM4, and what you'll find behind it is a bundle of emails?‑‑‑Yes. Yes, got it.

PN852

If you could turn two pages in, so to the third page, which is - close towards the top you'll see the words, "Good afternoon, Narelle?"---Yes.

PN853

Do you know Ms Annelise Vainieri?‑‑‑Yes, I do.

PN854

You agree that she was, as her title suggests, the human resources and administration officer at Correct Care?‑‑‑Yes.

PN855

I should ask you, have you seen this email before?‑‑‑I saw it when I saw this statement.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN856

You've had an opportunity to have a look at it?‑‑‑Yes.

PN857

What I want to ask you about is sort of a bit of a table that says, "Narelle Standing overtime 200 per cent?"---Yes.

PN858

And then underneath that, Ms Vainieri has written:

PN859

A total of 96.5 hours was worked in this pay fortnight, and as you can see the shift worked on 13 March 2016 was entirely paid at overtime 200 per cent. This was because you had already exceeded 80 hours' work by the time you had commenced this shift.

PN860

?‑‑‑Yes.

PN861

I'm just trying to understand what's being said here. What are the ordinary hours of work for employees under the agreement?‑‑‑Seventy six.

PN862

And those - - -?‑‑‑Plus four reasonable hours.

PN863

Yes, 76 hours plus four additional hours?‑‑‑Yes.

PN864

And those hours, those 76 plus four are rostered?‑‑‑Yes.

PN865

How far in advance is the roster posted?‑‑‑It depends on the flight. I don't know that this particular facility, what it was, but it would have been in advance.

PN866

Are you able to be any more specific? Is there a general practice about how far in advance, or a minimum period?‑‑‑Unfortunately there isn't. Our preferred model is that it would be four weeks in advance.

PN867

The preferred model is four weeks, but it may not necessarily be four weeks?‑‑‑Yes, that's right.

PN868

And the roster when it's posted will show the location of all of the ordinary hours that are to be worked by that employee?‑‑‑Yes.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN869

And that might be 76 or it might be up to 80?‑‑‑Yes.

PN870

The employee can trust that that is their roster for the two‑week period to which it applies?‑‑‑Yes, unless it changes.

PN871

What are the sorts of circumstances in which somebody's ordinary hours might change?‑‑‑There's lots. Most of our changes are employee driven, so - obviously we get requests before the roster is put in but we get a lot of requests afterwards, people have got to play netball on the weekend and all sorts of things, we try to accommodate those. Firstly by them organising a shift swap but if not we'll organise it for them. It might be that someone else has come forward with some planned personnel leave, they say they've got a doctor's appointment, we will try and swap that. It could be that someone has resigned, there's a whole range of short term circumstances that may require Correct Care to seek an adjustment to what is, what was rostered ordinary hours.

PN872

I take it Correct Care has the power to alter somebody's roster without their consent if needs be?‑‑‑If needs be, yes, it's not preferred.

PN873

No of course I understand that. What you are describing to me is a process where you try and accommodate everybody consent?‑‑‑Yes.

PN874

But if required you've then got the power to make an adjustment?‑‑‑Yes.

PN875

The employee would be notified of that adjustment?‑‑‑Yes.

PN876

That adjustment is to the employee's ordinary hours of work?‑‑‑Yes.

PN877

Now, coming to shift work. How is shift work allocated? Sorry I withdraw that. How is overtime allocated?‑‑‑Again, it is often by preference. So we'll have availability and firstly go to our part time staff and ask if anybody would like to increase their hours. We will then go to casual or agency staff and as a last case we will approach full time staff and see if they're willing to work overtime.

PN878

If a person is allocated an overtime shift does it get added to their roster or are they notified separately?‑‑‑It gets added to their roster.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN879

So there will be a physical marking up or an electronic marking up of what has already been in place with the additional shift added in?‑‑‑Yes it's probably difficult to tell from just looking at the roster which is addition to be honest. We know because - the employee knows and the manager will know but someone like myself looking from head office, I would not know - I guess I could go into the back end and try and date stamp things but I wouldn't know just looking at the roster which is the addition.

PN880

There's no overtime notation added to it?‑‑‑No.

PN881

But the manager and the worker are going to know which was the additional shift?‑‑‑Yes.

PN882

When workers are paid what is the process from which a roster, just dealing with ordinary time at the moment, gets to payroll? Are they paid of the basis of the roster?‑‑‑They're paid off the basis of time shares which usually come out of the roster.

PN883

Does the employee fill out the time sheet?‑‑‑It's sort of a mixed process, so if nothing changes it rolls from the roster into a time sheet then the employee and the manager have the ability to then change it, delete it or add to the time sheet. So we manage by exception if you like.

PN884

Yes, so if something has changed between the roster being posted and the end of that fortnightly period, the worker and the manager will make that change and sign it or approve it.

PN885

MR HARRINGTON: I object to this line of questioning on the grounds of relevance. It might be fascinating to my learned friend but I really can't see, absent there being a request for all these documents to be produced and an examination of documents of this nature, it is really irrelevant, this whole cross-examination.

PN886

MS KELLY: That was my last question, so the answers are in. Coming back to this exhibit BM4. Do I understand from what Ms - and of course only tell me what you know, if you don't know you don't know. But can I understand from this email that whilst Ms Vainieri was communicating to this workers, was that their ordinary hours were treated as the first 80 hours they had worked for that fortnight with the overtime penalty being applied thereafter?‑‑‑Yes, I think that's what she meant but I'm not 100 per cent sure but, yes.

PN887

Without being 100 per cent sure that is your understanding of what was being said?‑‑‑Yes, I think that's what she is saying.

*** REBEKAH CHRISTINE LEE XXN MS KELLY

PN888

That is the cross-examination.

PN889

THE COMMISSIONER: Thank you Ms Kelly. Any re-examination, Mr Harrington?

RE-EXAMINATION BY MR HARRINGTON [12.50 PM]

PN890

MR HARRINGTON: You were asked a question concerning to this effect, if someone fell within what is technically referred to as the relevant period and had not been paid for the weekend work, the 50 per cent shift loading, you were asked would Correct Care remedy that? Your answer was yes. The form F1 application in this matter is dated 20 February 2017, so we are now getting close to 20 September 2017, some seven months later. In that time period between 20 February 2017 and today's date, how many employees have come forward and said either to you or have you seen an email or a question, that they be paid a 50 per cent loading for work they'd done on a weekend?‑‑‑None.

PN891

Thank you no further questions.

PN892

THE COMMISSIONER: Ms Lee, thank you for your evidence. You are released you may step down.

<THE WITNESS WITHDREW [12.52 PM]

PN893

MR HARRINGTON: That is the evidence, that is the case. I am not calling any further witnesses. I think the documents are all in, attached to that statement so that is the evidence and I close my case.

PN894

THE COMMISSIONER: Thank you Mr Harrington. Ms Kelly.

PN895

MS KELLY: Thank you, Commissioner, we move to submissions but given the time I am wondering if we might break early for lunch and perhaps come back early, if that would be convenient to both you and my learned friend. I indicated to my learned friend that I think submissions will take one hour but he seems dismayed that I am not going to talk for longer. So I'll do my best - - -

PN896

MR HARRINGTON: Although my learned friend is a trained observer she has misunderstood that, I am not sure if she meant an hour for both of us or just an hour for you - an hour for you? An hour for both of us, yes, that's fine. yes, I think that's about right, half an hour each would probably see it out.

*** REBEKAH CHRISTINE LEE RXN MR HARRINGTON

PN897

THE COMMISSIONER: Right.

PN898

MS KELLY: So we may not need to come back early but I am notorious for getting estimates wrong. I am not going to tarnish my learned friend with the same brush but we are members of counsel.

PN899

THE COMMISSIONER: I know.

PN900

MS KELLY: We would like to finish today I think is the general consensus among all in the room.

PN901

THE COMMISSIONER: You should see the look on Mr Harrington's face about that one, Ms Kelly. I think that's a shared interest and I think what I'm hearing is it is a question, if I can translate, it is do we come back at two o'clock or do we come back at quarter to two? Really, I think those are the two options.

PN902

MR HARRINGTON: Quarter to is fine for me, if it is okay with you Commissioner.

PN903

MS KELLY: And it is fine with me, Commissioner.

PN904

THE COMMISSIONER: Two o'clock. I will adjourn until two.

LUNCHEON ADJOURNMENT [12.54 PM]

RESUMED [2.02 PM]

PN905

MS KELLY: Thank you, Commissioner. I'm going to very quickly come to the words of the agreement, which is where all of this begins and ends, but I did want to say something very briefly about the law first. My learned friend and I are broadly in agreement about what the legal principles are and so I am going to rely on what is in our written submissions for that purpose, save that I want to say something about the issue that arose this morning about when we can use extrinsic material.

PN906

I don't actually know that my learned friend and I are as opposed as we might seem. If I could ask you to take up the Berri decision, which is in the folder that you kindly gave me this morning.

PN907

THE COMMISSIONER: That's okay.

PN908

MR HARRINGTON: We have got the one from the witness box.

PN909

THE COMMISSIONER: Do you?

PN910

MR HARRINGTON: That has all the authorities in it, as well.

PN911

THE COMMISSIONER: Brilliant. Thank you.

PN912

MR HARRINGTON: So that's probably going to help you.

PN913

MS KELLY: If I could ask you, Commissioner, to turn to paragraph 62 of that Berri decision. We say the proposition being set out here is that:

PN914

Admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts.

PN915

That is uncontroversial. That is Codelfa. Then in 63, there is a description of what was laid out in Golden Cockerel. I've got a copy of that decision if it's necessary.

PN916

Evidence of relevance to the objective framework of facts will include –

PN917

relevantly for our purposes -

PN918

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed.

PN919

They are categories of objective background facts that are admissible. Then, at 64, we see the purpose for which they are admissible and this again is going back to Codelfa.

PN920

Facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

PN921

Then it goes on to say where –

PN922

prior negotiations will tend to establish objective background facts which were known to both parties...they are admissible. But insofar as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations –

PN923

they are then not admissible. We say that the evidence of the bargaining meetings don't go in as evidence of what my client was subjectively trying to achieve, but go in as evidence of a negative; as evidence that neither side raised an issue about the construction of the clause. It goes in for a negative purpose, but the fact that was known to both parties is – or the facts, plural, (1) clause 23 was in the terms it was in; (2) neither side raised a claim in bargaining about the content of that clause; (3) it's clearly a notorious fact that clause 24 is in the same terms. We don't rely on it to establish anything to do with the subjective mutual intention my client.

PN924

THE COMMISSIONER: Okay.

PN925

MS KELLY: I then, just to buttress that point, want to go back to Golden Cockerel where this is said:

PN926

Regard may, therefore, be had to evidence of the surrounding circumstances before the existence of ambiguity in an agreement is identified as an aid to interpreting the agreement for the purposes of determining whether an ambiguity exists.

PN927

These are separate points, but this is what is said in Golden Cockerel:

PN928

If, thereafter, ambiguity is not identified, extrinsic material cannot be used to contradict the language of the instrument.

PN929

It's slightly more nuanced than saying we simply can't have regard to extrinsic material. You can put in extrinsic material of the kind I've just described - things that go to objective background facts – to demonstrate ambiguity, but if once you've done that the ambiguity doesn't arise, you can't then rely on the extrinsic material to countermand the clear words of the agreement. What was said is:

PN930

If ambiguity is identified, the material may be used as contextual material to aid in the interpretation of the instrument.

PN931

That was the approach said to be laid out in Codelfa and aligned to what the High Court had said in Woodside v Verve Energy. We say you are entitled to have regard to it to the extent it is objective background facts for the purpose of determining whether ambiguity exists, as well as in relation to the later task of determining what course might be taken. Would you be assisted by any further address on the law or are you content with the principles that we have set out?

PN932

THE COMMISSIONER: Thank you.

PN933

MS KELLY: Let us come then, as we really must, to the agreement itself, Commissioner. If I could ask you to first turn to clause 21 of the agreement. 21.1.1:

PN934

At a number of centres, the company's usual operational requirements are to operate 24 hours a day for seven days per week.

PN935

We heard that from Ms Lee, as well. Not all of them work overnight, but some of them do. 21.1.2 – and this clause, Commissioner, is absolutely critical – the structuring of hours is going to vary, but it's normally going to consist of one of three patterns. The word "patterns" is important because this isn't a definitional clause. This is describing a mode of working; a pattern of working.

PN936

We've got three options. Here is what the normal pattern is going to look like in these centres: Day shift - and Ms Lee told us that there are workers who work traditionally what we would call day shift - then shift work, whether rotating or non‑rotating, and seven‑day continuous shift work.

PN937

THE COMMISSIONER: (a) says, "Day work."

PN938

MS KELLY: Yes.

PN939

THE COMMISSIONER: You described it as "day shift".

PN940

MS KELLY: I apologise. Yes, "Day work." I was aligning the two concepts. We're not dealing with a definition here of what is day work.

PN941

THE COMMISSIONER: No.

PN942

MS KELLY: We are dealing with a description of a pattern of work, so the pattern is going to be day work and that describes what we would traditionally know as a day worker. The other two available patterns are shift work, rotating or non‑rotating, and seven‑day continuous shift work. When we are talking about what patterns of work are these workers going to do, we've only really got two concepts. They're either going to do a pattern of work comprised of day work or a pattern of work to be known as shift work. It is effectively binary, although there is a number of sub‑classes of shift work, and that is how this agreement is to be structured.

PN943

Now, what we then see in 21.2, which deals with working hours, is that we have a maximum shift length of 12 hours in any 24‑hour period, but we do not have – and you won't find anywhere in this agreement – a span of ordinary hours. So the award we know has got a 6 am to 6 pm span; this agreement removes that span of ordinary hours. You can work your ordinary hours at any time of the day, seven days of the week. We're seeing that this agreement is structured for this particular workplace.

PN944

We then come down to clause 24 and this is where we say the ambiguity arises. What we see in 24.1 is a statement that, "An employee may be required to work shifts", and then a definition of what the word "shifts" is. Now, as my learned friend took Mr Megennis to in cross‑examination today – and I'm going to come to the award in a moment – that appears to be an amalgam of the definition of what would traditionally have been an afternoon shift and a night shift. Because there is no definition of day shift, afternoon shift or night shift in this agreement, I think the inference is open that the move away from that traditional shift pattern resulted in a clause that amalgamates the two concepts and tries to simply just deal with it as a shift being other than a day shift.

PN945

Then we come to the second sentence which talks about shift work which can be worked on "fixed shift or rotating shift basis" and which "may include rotating shift work on a roster 24 hours per day, seven days per week." That links back to clause 21.1.1 which tells us what our patterns of work might be. We're going to have a pattern of day work or a pattern of shift work.

PN946

We then come to 24.2 and the magic four words that are at the heart of this entire dispute, "While performing shift work" an employee will be entitled to these loadings. Now, we say there are clearly two meanings open here, Commissioner. On one reading – and this is the reading that we know from Ms Lee's evidence is the one advanced by Correct Care – the words "while performing shift work" mean that the loadings apply only while you are performing a shift as defined in clause 24.1.

PN947

Unless you are on a shift which is rostered to commence after 12 noon and finishes after 7 pm on any day or before 7 am on any day, you are not entitled to any of the allowances that are set out below. That is one interpretation that is open. The alternative interpretation, which is the one my client believes was intended, is that the allowances apply while an employee is working a pattern within the meaning of clause 21.1.2 that is shift work. Whether it's shift work that's rotating or non-rotating or seven-day continuous shift work, that reference in clause 24.2 can be read as a reference to the descriptor of a pattern in 21.1.2.

PN948

I will demonstrate to you, Commissioner, why that second construction is open to establish the ambiguity. We think it's fairly plain on its face that those two readings are available but there are two things more than anything else, and I rely generally on our written submissions but I want to take you to two things that more than anything else should convince the tribunal that the ambiguity that we contend for exists. And I would ask you to take out, Commissioner, the modern award and start with clause 22 where we see the span of hours I referred to earlier, 6 am to 6 pm, that's our usual span of hours for ordinary hours of work. And then 22.2 which tells us that for the purposes of the award a shift worker is an employee who is regularly rostered to work their ordinary hours outside of the regular span. So it's just anybody that on a regular basis doesn't work day work and that's a fairly ordinary and orthodox definition of shift worker.

PN949

Then if you could turn over to clause 26, and this is critical, clause 26 prescribes the penalties payable under the award for Saturdays and Sundays, and you'll see a 50 per cent penalty paid for midnight Friday to midnight Saturday and a 75 per cent penalty paid for midnight Saturday to midnight Sunday. Critically you will observe that those penalties are not payable only if you are working a shift. They are payable for all ordinary hours regardless of the time of day that they are worked. So whether they fall within the span or otherwise the loading is to be paid, and it's a loading of 50 per cent and a loading of 75 per cent.

PN950

Then if I could get you to turn across to 32, we see that the payment for public holidays under the award attaches to all work done by an employee during their ordinary shifts on a public holiday. So if you are working on a public holiday, all work done by you will be paid at the rate of double time.

PN951

If we start with that as the award minima, what we then see when we look at clause 24.2 is this. 24.2 is the only place where we will see in the agreement a shift loading prescribed. It is the only place that we will see a weekend penalty prescribed and it's the only place we're going to see a public holiday loading applied. So if the contention of correct care was right, what we would see is that in addition to abolishing the span of hours, so 6 am to 6 pm is gone, we're doing 24 hours a day, seven days a week.

PN952

In addition to removing that award protection we also see a reduction in the penalty rates that are going to apply on a weekend because the rate is only 50 per cent. We see a reduction in the span in which the rate to be paid for weekends, so instead of being paid at any time on a weekend it's only paid if you are working this narrow shift, and we see that instead of a payment for all time worked on a public holiday, again we have confined it back to - you only get it if you are working in this very narrow shift.

PN953

And so we ask ourselves with knowledge of the award, which we can presume people had, was it truly intended by the parties to this agreement that workers who under the award enjoyed a penalty for all ordinary hours on a Saturday and a Sunday including on a higher rate, who enjoyed a penalty for all hours worked on a public holiday, that they would have that entitlement reduced to the limited span of hours we see described in clause 24.1. And the answer to that as a matter of pure common sense, we say, is absolutely and unequivocally no. It would so substantially reduce the benefits that these workers were entitled to under the modern award that it cannot have been in the contemplation of the parties that that is how this agreement was to be construed.

PN954

That is supported by the matters set out in the table that I have provided you with, Commissioner, where we see for example that there has been, and has always been, a 50 per cent penalty paid on weekends regardless of whether or not the work was performed within the spread of hours seen in clause 24.1.

PN955

I have got another copy if would assist. So it's the second row, Commissioner, and I've chosen it because it's a row about which there is no disagreement in terms of the payment model. This is entirely consistent with the 2009 payment method. We have put evidence before you that nothing was said in the 2013 negotiations and it has continued to be paid although Correct Care now says it's a generous above award entitlement.

PN956

On that point I asked Ms Lee whether she had spoken to people like GEO Care about the way this had been paid and she said yes. There has been no evidence called by the respondent from anybody who can tell us why GEO Care paid the entitlement in the way that it did, and the Commission is entitled to draw an inference from that, and we would encourage that inference to be drawn.

PN957

We say, of course, that it is also consistent with the 50 per cent for hours worked on a weekday public holiday. Correct Care says there has been variable payment but as the evidence of Ms Lee showed us, only one pay record was sought for each of the three employees, and for each of those three employees the payment method was indicated in provisional form on the time sheet. There was no analysis done of whether or not there was generally speaking a 50 per cent payment with some aberrations that might be attributable, for example, to error. It was simply a circumstance where three examples were pulled out that had different payment methods, and from that my learned friend will ask you to extrapolate to say that there was this general variance in payment. That is not what the members of the ANMF tell the union.

PN958

So we have this circumstance where if Correct Care's interpretation were correct, it would be completely at odds with the minima statutory entitlement set out in the award. We have, certainly insofar as weekend work goes, a consistent payment method across two enterprise agreements that is wholly consistent with the construction being advanced, and the potential for a second payment method to be wholly consistent until it is changed.

PN959

The third thing that we have, Commissioner, is what we say are absurd results and they do derive from the differences between the award entitlement and the agreement entitlement, but it would leave, as I have indicated, an employee working a public holiday morning shift with no public holiday entitlement at all. It leaves a worker performing an ordinary morning shift on a weekend with no weekend entitlement at all in the face of the very significant benefits that are available under the award.

PN960

It also has the odd results that we have set out in our written submissions, some of which I took Ms Lee to, that a worker performing a 12 pm to 8 am shift will get nothing while a performing midnight to 6.55 am will, and they are the type of absurd results that we say demonstrate that there is this ambiguity that sits at the heart of the way this clause came to be.

PN961

We are going to generally otherwise rely on our written submissions about that question, Commissioner, but I do then want to deal with why we say the Commission should exercise its discretion to vary. We say the consistency of practice between 2009 and 2013 is sufficient to enable the Commission to give effect to the objective mutual intention of the parties.

PN962

It is true that there is no magic document that helpfully tells us what that objective mutual intention is, but of course there never is, Commissioner. It is a concept that has very little practical utility, but what we do have is the evidence of consistent payment and that is not countermanded by anything that the respondent has chosen to put before the tribunal. We have the agreement negotiation process in which we are entitled to assume that the prior payment was a matter notorious and known to all parties, and we have the minutes which demonstrate that nobody attempted to change or raise any issues with this construction or application of the agreement, and then of course we know that the agreement was then approved.

PN963

We know also that there was no change in the manner of practice until after Correct Care took over. That is very clear. The precise date about when it happened is neither here nor there but we know from Ms Lee's evidence that what happened was Correct Care took over, there was a 12-month period between the day they took over in '14 and the date in '15 when GEO Care retained responsibility for payroll. And then in 2015 Correct Care assumed responsibility for payroll with its new payroll system, and at that time the changed practices set out in the table were applied, but also at that time we know that Correct Care said "We will continued to make these other payments but we're doing so because we see them as being above award, above agreement entitlements paid by GEO Care and we elect as a matter of our discretion to pay them that way".

PN964

You might say, well, to that extent there is only a very small dispute which is weekday public holidays where the money is not currently being paid when my client says it should be, so why vary it. And the problem is that these are entitlements that my client says its members bargained for, and it is in bargaining now and I won't tell you what's happening in bargaining because there's no evidence of it, but my client's members should be entitled to bargain from the position that they hold based on things previously gained.

PN965

The new interpretation adopted by Correct Care deprives them of, on our case, a benefit that they had bargained for in 2009 and retained in 2013 and that is a substantive and powerful reason why, if you are persuaded the ambiguity is there, you should exercise your discretion to vary the agreement.

PN966

Now we had provided to you, Commissioner, a form of variation. I would be content if rather than the deletion of clause 24.1, we simply had in clause 24.2 the current form of proposal but after the words "employee" the insertion of the words "performing shift work within the meaning of clause 21.1.1". That would also achieve the aim that we are seeking to achieve but would not require the deletion of clause 24.1. It could remain there as a definitional clause of a shift is but not as the over-riding definition of what shift work is because the two concepts are of course very different.

PN967

Other than to that extent we rely on our written submissions on that question. I need to say something about the overtime issue, it is clause 23.3. We say the ambiguity does arise on its face for this simple reason. All time worked by the employee in excess of full time hours, as set out in clause 21.2.1, shall be paid for at a rate of time and a half for the first four hours and then double time thereafter. That does not tell us whether full time hours that count for full time hours is to include all hours worked in the fortnight or only rostered ordinary hours.

PN968

What we have seen, and I accept there is limited evidence of this but you will find it in BM4 where the method of payment was set out for a particular employee. Correct Care says, well, we will treat your full time hours of work, so your 76 plus four additional per fortnight, as being whatever the first 80 hours you work in the fortnight are. So if you are rostered Monday, Thursday, Friday, Saturday and you pick up an overtime shift on Tuesday and Wednesday we will count the Tuesday and Wednesday in your ordinary 80 hours and we apply any overtime at the end of the week.

PN969

We say what it means is hours worked in excess of your rostered ordinary full time hours of work. So that in the scenario I just described your ordinary hours of work are Monday, Thursday, Friday, Saturday and you pick up an overtime shift on the Tuesday and the Wednesday and they are the hours for which the overtime rate is paid. Now, why does it make a difference? It makes a difference because if the count starts and just works on pure hours worked regardless of whether it is ordinary time or overtime, when we get to the end of the fortnight and we've got what were ordinary hours in the roster on a weekend, we don't get the overtime penalty and the weekend penalty, they don't double up, we only get the overtime and it's a lower rate. So there is a material financial disadvantage to the employee on the method adopted by Correct Care.

PN970

We say that the ambiguity is because it is not clear when the full time hours of work count is to start and it is not clear whether it includes only those hours that are rostered, the rostered ordinary hours or it includes every hour that is worked regardless of whether it is ordinary time or an additional shift that has been picked up after the roster has been posted.

PN971

It is true, Commissioner, that there is no evidence of what the objective mutual intention of the parties is, that is undeniable. Nor could there be in a circumstance where it did not come up in bargaining, so no one had anything to say about this clause that gives us any guidance about what the mutual intention of the parties was, apart from my friend here. If there is an ambiguity that is masking the proper construction of a clause then it can be resolved, it can be resolved.

PN972

But I want to say three things in sequence. It is open to you, Commissioner, to say that this clause isn't ambiguous. On one version, one view the words "in excess of full time hours of work as set out in clause 21.2.1", are plain. You work 80 hours a fortnight, they are rostered hours. Overtime is anything worked outside your 80 rostered hours and it doesn't matter whether it happens to be the tenth hour or the 40th hour or the 50th hour, if it is an additional shift it is an overtime shift.

PN973

If you took that approach then my client is perfectly content because it can then say to the employer, well, the method you are adopting is inconsistent with the plain and ordinary meaning of the clause. If you are persuaded that is ambiguous then whether or not you vary it we have that finding and that enables my client to deal with the matter, whether by bargaining or some other means.

PN974

I said I would only be half an hour and I have been 38 minutes which is pretty extraordinary for me, Commissioner. Can I assist you with any other submissions because otherwise we will rest on our written materials?

PN975

THE COMMISSIONER: Could you just - I mean, I will read the transcript anyway, but just between now and when it comes, the last two points you made, what was the penultimate, what was not the last one but the one before, please? You said, if the Commission - the last one was if the Commission finds it ambiguous the Commission can just sort of say that but not exercise its discretion - - -

PN976

MS KELLY: Yes, it certainly can.

PN977

THE COMMISSIONER: The one before that.

PN978

MS KELLY: That it is open to you, I am struggling to remember the order in which I said things. It is open to you to tell us that there is no ambiguity.

PN979

THE COMMISSIONER: Yes, and that it means X?

PN980

MS KELLY: Yes, precisely.

PN981

THE COMMISSIONER: Which could be different to the way it is actually being applied.

PN982

MS KELLY: That's right.

PN983

THE COMMISSIONER: That is what I thought you said.

PN984

MS KELLY: Yes. So I was putting to you that - my client's fundamental position, Your Honour, is that this clause is quite clear. You get overtime in addition to your rostered ordinary hours of work. You have a roster, it has got 80 hours in it, it gets posted somewhere about four weeks in advance. If you pick up an additional shift that is not in your roster, that is an overtime shift. That is my client's fundamental view about how this works, that the words - let me go back to them, 23.3 - "in excess of full time hours of work as set out in clause 21.2.1". We go back to 21.2.1 it is 76 per fortnight plus reasonable additional hours and then elsewhere in the agreement - I can't put my hand on it - - -

PN985

THE COMMISSIONER: 21.2.4 it says they'll be rostered. That's the one you are looking for.

PN986

MS KELLY: Thank you, that is precisely where I was going. So we know what ordinary hours are because they're in 21.2.1, they're rostered because we see that in 21.2.4, an overtime shift is an additional shift that sits outside that and should be paid accordingly but that is not what the employer does. It says, whatever your first 80 hours worked are, regardless of whether it was on your original roster or it has been added later they're the first 80 hours, you don't get overtime for those and it's only if you then go over at the end of the fortnight that you get overtime paid.

PN987

So in the example I gave, if you picked up a shift on Tuesday, being the second day of the fortnight, that would not be considered an overtime shift. It would become part of your ordinary hours of work and you'd overtime at the end. So it is open to you, Commissioner, to say, sorry ANMF, there is no ambiguity here because it means this and that is quite clear. Which is an outcome that is perfectly acceptable to my client because the difficulty arises from the way that the employer is interpreting and applying the clause.

PN988

Alternatively, you can say no, this is ambiguous but if I don't have enough material before me to determine how to vary it, I am going to go no further than to say that I accept that there is an ambiguity. That is still an outcome for my client in terms of working out how to deal with the situation that has arisen.

PN989

THE COMMISSIONER: Thank you.

PN990

MS KELLY: Thank you, Commissioner.

PN991

THE COMMISSIONER: Mr Harrington. I am not going to hold you to half an hour.

PN992

MR HARRINGTON: Or 41 and a half minutes.

PN993

THE COMMISSIONER: Or anything, just midnight, all right?

PN994

MR HARRINGTON: All right, thank you Commissioner. This application ought be dismissed and you can do that today. It is wholly unmeritorious, it is misconceived and we've found out listening here today in closing arguments, it involves a moving feast. My learned friend blithely informed the Bench that, look, when it comes to the proposed variation, particularly as she put it, if you really want to you can leave in clause 24.1 but I'll just take some changes to clause 24.2 now. It is a complete moving feast.

PN995

Putting to one side whether that is a fair way to conduct the application because we are entitled to know from February what relief is sought, but we are now here in September and we are finding out, the relief sought actually has changed since this document was produced. It is a complete moving feast, it defies all orthodoxy and you ought reject this application.

PN996

One way to get there is to study closely how this case has been developed or advanced from 20 February, when the application was drawn, because it's quite a full application, you will see the reasoning process. In fact if you sit there and look at the application in February and look at my friend's submissions on about 3 July I think it was, you will see there is very little change, either all the work has been done at the start or no work has been done to put the submissions in later because nothing new is being said because there has been no harnessing or tackling of the fundamental issue here. Yet we get here today and we are hearing a whole different tack has developed.

PN997

That permits me properly to make the submission that something else is going on here, that there is a rank opportunism to this sort of application and I make that submission in this context, Commissioner. There are two points generally speaking in terms of this opportunism which will ultimately inform your discretion if you come to that. First of all the Lee statement which we rely upon which was almost entirely unchallenged. Ms Lee gave evidence that Correct Care effectively acquired or took over the business in February 2014, that is at paragraph 7 of her statement.

PN998

It was in August 2015 that the new payroll system was introduced, that is at paragraph 8 of Ms Lee's statement. So in August 2015 apparently things start changing or changing dramatically and people start saying, we are being ripped off and not being paid properly. The application is made to this Commission in February 2017, some almost 18 months later.

PN999

Two things emerge there, one, if it so dire, so bad and so unfair why have you sat on it for 17 to 18 months? Secondly, the agreement itself which expires on 7 October 2017, which we can all do the maths on that, is less than four weeks away, in fact it is 26 days away until this agreement expires, that at clause 43 of the agreement itself - and this is not at all radical or unusual - it says six months before the expiration you should start talking. It says:

PN1000

The employer is covered in this agreement and the employer shall begin discussions six months prior to the expiry ... with a view to expeditiously preparing for the next agreement.

PN1001

Nothing wrong with that. That's not unusual and it's not remarkable. That of course is the date of 7 April 2017. So what we see here is an unmeritorious application seeking to undermine and challenge an agreement that has been in place for some considerable time, that when a new owner comes in in 2014 and changes the payroll system in 2015, there is barely a whisper or an issue raised at all for 17 months, and suddenly we're in the Commission two months out from the negotiation of the new agreement starting and here we are - and I agree that there has been some delays along the way, but here we are on the cusp of expiration of the agreement in the full shadow of the present negotiation.

PN1002

Neither of us properly are going to go into what is happening in those negotiations because all sorts of things happen in negotiations that are without prejudice unless you're here today trawling through meeting records and trying to work out what did happen in the negotiation. But in any event the parties are now on the cusp of this negotiation and yet my client is faced with "We're going to bring this application. We're going to be in the Commission. We're going to in February and July set out our general case. We're then going to change our position slightly with the one page that we're ordered to provide in terms of the variations we want and then we get to the final hearing and closing argument, and we're going to say 'Well, we're pretty relaxed about how we might vary it. We might vary it separately or differently'".

PN1003

It just beggars belief and it makes one in the forensic setting consider at a deeper level what really is going on here in all the circumstances. Is there true merit to the position being advanced by the applicant in this application and in my submission, Commissioner, and this is the conclusion of my opening remarks, it is unmeritorious and there is no merit for the reasons that I'll now address you on.

PN1004

In these oral closing submissions the first proposition I'll advance is that there is no ambiguity in respect of clause 24.1 and 2 to the extent that's relevant, and clause 23. One could sit back and reflect upon the nature of the evidence and the argument today and think this is a one trick case, that it's all about clause 24.1. But as my learned friend really addressed you as an afterthought, there's a whole 23.3 issue sitting out there which I tried by way of application after the close of my learned friend's case to have dismissed. But there are actually two clauses that are being attacked, one in a more developed sense, the clause 24.1 alleged ambiguity, but 23.3 quite frankly is highly disingenuous.

PN1005

It is not supported in the evidence and even the way my learned friend addressed you in closing it is a mere afterthought that should not really tax you terribly much. Because if you go to the application itself and then you go the outline of submissions it's barely developed. Mr Megennis has almost nothing to say about the background of 23.3. Again here we are having to waste our time addressing that, 23.3, which is nothing more than a diversion. As I said, the first contention is that there is no ambiguity in either of these clauses. You will assess the objective framework of facts, to quote from a number of cases.

PN1006

The objective framework of facts is what you will address and in reading the clauses themselves you'll take a clear eyed approach and a clean textural approach within a context in assessing what does the language of the agreement itself tell you. What is it saying? Does it make sense? Is it logical, does it follow on a fair and plain reading? Because as you're well aware from the quote that I raised in opening from the High Court, it's text, context and purpose. That's what you need to do. It sounds simpler than it is of course, but that's the guiding principle.

PN1007

The second submission that I'll develop is that if you do find there is ambiguity, which we vigorously deny there is any such ambiguity in either, when it comes to clause 24.1 and 2 and you are considering the proposed variation and whether you should exercise your discretion having found the ambiguity, you will have regard to the paucity of evidence that ties in directly to why, Commissioner, you should delete out the entirety of clause 24.1. But I make that submission not knowing now whether that's in fact the position that's being advanced.

PN1008

My learned friend I think is putting alternatively you can take out 24.1, or alternatively you can just fiddle around with 24.2 and add some other words in here and there. I'm going to address you on what I've been given and what I've prepared to address you on, which is this document, the one page document that was provided to us after the last hearing. The reality is this. If you strip out and denude this agreement of clause 24.1 you remove any marker or definition of shift work. There is simply nothing really in the agreement to give the reader of the agreement any toehold to understanding what a shift is and what a span of hours might be in respect of shifts. Yet that's what is being advanced by my learned friend, "Take it out. Take it out and leave the rump of 24.2."

PN1009

Finally as a headline issue the third significant issue which is tied to the ambiguity question and what variation you might consider making, it is a question of discretion as you well know. Again we're ad idem on the authorities here. What I advance and press in respect of the submissions on behalf of the respondent is the factual case adduced is so weak you can't know truly what the parties intended in respect of 24.1 or 23.3 in the context of this variation that's sought. You'll recall from what I'll call the strikeout application that I made under section 587(1)(c) in respect of 23.3 I urged you to effectively start with what is sought.

PN1010

Start with the relief sought, the variation that's sought, and then look back and review forensically how the case has been put. The first step remains what it is. Is there an ambiguity. But when you are looking at this variation - sorry, at this relief that's being sought, the nature of that variation, you will automatically start to ask yourself "Well, supposing there's an ambiguity. Why do they get this? Why do they get a change of that nature?" and that's where my learned friend falls off the cliff into a deeply vexing sea because why would you, if you look at this one page document, start to tinker with this agreement in this way on the death knell of the agreement. It's going to expire in 26 days' time.

PN1011

To the extent that that my client has been paying in a way that is offensive to the applicant's members, that has been extant or been in place since apparently 1 August 2015 and there has been no speed to remedy that or do anything about it, and now we're jumping up and down in the middle of the clause 43 ordained period of negotiation leading to the expiration of the current agreement. It's a very strange contextual state of affairs to be conducting this application at least temporally in this context and in this way.

PN1012

Can I urge you, Commissioner, to start with our written submissions and we do rely upon them and it's for this reason, and it's lucky for all of us it's an expeditious way forward or efficient way forward. We filed the submissions on 17 July. We subsequently received just before the hearing, I think it was 1 August or thereabouts, Mr Megennis' statement. But I can say with great force from the Bar table, nothing in Mr Megennis' statement affects any submission that we made two weeks before getting that statement.

PN1013

There's nothing that he advances in the written statement that causes any difficulty to the case that we advanced in writing two weeks before that, and that's why I rely heavily on the written submissions. Furthermore, speaking to Mr Megennis as a witness here today, and it's not a question of credit or whether he's telling the truth about anything, it wasn't one of those sorts of cross‑examinations, he for his sins finds himself in the hot seat because someone else who seems to have started this process has handed that over, be that as it may.

PN1014

He doesn't have a good strong personal working knowledge of what the real issues are in terms of alleged ambiguity and who should be getting which payments. He said he didn't agree with some of the things that Ms Lee had asserted in her statement. He didn't agree that everyone was being paid 50 per cent shift penalties on the weekends but he did agree that she had said they were, but he says he just didn't agree that that was the case. But he couldn't tell you why it was that he couldn't agree with Ms Lee, and then we move forward to the cross‑examination of Ms Lee.

PN1015

She wasn't challenged on any of this. No name was put to her, no grouping of employees, nothing was put to her that her statement was incorrect or misleading, or she had somehow just made a mistake about what Correct Care had been paying. She wasn't challenged on any of this at all so the submission I make there is Mr Megennis clearly is an honest witness but his statement and the evidence he seeks to adduce is of such limited value to you in all the circumstances, and allied to that Ms Lee was not seriously challenged on any of her assertions in the statement that she gave, so her evidence is to be preferred.

PN1016

Frankly I barely understood the cross‑examination about the samples. I'm not saying it was an attack on her, it was an exploration of what samples. Can I just say of that if my learned friend gets up in hopefully a brief reply and encourages you to make a finding about Ms Lee's conduct in obtaining information and apparently sampling pay records and the like, it was always open to the applicant, the ANMF, from when we were last here and after they received Ms Lee's statement to say "Hang on a second. If you're going to take a limited sample like that, we say that's a distortion or not representative".

PN1017

It was always open to write a letter saying "Can you please produce a lot more pay records for us. We want this time period. We want everyone who worked on a public holiday on a Saturday and everyone who worked Anzac Day" and whatever else. There was never any request for that sort of information. There was no reply statement from Mr Megennis. That's not his fault. He gave his first statement. He read Ms Lee's statement. The legal advisers, and there was a number of them at the Bar table today, they've all read it. There was no reply material filed seriously contesting anything that Ms Lee attested to in her statement.

PN1018

So going back to the reliance on the outline of submission that was filed by my client, as I have submitted already - it's at tab 6 of the folder, the respondent's outline of submissions. I'm not going to read them out to you. I do rely upon them for the articulation of principle and I'll jump forward just briefly because I'm here looking at them, and paragraph 9.9 is highly relevant to the question. If you do find ambiguity, and we say you ought not, but if you do and you are contemplating exercising your discretion to vary, this submission:

PN1019

The legislature has not proposed in the Commission's jurisdiction to impose a new term or condition upon the parties. That is not the function of the Commission exercising its power under section 217 of the Act. It is not the role of the Commission to vary a clause of an agreement upon an evaluative basis so as to ensure a fair or equitable outcome. Any variation must necessarily reflect the established intention or will of those persons who made the agreement that the variation will do no more than correct an imprecision or uncertainty.

PN1020

That's the power that the legislature has given you, Commissioner, and it's a significant one. To come in later and to say "Well, look, I find that on its face there's something ambiguous here. It's unclear what was intended. I've received evidence of the surrounding circumstances, some of the negotiation meetings, how they negotiated this clause. There's an imprecision in the language that has led to this dispute about what it means. I'm going to find in accordance with the evidence I have received that it means X and I will fiddle, effectively, with the language to make sure it's clear to the parties this is what it means".

PN1021

That's simply not this case because of the paucity of the evidence, because of the weakness of the evidence, and it's no escae to say "Oh well, parties don't write everything down when they negotiate and sometimes you've just got to take a bit of a stab at it". It is a richly diverse process, how parties negotiate, and what they record of course. And just on that, Commissioner, it's interesting to note this, that when you look at BM3 to Mr Megennis' statement you will see that on 24 July 2012 - and this is the first meeting record, page 2 effectively, there's a point 5 "Clause 23.2 weekend shift penalty and ordinary rates". Do you see that?

PN1022

THE COMMISSIONER: Yes.

PN1023

MR HARRINGTON: That's of course a reference to 2009, clause 23.2, which became 24.2. BM is Barry Megennis no doubt, and it says this. Bullet point:

PN1024

Week day and night shift receive 15 per cent shift rate. Week day public holiday receive 50 per cent. No shift rate on weekends.

PN1025

That's what is recorded. It's telling. I didn't have to cross‑examine Mr Megennis on this because it's in his own document. It's recorded that the parties discussed that there was no shift rate on weekends at that time. This is 2012, in July, and there's a note "PL" that's Pia Langford, who is GEO Care "to confirm public sector rates for weekend NS" as in night shift. That's what you've got there, but if you go over the page you will see 7 August 2012 is the next meeting record and at point 1, clause 24.5 of the 2009 agreement - so the numbering changed, and this is the additional annual leave entitlements:

PN1026

Clause 24.5 and 24.6 appear to be ambiguous and GEO proposed to reword to remove the ambiguity or remove the clause.

PN1027

So on the one hand you've got the parties saying "Look, there's a problem, there's an ambiguity as such. We probably need to do something about this in our negotiations", but on the other hand you've got a direct negotiation back in July noting there's no shift rate on weekends. That's what you've got to work with yet what we have now in early 2017, facing the prospect of a renegotiation come April 2017 and we're in the midst of that negotiation now, we hear this less than alluring argument being developed by my learned friend that "Oh well, there's all sorts of problems and there's ambiguities here and this is all relatively recent". Well, it's not. It's not recent. Whatever the issues were they were there a long time ago and we're having to deal with them right now.

PN1028

In terms of the objective framework of facts, moving on from the submissions that I've just referred to, Golden Cockerel still remains a relevant authority and as my learned friend quoted it, if ambiguity is identified then certain possibilities for you to use that extraneous or extrinsic material and look at the conduct of the parties. But you'll start with reading the clause and say to yourself, for example with clause 24.1, "Does it make sense?" and can I take you briefly to it just to point this out. 24.1 reads in the first line:

PN1029

An employee may be required to work shifts, being any work (excluding overtime) which is rostered to commence

PN1030

And it goes on. The critical word there, Commissioner, is "being". It is the parties telling you, me and everyone else who reads this agreement this is what is meant, this is the definition. "An employee may be required to work shifts" and here is what they are, and the parties have gone out of their way to sign up to that. And then at 24.2 it picks that up:

PN1031

While performing shift work as has been defined above an employee shall be paid the following shift work loadings

PN1032

Now to jump ahead, if you strip out 24.1 and denude the agreement of that two things are going to happen. It's a gift. It's a gift of back pay running back to the start of the agreement because that's the submission that we're going to start to hear next on the effect of that variation. Two, it has a material impact on the negotiation of the new agreement, the Commission has decided on the death knell of a 2013 agreement "Oh well, actually I've found an ambiguity. I'm going to strip out a definition of shift work" and that's going to really be up for grabs at that point.

PN1033

That's the difficult position you find yourself in because it has got to be relevant on the question of discretion, Commissioner, that a party has come late to the Commission, late in the agreement process, late in the life of the agreement process, right on the cusp of the new negotiation and then through the new negotiation and started complaining. But just on that quote "starting to complain", my learned friend cross‑examined Ms Lee about the fact that "If anyone says they did work a weekend and they didn't get the 50 per cent, how would you approach it?"

PN1034

Ms Lee was very candid and said "Well, if they came to us and they said that, we would pay it. That's effectively what I've said in my agreement" - "in my statement", sorry. In re‑examination you recall the one question which was "Since recent times, since February", I asked "Since February has anyone come to you or anyone that you know about and said 'Give me the 50 per cent for the weekend work I did'?" No one, and you could maybe take that back to "Since 2015, 1 August when the new system got introduced, has anyone complained about that?" No one.

PN1035

Well, the proof of that pudding is in the eating because it hasn't been an issue. What Mr Megennis said, that people were relatively outraged about not being paid certain things, it was all wrong. That's wrong. It's confected outrage if there's any outrage. There hasn't been an outrage because there's been no one come to the company saying "Give me the 50 per cent for the weekend work". Again it goes to the strength of the Megennis evidence. It was inherently weak in support of the application.

PN1036

Can I address briefly just that question of the modern award and how my learned friend has used that. It seems that there seems to be approbation and reprobation on that. There's references to clause 22, 36 - 26 and 32 to say "Well, look at the award and look at how it deals with these matters and that will shape the context for you". Here I am at the end of saying I picked myself up and everyone else picked me up on the fact that the 2013 agreement is pretty much premised on the 2009 agreement. The 2010 award wasn't in place for the 2009 agreement.

PN1037

We go back to an earlier award that we've heard about that's not before you, and I don't frankly know what's in that earlier award. But take it as read that there's something from the earlier award, pre-reform award, in this agreement. But the fact is the award can only assist so much because on the evidence before you it couldn't have had any impact on the 2009 agreement because it wasn't made. 2013 of course is sitting in the background as a modern award but these clauses as we know don't change except for what Mr Megennis and I agreed through cross‑examination, what was taken out as redundant or out of date from the old 23.1 I think it was.

PN1038

There was also then a reference to the fact that the employees seem to be disadvantaged apparently in respect of public holidays, but clause 28 of the agreement itself, a clause that my learned friend didn't really spend much time on, it deals with public holidays and the entitlement there:

PN1039

Where a full‑time or part‑time employee is rostered to work or is not rostered to work but has been called to work on any of the following days employees will be paid at the rate of double time for public holidays worked on a Monday to Friday and double time and one half for public holidays worked on a Saturday or Sunday

PN1040

And then it goes on. No application is made to vary any of that. No attack is made on any of that. That's part of the mix here because of the attack on 24.2(b) as I understand the attack that's being made on that. So again, context and text, 28 regulates public holidays. It's clear it's not challenged. My learned friend made submissions about absurd results. The true test of absurdity is coming along today and saying "We're going to change the proposed variation that we're seeking in terms of clause 24.1 on the death knell here".

PN1041

Finally, the overtime ambiguity which again as I have already submitted is unmeritorious. There's no evidence in support. It's an afterthought. It seems to be a diversion. It was developed by my learned friend late in her submissions. There was this reference to a mutual disadvantage to employees because of the method that has been adopted. Well, frankly, if you don't like the clause, negotiate now for a better clause next time round, which is probably pretty soon hopefully that you're going to get a new agreement.

PN1042

In our written submissions we make this point that the attack on 23.3, because there is no ambiguity, is really about this when you lift the fig leaf, Commissioner; the attack is "We don't like the way it operates in practice. We just don't like the way it operates, the outcome from that clause. So we want it changed, so can you add some words in for us". "No. The agreement is about to expire. From any time after 7 October you can start the machinery of voting on a new agreement. You can fix it up if you don't like it then."

PN1043

You don't get to come to this Commission, confect an ambiguity in order for the Commission - to then lure the Commission in to tinkering and fiddling with the words of your agreement right at the point where it's about to expire. Commissioner, as my learned friend referred to her submissions, I refer to my submissions and I rely upon those written submissions. In summary, particularly and most vividly with clause 23.3, overtime, there is no ambiguity on the face of that clause and I just invite you to re-read the words.

PN1044

It's thinly developed as a submission early on back in February and now in July, and even today there's nothing there. There is simply no merit in that. 24.1 of the clause 24 part of the case which seems to be the lion's share of this case, the penny dropped for us or it all became clear when we received a document which was the variation that was sought, which was a denuding or stripping out of the definition of shift work entirely from the agreement, which is all of clause 24.1.

PN1045

And really that has shaped the way we've run this hearing today, also in accordance with Mr Megennis' evidence, to say that can't be the answer. "What you want, the variation you want if there is an ambiguity" - and we deny that, but if there is an ambiguity that variation can't get up on the evidence and can't be the way to so‑called fix the problem because it's stripping out a significant definition of the agreement. Those are the submissions.

PN1046

THE COMMISSIONER: Thank you Mr Harrington.

PN1047

Ms Kelly, I've got a couple of questions I need to ask.

PN1048

MS KELLY: Yes.

PN1049

THE COMMISSIONER: Would you like to finish your - provide your reply submissions and then I shall ask you the questions I need answers to? Is that the best way to go?

PN1050

MS KELLY: I think so, Commissioner. The reply submissions won't take very long. I have to take up the language used by my learned friend, "rank opportunism", "no merit", "a waste of time" et cetera. You will see in BM4 - and you can feel free to go to it now, but you don't need to - a series of communications between my client and Correct Care from December 2015, in January 2016 and the communications to and from members of the ANMF complaining about this issue.

PN1051

The notion that those individuals whose modest salaries are affected by these issues is confected outrage is a matter that they will no doubt be very interested to hear is their employer's response to those concerns. It was March of 2016 that the ANMF lodged a dispute in this Tribunal, and I believe that you had some involvement in mediating that dispute, Commissioner. So it was a mere matter of months after these issues were first raised by members, the identities of which are in BM4, that the ANMF brought it to the Tribunal and, yes, it has taken some time to get it to where it is today.

PN1052

But we reject absolutely any assertion at all that there has been some confected outrage or confected complaint that has brought us here. The complaints of members have to be seen in this context. Things ran along for years. They were paid for years in a way that was wholly consistent with the interpretation advanced by the ANMF, and what Ms Lee does not deny and in fact admitted in the witness box was that when Correct Care took over it picked up the agreement, it read it and it said "GEO Care, we know better than you. You've been working with these employees for years. You've been negotiating with this union for years. You have been paying in the way that you believe the agreement provides for, but we know better".

PN1053

That's how we got to be here. An external force from across the seas has come over and said, "Hello, Australian industrial bargaining participants, your new overlords have arrived and we will tell you" – I'm just trying to match the hyperbole of Mr Harrington.

PN1054

MR HARRINGTON: Get the facts right. GEO is from America as well. GEO is an American company as well. They're all American.

PN1055

THE COMMISSIONER: I'll give you both Oscar nominations, okay.

PN1056

MS KELLY: Thank you. Flippancy aside there are humans at the end of all of this, Commissioner, and they see that what changed was a new company who purchased their employer, and said, you've been doing it wrong all of these years. When they have fought for entitlements and when they have re-bargained and continued to receive those entitlements there is nothing about their outrage that might be said to be confected.

PN1057

On the question of the negotiations, yes, it is true the agreement expires in October. We all know, as experienced industrial participants, that that means nothing about when negotiations will be completed, and it may be that negotiations are concluded the next day, but no one has put evidence before you, Commissioner, that suggests that negotiations are in an advanced state, and it cannot be assumed that agreement will be reached at any time in the foreseeable future in the absence of evidence about that.

PN1058

A lot got said about Mr Megennis' statement. Mr Megennis deposes, based on what he's been told, but it's neither here nor there. Once we had the statement of Ms Lee, leaving aside the dispute about the 50 per cent, and whether that has been paid consistently or not, we had the admission, the critical admission, that, yes, Correct Care takes a different view about what this agreement means. When you read that with BM4 there hasn't been a manufacturing of a dispute; there's been a change that has been observed by employees that has upset them, and I accept that it wasn't until we got the statement of Ms Lee that we were able to actually – that it coalesced a lot more than it had beforehand, but that's not surprising. Individual members in the union don't have access to all of the internal workings of the employer. We read her statement. We understand how things came to be as they are.

PN1059

On the question of intention Correct Care has chosen to put on no evidence at all about what the mutual objective intention of the parties was. It has completely vacated the field on that score and so you are left with the limited evidence, but nonetheless the evidence that you have before you and you're entitled to act on it.

PN1060

To the suggestion that it is absurd for me to have proposed an alternative form of words, my learned friend this morning took issue with the removal of clause 24.1. It is the job of an advocate to hear the complaints made by the other side and to try and address them, and if there is a form of words that addresses the ambiguity but doesn't cause the alleged adverse result, then that's an appropriate thing to do. It's certainly not absurd in any way to hear a complaint and to attempt to address it. More importantly, if you took clause 24.1 out of the agreement nothing would happen. It's a clause that has no meaning at all. It doesn't do anything.

PN1061

But in any event, as I've indicated, it doesn't matter because it is not the clause that defines shift work. It defines the word "shift" and that, as I submitted to you earlier, is the hangover from the old days where we defined afternoon shift and night shift. They were terms that had meanings for various reasons, but it does not define shift work, and we saw that; the example I pointed to in the award that shift work had its own meaning completely separate to what the definition of an afternoon or a night shift were, and that is because different entitlements attached to the different concepts. Shift workers, in their capacity as shift workers, had particular entitlements. Workers who worked afternoon or night shifts had particular entitlements, but they were separately defined because they attached separately. That's not what we see in this agreement.

PN1062

That's all I need to say in reply, but I'm ready to answer your questions, Commissioner.

PN1063

THE COMMISSIONER: In terms of the changes that were suggested during your closing submissions ‑ ‑ ‑

PN1064

MS KELLY: Yes.

PN1065

THE COMMISSIONER: ‑ ‑ ‑are they in the context of an option or do they define the definitive variation that's being sought on behalf of the union?

PN1066

MS KELLY: No, the variation is the one that's been handed up.

PN1067

THE COMMISSIONER: Yes.

PN1068

MS KELLY: The alternative is offered as an alternative.

PN1069

THE COMMISSIONER: So it's sort of plan A and plan B.

PN1070

MS KELLY: Plan A and plan B. Yes.

PN1071

THE COMMISSIONER: Okay.

PN1072

MS KELLY: We say plan A is the sensible course. If there is some concern about the removal of 24.1 that can be accommodated by the alternative that I proposed.

PN1073

THE COMMISSIONER: Thank you. As I understand it the ambiguities that are said to lie within 24.1 and 24.2 ‑ ‑ ‑

PN1074

MS KELLY: Yes.

PN1075

THE COMMISSIONER: ‑ ‑ ‑ have resulted in the union's members - essentially two things: 24.2(a), that if their shift finishes at or after 7 am there's no continuation of the 15 per cent shift loading; and then the second aspect, as I understand it, lies with 24.2(b) and the ambiguity in terms of that, in particular, has resulted in your members not as a right from the company's perspective, being paid the 50 per cent for the weekend nor for the public holidays.

PN1076

MS KELLY: That's correct.

PN1077

THE COMMISSIONER: Okay.

PN1078

MS KELLY: Just one moment, Commissioner. Yes, my instructor is just wanting me to clarify that the issue about the night shift, the 15 per cent ‑ ‑ ‑

PN1079

THE COMMISSIONER: Yes.

PN1080

MS KELLY: ‑ ‑ ‑we say you get it between 7 pm and 7 am, and that's the qualifying entitlement. If you're working between those hours you get it for those hours.

PN1081

THE COMMISSIONER: Yes.

PN1082

MS KELLY: Correct Care are paying that but say they are not obliged to pay it. They say unless you fall within the definition in 24.1 you don't get it at all.

PN1083

THE COMMISSIONER: I thought the issue for – and, Mr Harrington, I might need your assistance here – I thought Correct Care were saying that is payable on night shift, but if your shift continues beyond 7 am ‑ ‑ ‑

PN1084

MR HARRINGTON: That's right.

PN1085

THE COMMISSIONER: ‑ ‑ ‑the portion after 7 am doesn't attract 15 per cent?

PN1086

MS KELLY: No. They say you don't get it at all but they choose to pay it.

PN1087

MR HARRINGTON: No.

PN1088

MS KELLY: You will find that in Ms Lee's statement.

PN1089

THE COMMISSIONER: You don't get a 15 per cent night shift at all, whether it finishes at 7 ‑ ‑ ‑

PN1090

MS KELLY: Yes. Unless if you fall outside the bracket in 24.1 you do not get it at all as of right, but they choose to pay it up to 7 am. So if you're ‑ ‑ ‑

PN1091

THE COMMISSIONER: I thought that's what I said.

PN1092

MS KELLY: It's possibly us.

PN1093

THE COMMISSIONER: So Correct Care will pay ‑ ‑ ‑

PN1094

MR HARRINGTON: Yes, 19(g), Ms Lee says what you've said; paragraph 19(g) of Ms Lee's statement.

PN1095

THE COMMISSIONER: Yes. No, I heard that.

PN1096

MR HARRINGTON: Yes.

PN1097

THE COMMISSIONER: I was just surprised. (g)?

PN1098

MR HARRINGTON: (g), yes.

PN1099

THE COMMISSIONER: Yes, that's what I thought.

PN1100

MS KELLY: Yes. So they pay it but they say they are not obliged to pay it, and you will find that in clause 23. So Correct Care is of the opinion that it is not required to pay a 15 per cent shift work loading on week night shifts which conclude at or after 7 am.

PN1101

THE COMMISSIONER: Yes, but they pay it up till that point.

PN1102

MS KELLY: Yes, but not as of right.

PN1103

THE COMMISSIONER: I thought as of right they were saying that they did.

PN1104

MS KELLY: No. No. So I cross-examined on this point and what was confirmed is that if your shift finishes at or after 7, you do not get it as of right. That is Correct Care's interpretation. They are paying it, but as an above award payment.

PN1105

THE COMMISSIONER: Mr Harrington, would you be able to – this is important. Would you mind seeking instructions on that, please? Thank you, Mr Harrington, my apologies.

PN1106

MR HARRINGTON: Can I just read from the Bar table? Twenty-three probably overstates the proposition in this sense; that the working approach is if you work night shift you get it, but it's when you go beyond the 7 am time, and for example worked till 8 o'clock, the 15 per cent is not paid on the extra.

PN1107

THE COMMISSIONER: Hour.

PN1108

MR HARRINGTON: The extra hour past the 7 am point.

PN1109

THE COMMISSIONER: Seven, right.

PN1110

MR HARRINGTON: But I agree that it reads ‑ ‑ ‑

PN1111

THE COMMISSIONER: But up until 7 am that's an entitlement.

PN1112

MR HARRINGTON: Yes.

PN1113

THE COMMISSIONER: This is not over agreement.

PN1114

MR HARRINGTON: Correct, yes. That's the way the company interprets it.

PN1115

THE COMMISSIONER: Yes, that's what I'm asking.

PN1116

MR HARRINGTON: But I agree, 23 doesn't strictly say that. It does suggest something else.

PN1117

THE COMMISSIONER: It does.

PN1118

MR HARRINGTON: My learned friend has picked up on that, and I don't – so that is point of clarification.

PN1119

THE COMMISSIONER: Okay.

PN1120

MR HARRINGTON: So that's the approach that was taken. That is what's done. I don't think you'll find – I'll stand corrected, but no one has ever turned up and said, "I just worked till 7.10 am and I worked eight hours through the night, and you didn't pay me the 15 per cent because you just said I finished at 7.10". That doesn't happen. They do get what I'll call the loading for the work up till the 7 am point, and then the company says after that you drop back effectively.

PN1121

THE COMMISSIONER: Right. Okay.

PN1122

MR HARRINGTON: That's the realpolitik. That's how it's done if I could put it like that.

PN1123

THE COMMISSIONER: Yes.

PN1124

MR HARRINGTON: That's the approach that's been adopted, but to address your point, does my client say you don't have any right to a night shift loading if you finish ‑ ‑ ‑

PN1125

THE COMMISSIONER: Up until 7 am.

PN1126

MR HARRINGTON: Yes, up until 7, my client does not contend that, and it's never said to an employee, "You don't get anything because you finished at 7.05 or 7.10". It doesn't do that.

PN1127

THE COMMISSIONER: Right. Okay. Am I correct in hearing that the company is saying that if you work a night shift up till 8 am, as a right, you are not entitled to payment from 7 am to 8 am?

PN1128

MR HARRINGTON: Yes. That's right. The 15 per cent is paid to the 7.

PN1129

THE COMMISSIONER: Correct.

PN1130

MR HARRINGTON: But then when you move past the 7 ‑ ‑ ‑

PN1131

THE COMMISSIONER: Yes.

PN1132

MR HARRINGTON: ‑ ‑ ‑as a matter of approach or principle, however you want to put it, or practicality, the result is they don't pay the 15 per cent from 7 am to 8 am.

PN1133

THE COMMISSIONER: Yes. Mr Harrington, thank you for that. I appreciate it.

PN1134

MS KELLY: That, Commissioner, is inconsistent with the evidence that was given by Ms Lee. I cross‑examined on this point and she said something completely different. I cross‑examined on this precise issue, but it completely undermines everything that has been said by my learned friend about how to interpret this clause because – it does, Commissioner. It does, because it means that my learned friend now says that you don't interpret 24.1 literally.

PN1135

MR HARRINGTON: With the greatest respect, I didn't make any submission. I'm not entitled to make a submission. I was asked to clarify a factual matter. I didn't go on to say what it meant. I just said this is what happens.

PN1136

MS KELLY: No, what was asked was what Correct Care believes it is required as a matter of law to do. It says the clause means that you get night shift penalty for hours worked between 7 pm and 7 am as a matter of right.

PN1137

MR HARRINGTON: That is not what my response was and if it has been misinterpreted by my learned friend through a certain lens, I addressed you on what you asked me; what do they do? What do they do? This is what they do. This the approach they take.

PN1138

THE COMMISSIONER: But I did ask very specifically as to whether the company's view was that the employees had a right, an entitlement, to be paid night shift penalty up until 7 am.

PN1139

MR HARRINGTON: It does have that view up until 7 am.

PN1140

THE COMMISSIONER: Yes, that's what I heard you say.

PN1141

MR HARRINGTON: That is the fact of its view. I'm not making a submission on that. That is just what its view is.

PN1142

THE COMMISSIONER: That was my question.

PN1143

MS KELLY: So that goes back to what I said, Commissioner, that we then have this concession that 24.1 cannot be read literally because it says a shift must both commence after 12 noon and finish before 7 am. The whole premise on which the respondent has conducted the case and the way Ms Lee gave her evidence, is that if you don't do that you're not entitled under the agreement to the payment. It now says what those words really mean is that if you work within that bracket you get the entitlement; and that is inconsistent with the literal phrasing of the clause.

PN1144

THE COMMISSIONER: What do you mean, it's inconsistent with the literal phrasing of the clause - I've lost it. I've got it.

PN1145

MS KELLY: Yes, great.

PN1146

THE COMMISSIONER: Why is it inconsistent with the literal - - -

PN1147

MS KELLY: So literally a shift is work which is rostered to commence after 12.00 and which finishes after 7.00 or before 7.00.

PN1148

THE COMMISSIONER: Yes.

PN1149

MS KELLY: So what the respondent has been saying is in 24.2 "while performing shift work" means you are working a shift which is rostered to commence after 12.00 but finishes – actually finishes – before 7 am. That is what you were told is the way that the words "while performing shift work", conditions, 24.2. My learned friend said it. He said, "While performing shift work as defined in 24.1", which is a shift that's rostered to start after 12.00 - never mind when it actually starts. It's rostered to start after 12.00 and it in fact finishes before 7 am. He says that is how you read the words in 24.2 "while performing shift work".

PN1150

If you're not performing a shift that starts after 12.00 and in fact finishes before 7.00, you don't get the penalties. They are the precise questions I asked Ms Lee and she said, "Yes, that is our interpretation." Unless you fall within both ends of the bracket – after 12.00 and before 7 am – you are not entitled on their interpretation of this agreement to any penalty at all, but they pay it as an above agreement arrangement.

PN1151

If that is now resiled from and the payment they have been making of night shift is said to be an entitlement, that is an admission that the literal meaning of 24.1 is not the proper meaning of 24.1. All that does is confirm that the ambiguity is there.

PN1152

THE COMMISSIONER: I don't understand the difference between "literal" and "proper". I get the literal meaning, because that's the one that you're saying Mr Harrington has just given, but what is the proper? What are you saying is the proper reading of 24.1?

PN1153

MS KELLY: We say 24.1 has no purpose other than to define "shift". It's an amalgam of afternoon and night shift. That's all it does. It tells us what a shift is.

PN1154

THE COMMISSIONER: Okay. Can I get to my second question - - -

PN1155

MS KELLY: Yes, of course.

PN1156

THE COMMISSIONER: - - - because I've covered my first. This was the preamble to the second question. The second question was it seems to me – I'll go back to the bit I got out before it got derailed – that the ambiguity in 24.2 that the union is complaining about is in (b), where if an employee works on weekends or a public holiday they don't get the 50 per cent loading as, on the union's argument, a right. Then coming back to 24.2(a), we have just had the conversation about what that means.

PN1157

MS KELLY: Yes.

PN1158

THE COMMISSIONER: How does either plan A or plan B in terms of the proposed variation to the agreement cure both those problems – those ambiguities?

PN1159

MS KELLY: It cures it this way: what we need to do is find a means of prescribing that clause 24.2 applies to anybody performing shift work, so not working on a particular shift as defined, but it applies to a shift worker. We can do that by simply linking the reference back to the pattern available in 21.1.2. We had thought the simplest way to do that was – in fact I'm going to withdraw that. That's really plan B.

PN1160

Plan A simply says 24.1 doesn't – if our construction is accepted, 24.1 doesn't really have work to do because those concepts aren't picked up anywhere else in the agreement. We just say that shift workers are paid the loading set out in 24.2 and then the subparagraphs take effect according to their terms. They don't then have to be referenced anywhere else.

PN1161

If you're working between 7 pm Monday to Friday and before 7 am, you get 15 per cent. If you're working on a weekend, you get 50. If you're working on a public holiday, you get 50. That's it. The clause is actually very self‑contained if we accept that.

PN1162

THE COMMISSIONER: Given the clarification in terms of 24.2(a), I understand plan A. Plan A in terms of 24.2(b) doesn't sort out (b). The issues with (b).

PN1163

MS KELLY: It does, Commissioner.

PN1164

THE COMMISSIONER: How?

PN1165

MS KELLY: Because it is then simply referable to its terms. Shift workers get paid for all ordinary time worked from midnight Friday to midnight Sunday 50 per cent, and they get for all time on a public holiday 50 per cent, because what it does is it removes the shift bracketing from 24.1. There is no suggestion then you have to be working a shift as defined in 24.1 to get these penalties. The clause just says you get the penalty. If you work a public holiday, you get 50 per cent. If you work a weekend, you get 50 per cent.

PN1166

THE COMMISSIONER: Hang on a minute. Plan A is as exhibit A2, right?

PN1167

MS KELLY: Yes.

PN1168

THE COMMISSIONER: I've got 24.1 is being blown away.

PN1169

MS KELLY: Yes.

PN1170

THE COMMISSIONER: Then 24.2 says:

PN1171

An employee, including a casual employee, shall be paid the following shift work loadings.

PN1172

MS KELLY: Yes.

PN1173

THE COMMISSIONER: Then it has got (a) which covers your night shift, right?

PN1174

MS KELLY: It does.

PN1175

THE COMMISSIONER: Then you have got (b), which doesn't talk about whether it's a shift worker or not.

PN1176

MS KELLY: Yes, that's right, because the agreement only provides for two types of workers. We go back to 21.1.2; you're on day work or you're on shift work. By including the words "shift work loadings", that is being picked up.

PN1177

THE COMMISSIONER: Ms Kelly, it comes to mind that the reason you are here on behalf of the ANMF - it has got the wrong label on it. It has got the wrong label, the application, I think, particularly in light of the fact that in terms of overtime, clause 23.3, I think it's common ground within this courtroom that there is no ambiguity because that's the primary position as indicated by the union; that it's not ambiguous.

PN1178

What you've asked the Commission to do is to say it's not ambiguous because this is what is means and the meaning you've asked me to give it is the one that the union prefers as opposed to the company's, okay? Then in terms of shift work, it's not as black and white. It has got shades of grey heading in the same direction, I think.

PN1179

MS KELLY: You're clearly entitled to form that view. I can't stand against the proposition firmly enough. For years my client's members enjoyed the benefit of this clause construed a particular way.

PN1180

THE COMMISSIONER: Yes.

PN1181

MS KELLY: The employer changes the application.

PN1182

THE COMMISSIONER: Yes.

PN1183

MS KELLY: Now my client is being told, well, there's no ambiguity here.

PN1184

THE COMMISSIONER: Yes, but I'm just wondering – I mean, I think both learned counsel would be very aware it's not quite commonplace, but it's not unusual for there to be a change of employer and then a change of interpretation in terms of a pre‑existing, often long‑standing application of a particular clause in an agreement. Generally the Commission has then been approached by the aggrieved party on the basis of 739 and it ends up going to arbitration on the interpretation of the agreement.

PN1185

This is the first one I've had where it's a section 217 application to amend an agreement due to ambiguity or uncertainty. I suppose this is the first time in 23 years.

PN1186

MS KELLY: Which doesn't of course mean that it's not available. All that is required to enliven your power in the 217 is your satisfaction that there are competing interpretations open, which was the point we were really making about - - -

PN1187

THE COMMISSIONER: Yes, but what I'm getting at, I think, is the remedy that is available, it's much more constrained for 217s given all the eminent case law. I say that very respectfully.

PN1188

MS KELLY: Yes.

PN1189

THE COMMISSIONER: Because, you know, it's the High Court and it cascades down from there.

PN1190

MS KELLY: Yes, of course.

PN1191

THE COMMISSIONER: Whereas with another type of application, the options for creating sanity, whichever way that goes - - -

PN1192

MS KELLY: Yes.

PN1193

THE COMMISSIONER: Whether it's in the employer's favour or the union's, it actually doesn't matter – are wider.

PN1194

MR HARRINGTON: Commissioner, I'm not sure where I am to making submissions, but just as a matter of clarity given what has fallen from the bench at this point, I think you're aware – and I've got a copy in front of me. and my learned friend referred to it before when she responded to my submissions about complaints about how things were being paid. There was a form F10 dispute notification filed back on 3 March 2016 about the dispute over - 2.1 public holidays was set out and then (b) overtime. The public holidays dispute was about 24.1 and 24.2, and the overtime dispute was clause 23. That is discontinued.

PN1195

THE COMMISSIONER: I think I was the - - -

PN1196

MR HARRINGTON: I wasn't involved back then. I'm just saying - - -

PN1197

THE COMMISSIONER: I think I was.

PN1198

MR HARRINGTON: But there is no mystery or secret about this, because I think Mr Megennis may have referred to it or it's on the record in some other way that - - -

PN1199

THE COMMISSIONER: Yes, he did. Mr Megennis referred to it.

PN1200

MR HARRINGTON: So you're now observing broadly is this the right way to go about it? Well, there was consideration a long time ago to take that path. That has been discontinued and then we found ourselves on this path under a different provision of the Act and the like. I don't want to make any further submission other than to say those are the facts. That's how this is. We're here today with that background.

PN1201

THE COMMISSIONER: Ms Kelly, is there anything further given - - -

PN1202

MS KELLY: I hear what you say about that, Commissioner. This is the path we chose.

PN1203

THE COMMISSIONER: Yes.

PN1204

MS KELLY: I have advanced the reason we say it's available.

PN1205

THE COMMISSIONER: Yes, and I respect that. I'm just being sort of open and transparent with both parties, having spent most of the day with you both, as to a natural question that arose.

PN1206

MS KELLY: Yes.

PN1207

THE COMMISSIONER: From the Commission's perspective, it is what it is and I respect the fact that a decision was made to file this application. Obviously it will be dealt with on that basis; on the basis of the evidence before the Commission, of course.

PN1208

MS KELLY: Thank you.

PN1209

THE COMMISSIONER: Thank you. Mr Harrington, was there anything further, because I'm going to have to reserve, unfortunately.

PN1210

MR HARRINGTON: Of course you're going to reserve.

PN1211

THE COMMISSIONER: I wasn't "of course‑ing". I was hoping not to. I have plans to go on leave soon.

PN1212

MR HARRINGTON: No, sorry, I assumed that would probably be the case given that we have all been here for a little bit of time today and there was a bit of legal argument. The only observation I can make at this point – and it's not a submission – is that there is bargaining going on and you have got a full timetable and full book, I'm sure of that.

PN1213

THE COMMISSIONER: And I'm going on leave for five weeks, and I've got benchmark timeliness things. That was why I was hoping to do an extempore - - -

PN1214

MR HARRINGTON: Yes, all right.

PN1215

THE COMMISSIONER: You understand now why I said that? What I said?

PN1216

MR HARRINGTON: Well, that tells me something I didn't know. I can't make submissions about -- -

PN1217

THE COMMISSIONER: Whether I go on leave or not?

PN1218

MR HARRINGTON: The effect of this decision on bargaining, but what I'm just saying is the fact is there is bargaining for - - -

PN1219

THE COMMISSIONER: Yes.

PN1220

MR HARRINGTON: The agreement hasn't expired yet, anyway, but there is bargaining.

PN1221

THE COMMISSIONER: Yes.

PN1222

MR HARRINGTON: I'm not part of it, I don't know, but I assume this decision will have an impact. There is a pebble that's dropped in a pond. It will do what it does, but - - -

PN1223

THE COMMISSIONER: Yes. Mr Harrington, that was one of the submissions that has been made on behalf of Correct Care and both parties have made a similar submission, because if the Commission goes in a party's favour, that will have an impact in that pond. It doesn't matter which party it is. As I understand it, your client's submission is that that is a factor the Commission should take account of in deciding, if ambiguity is found, whether to exercise discretion.

PN1224

MR HARRINGTON: Yes. I have made that submission alongside the so‑called delay submission and it's all happening now.

PN1225

THE COMMISSIONER: Yes, correct.

PN1226

MR HARRINGTON: Yes, I've made that submission - - -

PN1227

THE COMMISSIONER: Yes, I heard you.

PN1228

MR HARRINGTON: Yes, okay. Thank you.

PN1229

THE COMMISSIONER: Thank you.

PN1230

MR HARRINGTON: Enjoy your holiday.

PN1231

THE COMMISSIONER: I'm not there yet, unfortunately. Thank you. Ms Kelly, is there anything finally, because you will be the last person.

PN1232

MS KELLY: Nothing further. Thank you.

PN1233

THE COMMISSIONER: Okay. Thank you to both parties. As indicated, I do need to reserve my decision. As also indicated, I need to do it before I go on leave. On that basis, I am adjourning. Thank you, everybody.

ADJOURNED INDEFINITELY [3.50 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 APPLICANT'S OUTLINE OF SUBMISSIONS DATED 03/07/2017 PN259

EXHIBIT #A2 PROPOSED VARIATIONS FORWARDED ON 02/08/2017 PN259

EXHIBIT #A3 COMBINED STATEMENT OF AGREED FACTS AND FACTS IN DISPUTE................................................................................................................................. PN265

EXHIBIT #R1 COMBINED STATEMENT OF AGREED FACTS AND FACTS IN DISPUTE................................................................................................................................. PN265

EXHIBIT #A4 TABLE......................................................................................... PN265

EXHIBIT #R2 RESPONDENT'S OUTLINE OF SUBMISSIONS................. PN270

BARRY MEGENNIS, SWORN.......................................................................... PN272

EXAMINATION-IN-CHIEF BY MS KELLY.................................................. PN272

EXHIBIT #A5 STATEMENT OF BARRY MEGENNIS DATED 28/07/2017 WITH FOUR ATTACHMENTS................................................................................................. PN283

CROSS-EXAMINATION BY MR HARRINGTON........................................ PN320

RE-EXAMINATION BY MS KELLY............................................................... PN503

THE WITNESS WITHDREW............................................................................ PN604

REBEKAH CHRISTINE LEE, SWORN........................................................... PN698

EXAMINATION-IN-CHIEF BY MR HARRINGTON................................... PN698

EXHIBIT #R3 WITNESS STATEMENT OF REBEKAH CHRISTINE LEE DATED 18/08/2017 TOGETHER WITH 16 ATTACHMENTS........................................................ PN743

CROSS-EXAMINATION BY MS KELLY....................................................... PN746

RE-EXAMINATION BY MR HARRINGTON................................................ PN889

THE WITNESS WITHDREW............................................................................ PN892

Fair Work Commission Transcripts

AG2017/ 487 , Transcript of Proceedings [2017] FWCTrans 400 (21 September 2017)