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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
JUSTICE ROSS, PRESIDENT
AM2020/104
s.158 - Application to vary or revoke a modern award
Application by the Australian Workers' Union
(AM2020/104)
Horticulture Award 2020
Melbourne
9.39 AM, TUESDAY, 13 JULY 2021
Continued from 7/07/2021
PN107
JUSTICE ROSS: Good morning. It's Justice Ross. Can I go through the appearances as I have them, and then, if I'm missing anyone, you can let me know. For the AWU, Mr Gibian. There are others as well. For the NFF, Mr Donaghey. For the UWU, Ms Burke. For 88 Days and Counting, Mr Bretherton, and some others. For the Australian Fresh Produce Alliance, Mr Dalton and others. For the Migrant Workers Centre, observing, Ms Huang. The International Collective, Ms Brawatt and Mr Cottel.
PN108
Is there any appearance for Ai Group? No? All right. I don't think they were wanting to cross-examination any of the witnesses in any event. Is there anyone that I've missed? No? Can I deal with some preliminary matters.
PN109
In relation to evidentiary objections, after the mention, last week, Mr Crawford, for the AWU, sent an email advising of the agreed position between the AWU, UWU, NFF, and NFPA, that the parties will not raise objections to each other's evidence, on the basis that each party will be free to make submissions that a piece of evidence be given little or no weight, and that submission could be advanced irrespective of whether or not the relevant witness has been cross-examined.
PN110
We also sent out a notice of listing, with some instructions, yesterday, and matters relating to the timetable. I'll come to the timetable in a moment, and my associate will monitor the – as witnesses are waiting in the lobby, they'll be kept in the electronic lobby until they're required to give evidence. So, in other words, witnesses won't be able to observe the evidence of other witnesses. If you see anything that suggests to the contrary, let me know as soon as you're able to.
PN111
If you can keep your microphones on mute, unless you're speaking – by all means, use the raised hand function if you're comfortable or familiar with that. Otherwise, just put your microphone on and say what you wish to say. The electronic court books has been distributed. You can simply hover on any witness statement in the index, click, and it will take you to it. To go back to the index, you just press CTRL+Home on your laptop.
PN112
The irony of me giving you IT advice isn't lost on me, but I found that useful, rather than hitting the back key, which takes you on a longer journey. In terms of the witnesses, we grouped the three of the witnesses this morning that require an interpreter. We'll come to them in a moment. There's an issue in relation to witness 1. Witness 1 was scheduled to give evidence at 11 am on Thursday. That was because that was the only day on which a Malay interpreter was available.
PN113
We've been advised by the UWU that witness 1 is only – is available to give evidence today or tomorrow, prior to midday. We'll make an enquiry as to whether there is a Malay interpreter available tomorrow morning. There are apparently only two Malay interpreters available on the service, so if we're not able to secure one, we should let you know by later on this afternoon. We'll have to have a discussion about what then happens.
PN114
Given it's one lay witness, I don't think a huge amount will turn on it. We can fit them in at some other time that might be convenient. It's unlikely to disturb the submissions the parties wish to make on the evidence. Was there anything else by way of preliminary matter before we go to – before we swear in the interpreter and then go to the first witness?
PN115
MS BURKE: Can I raise one matter, please, your Honour.
PN116
JUSTICE ROSS: Yes, Ms Burke.
PN117
MS BURKE: Just in relation to – your Honour commented that witnesses should not be listening to the hearing until they themselves give evidence. Mr Robertson is an organiser at the UWU, and he's also a witness. I just wanted to check if, as he's both a party and a witness, if he should – he's giving evidence this afternoon, at 11.30, or this morning – if he should not observe the hearing until that point, given that he is a party.
PN118
JUSTICE ROSS: Unless he is instructing – if he's instructing, then there's usually no difficulty. Is he instructing in the matter, Mr Burke?
PN119
MS BURKE: No, he's not.
PN120
JUSTICE ROSS: I think it's probably safest in that case to adopt the same rule.
PN121
MS BURKE: Yes.
PN122
JUSTICE ROSS: And, absent some exception, they ought not be present.
PN123
MS BURKE: Thank you. I'll make that arrangement.
PN124
JUSTICE ROSS: All right, thank you. Anything further? No? Then I'll ask my - - -
PN125
MR GIBSON: Your Honour, I was just going to make a quick enquiry. I at least am not aware of the identity of the other members of the Full Bench, in case we need to address - - -
PN126
JUSTICE ROSS: Yes. Vice President Catanzariti and Commissioner Riordan.
PN127
MR GIBSON: May it please.
PN128
JUSTICE ROSS: It's just that there are so many – there are another 17 that you can't see on the screen, or at least on my screen. But I can assure you I checked they were there. And there were a number of other newer Commission members who are observing the proceedings as well.
PN129
MR GIBSON: Thank you, your Honour.
JUSTICE ROSS: All right. We'll just swear in the interpreter, and then we'll turn to the first witness.
<YI WANG, affirmed to interpret [9.37 AM]
JUSTICE ROSS: All right. We'll call the first witness.
<CHEE SING EE, AFFIRMED [9.42 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [9.42 AM]
PN132
MR GIBIAN: Ms Ee, could you repeat your full name for the record?‑‑‑(Direct) My name is Chee Sing Ee.
PN133
And I think you're currently working as a food delivery rider?‑‑‑Yes.
PN134
And you previously worked doing agricultural work between around 2016 and 2019?‑‑‑(Through interpreter) Yes.
PN135
JUSTICE ROSS: Just a moment, Mr Gibian. If you're canvassing material that's in the statement, this is going to take long enough without you adding to the evidence-in-chief, so ‑ ‑ ‑
*** CHEE SING EE XN MR GIBIAN
PN136
MR GIBIAN: It was only for the purposes of identifying the witness, your Honour.
PN137
JUSTICE ROSS: Okay.
PN138
MR GIBIAN: The witness's statement is two pages and runs to 14 paragraphs, and I think is on page 7 of the Court Book, if it assists.
PN139
JUSTICE ROSS: Yes, I have that.
PN140
MR GIBIAN: Thank you, Ms Ee.
PN141
JUSTICE ROSS: Do you want the witness to indicate that the statement is true and correct and then tender the statement?
PN142
MR GIBIAN: I will do that.
PN143
Ms Ee, do you have a copy of the statement?‑‑‑(No audible reply)
PN144
You've participated in the preparation of this statement?‑‑‑(No audible reply)
PN145
I'm sorry, is the interpreter there?
PN146
THE INTERPRETER: Yes, yes.
PN147
MR GIBIAN: Ms Ee, you prepared a witness statement for the purposes of the proceedings, which runs for 14 paragraphs over two pages. Is that correct?‑‑‑(Through interpreter) I putting in the statement, yes.
PN148
And is it true and correct to the best of your recollection?‑‑‑Yes.
PN149
May it please, I tender the witness statement. It's at page 7 to 9 of the Court Book.
JUSTICE ROSS: I will mark this statement as exhibit AWU1.
*** CHEE SING EE XN MR GIBIAN
EXHIBIT #AWU1 WITNESS STATEMENT OF CHEE SING EE
CROSS-EXAMINATION BY MR DONAGHEY [9.45 AM]
PN151
MR DONAGHEY: Ms Chee, do you have paragraph 7 of your witness statement visible to you?‑‑‑(Through interpreter) I can see.
PN152
The third sentence in paragraph 7 begins with the words, "At the end of the day." Do you see those words?‑‑‑I cannot see the ‑ ‑ ‑
PN153
Perhaps it would assist, your Honour, if I read out the paragraph that I'm proposing to make the subject of these questions.
PN154
JUSTICE ROSS: Sure. I think that's probably going to be the quickest way home generally.
PN155
MR DONAGHEY: Thank you, your Honour.
PN156
Ms Chee, in your statement you say that you did leaf plucking in Mildura from November 2016 to January 2017. That's your evidence, isn't it?
PN157
THE INTERPRETER: Sorry, the signal is a bit not very clear. Could you reread, please?
PN158
MR DONAGHEY: Yes, certainly.
PN159
Ms Chee, you did grape leaf plucking in Mildura from November 2016 till January 2017. That's your evidence, isn't it?‑‑‑(Through interpreter) That's correct.
PN160
And in your statement you say:
PN161
At the end of the day I should have been paid about $25.
PN162
Are you referring to the first day you worked in Mildura?‑‑‑That's correct.
*** CHEE SING EE XXN MR DONAGHEY
PN163
Thank you. And you said you should have been paid $25 for that first day. Did you make a complaint about not being paid that $25?‑‑‑I didn't lodge a complaint because that was a normal practice at the time by everybody.
PN164
I understand your answer. Since that time have you made a complaint about the amounts you were paid leaf plucking in Mildura?‑‑‑No, I didn't lodge a complaint.
PN165
But you're aware that you could have brought a complaint or a claim in respect of that underpayment, aren't you?‑‑‑I didn't realise I was - I had entitlement to lodge a complaint or claim, so answer is no.
PN166
I understand. Nothing further for this witness, your Honour.
PN167
JUSTICE ROSS: Any re‑examination, Mr Gibian?
MR GIBIAN: Thank you. Just one matter.
RE-EXAMINATION BY MR GIBIAN [9.50 AM]
PN169
MR GIBIAN: Ms Ee, you were asked about the statement that at the end of the day you should have been paid $25 with respect to the leaf plucking work in Mildura. Do you recall that?‑‑‑I remember.
PN170
And you said that the amount of $25 related to the first day you performed that work. Is that correct?‑‑‑I did my job, yes.
PN171
And did the amount that you earned according to the piece rate change after the first day in the period between November of 2016 and January of 2017 when you were doing that work?‑‑‑It's not something like a contract or verbally or put into writing. I was told you simply did your job. by the end of the day I can be paid $25.
PN172
Did the amount of $25 per day remain the same for the whole period that you were performing the leaf plucking work in Mildura?‑‑‑Generally speaking my answer is because I didn't do full-time, I do three days a week during the period. But generally speaking the payment for each day was about $25.
PN173
Thank you. That's all, your Honour.
*** CHEE SING EE RXN MR GIBIAN
PN174
JUSTICE ROSS: Nothing further for this witness?
PN175
MR DONAGHEY: Nothing arising, your Honour.
JUSTICE ROSS: All right. Thank you, Ms Chee, you're excused.
<THE WITNESS WITHDREW [9.56 AM]
PN177
And if the interpreter can stay on the line, and we will go to our next witness.
PN178
THE INTERPRETER: Thank you, your Honour.
PN179
MR GIBIAN: If it's convenient, can I just raise two matters in relation to the next witness. The first is that - sorry, if I can just have a moment. The next witness does not want her first name ‑ ‑ ‑
PN180
JUSTICE ROSS: All right, we will skip this witness. We will move to the next one. We will come back to this witness. No, I realise she doesn't want her first name read out. It's blanked out on the - and we will deal with that when we come to it. Let's go to the next witness.
PN181
THE ASSOCIATE: Can you please state your full name.
MR WANG: (Through interpreter) First name is Xueliang, the last name Wang.
<XUELIANG WANG, AFFIRMED [9.56 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [9.56 AM]
PN183
MR GIBIAN: Mr Wang, my name is Mark Gibian. I appear for the Australian Workers Union in this matter. Mr Wang, you prepared a witness statement for the purposes of the proceedings, assisted by an officer of the AWU. Is that statement true and correct to the best of your knowledge?‑‑‑(Through interpreter) I'm prepared to provide the statement to your Honour.
PN184
The statement is pages 12 and 13 of the Court Book. I tender the statement, your Honour.
JUSTICE ROSS: I mark the statement exhibit AWU2.
*** XUELIANG WANG XN MR GIBIAN
EXHIBIT #AWU2 STATEMENT OF XUELIANG WANG
CROSS-EXAMINATION BY MR DONAGHEY [9.59 AM]
PN186
MR DONAGHEY: Mr Xueliang, do you have your witness statement in front of you, and particularly paragraph 8 of that statement?‑‑‑(No audible reply)
PN187
JUSTICE ROSS: Excuse me, not page 8, Mr Interpreter, paragraph 8, which is on page 13 of the Court Book.
PN188
THE INTERPRETER: Thank you.
PN189
THE WITNESS: (Through interpreter) Yes, I can see paragraph 8, yes.
PN190
MR DONAGHEY: Very good. The piece rate you say there was $2.20 to $3 per 9.5 kilo tray. Did you ever make a complaint about that piece rate that you were paid?‑‑‑(Through interpreter) Because of my language barrier I didn't lodge any complaint.
PN191
Thank you. Nothing further for this witness.
PN192
JUSTICE ROSS: Anything in re-examination?
PN193
MR GIBIAN: No. Thank you, your Honour.
PN194
JUSTICE ROSS: All right. Thank you, Mr Wang. You're excused. If the interpreter can stay on the line, and we'll go to the next witness.
PN195
MR GIBIAN: I think Ms ‑ ‑ ‑
PN196
JUSTICE ROSS: Thank you. Yes, Mr Gibian?
THE WITNESS: Thank you, your Honour.
<THE WITNESS WITHDREW [10.02 AM]
PN198
MR GIBIAN: I understand Ms Hsu is available, the witness.
*** XUELIANG WANG XXN MR DONAGHEY
PN199
JUSTICE ROSS: Yes. No, she's in the lobby, I can see that. Yes, thanks. Mr Interpreter, can you ask Ms Hsu, or inform her that she may have her mute function on, so she needs to take that off? It's a little microphone with a cross through it.
PN200
THE INTERPRETER: Thank you.
PN201
THE ASSOCIATE: Can you please state your full name, Ms Hsu, for the Commission?
MS HSU: Ms Hsu.
<MS HSU, AFFIRMED [10.04 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [10.05 AM]
PN203
JUSTICE ROSS: Mr Gibian, just before you start, I'd indicate that Ms Hsu's first name has been redacted from the statement and will be removed from the transcript. I'd ask the parties to keep Ms Hsu's first name as on a confidential basis. Mr Gibian?
PN204
MR GIBIAN: Thank you, your Honour. There is also one just additional error which it might be easier if I just point out in the statement. In paragraph 6 it commences with the words "Between May and November 2021". It should obviously be 2020, not 2021 in that paragraph.
PN205
JUSTICE ROSS: All right.
PN206
MR GIBIAN: Ms Hsu, my name is Mark Gibian, I appear for the Australian Workers' Union. Can you hear me?‑‑‑(Through interpreter) Yes, I can hear you.
PN207
And you assisted the AWU by making a witness statement in these proceedings. You've read that?‑‑‑(Direct) Yes.
PN208
And is the content of that statement true and correct?‑‑‑Yes.
PN209
I tender the statement, your Honour.
*** MS HSU XN MR GIBIAN
JUSTICE ROSS: I'll mark Ms Hsu's statement as exhibit AWU3.
EXHIBIT #AWU3 WITNESS STATEMENT OF MS HSU
Mr Donaghey?
CROSS-EXAMINATION BY MR DONAGHEY [10.07 AM]
PN212
MR DONAGHEY: Thank you, your Honour.
PN213
Ms Hsu, in paragraph 5 of your statement - I should start, do you have your statement in front of you, or do you recall your statement, perhaps that's a better way of asking?
PN214
JUSTICE ROSS: Why don't you just read out what the paragraph says?
PN215
MR DONAGHEY: Very good. Ms Hsu, you say in your statement that you were paid 60 cents a kilogram to pick strawberries in Caboolture, Queensland. Did you ever make a complaint about that pay rate?‑‑‑(Through interpreter) I didn't.
PN216
Did you take - sorry, go on?‑‑‑I didn't, because I didn't know the threshold to be paid.
PN217
Did you ever discuss with the union since 2018 bringing a complaint about that pay rate?‑‑‑It's not the matter of 60 cents per kilo of strawberry which took me to the union, it was unpaid salary for something like 30, $25. This matter took me to the union.
PN218
Yes. But, did you ever discuss that particular matter of your pay rate for strawberries with the union?‑‑‑Your Honour, my answer is no. I did have a discussion amongst the co-workers, but I didn't lodge a complaint or have a discussion with the union, because I didn't know the union could come to my rescue.
PN219
Yes. And when did you first find out that – to use your words, that the union could come to your rescue?‑‑‑(Direct) Last year.
PN220
Thank you.
*** MS HSU XXN MR DONAGHEY
PN221
JUSTICE ROSS: Anything further, Mr Donaghey?
PN222
MR DONAGHEY: No, that's all for this witness, your Honour.
PN223
JUSTICE ROSS: Thank you. Mr Gibian, anything in response?
PN224
MR GIBIAN: No.
PN225
JUSTICE ROSS: Thank you for your evidence, Ms Ee. You're excused. And thank you for your assistance, Mr Interpreter. You're free to go as well.
INTERPRETER: Thank you, your Honour. Good bye.
<THE WITNESS WITHDREW [10.12 AM]
JUSTICE ROSS: We'll now go to Mr Bevan.
<ANTHONY LAWRENCE BEVAN, AFFIRMED [10.12 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [10.13 AM]
PN228
MR GIBIAN: Thank you. Mr Bevan, can you just repeat your full name for the record?‑‑‑Anthony Lawrence Bevan.
PN229
And you're an organiser for the AWU, based in Tasmania?‑‑‑Yes, your Honour, I am.
PN230
You've made two statements for the purposes of the proceedings. The first of those is dated 16 March. Do you have a copy of that with you?‑‑‑Yes, I do.
PN231
And is that statement true and correct, to the best of your knowledge and recollection?‑‑‑Yes, it is, your Honour.
Thank you. I tender that statement. It's at page 17 of the court book, your Honour.
EXHIBIT #AWU4 STATEMENT OF ANTHONY BEVAN DATED 16/03/2021
*** ANTHONY LAWRENCE BEVAN XN MR GIBIAN
PN233
Mr Bevan, there was a further statement, headed Statement in reply, on 29 June. Do you also have a copy of that statement with you?‑‑‑Yes, I do.
PN234
And is it true and correct, to the best of your knowledge and recollection?‑‑‑Yes, it is, your Honour.
I tender that statement.
EXHIBIT #AWU5 STATEMENT OF ANTHONY BEVAN DATED 29/06/2021
PN236
Thank you, Mr Bevan. I think Mr Donaghey from the Farmers' Federation wishes to ask some questions?‑‑‑Thank you.
JUSTICE ROSS: Mr Donaghey.
CROSS-EXAMINATION BY MR DONAGHEY [10.14 AM]
PN238
MR DONAGHEY: Thank you, your Honour. Mr Bevan, do you have your first statement, 16 March, in front of you?‑‑‑Yes, I do.
PN239
Paragraph 23 refers to your observations about earnings well below the minimum rate. You say there that you've seen well below the minimum rate, plus the piece work loading. Does that mean that what you're seeing is an amount that is close to or well below the piece rate, as – in your observations of picking in Tasmania?‑‑‑Well below the piece picking rate (indistinct) 15 per cent.
PN240
Yes. And those that you've seen, are there many complaints made to your office, or to your branch of the union?‑‑‑Yes, there is.
PN241
And of those many complaints that you've had, how many have you assisted in bringing a complaint to one of the available authorities, about the underpayment of piece rates?‑‑‑We've done investigations internally into it.
PN242
If you just focus on the question for a moment. I'm asking you about whether you've assisted them in bringing complaints to administrative authorities, or to other authorities. Can you give a number that you've been able to assist in that way?‑‑‑I've dealt directly with the company in relation to errors, perceived errors, not to the authorities.
*** ANTHONY LAWRENCE BEVAN XXN MR DONAGHEY
PN243
So your practice is to start by going to the company and asking them to address the pay rate, or something similar to that?‑‑‑Correct.
PN244
And of those that you've assisted in that way, how many have been issued as a claim in a court or commission or tribunal?‑‑‑None.
PN245
Nothing further for this witness, your Honour.
PN246
JUSTICE ROSS: Mr Bevan, it's Justice Ross. I had two short matters I wanted to raise with you?‑‑‑Yes, your Honour.
PN247
In your first statement, exhibit AWU4, if I can take you to what is page 9 of mine, which is in the attachments. My copy is difficult to read at the top of it. The same is true of the document that's scanned at pages 11, 12 and 13. Is that just because that's the best you've got, in terms of the document, or is it my copy?‑‑‑That's the best I've got, your Honour.
PN248
All right, that's fine. Can I also take you to your reply statement at paragraph 8?‑‑‑Yes, your Honour.
PN249
You expressed a view there that any work outside picking should be on the hourly rate, and not a piece rate, because – well, basically, you can't weigh the fruit. I just wanted to test that proposition with you a bit. In terms of weeding, pruning, et cetera, couldn't that be done on a row basis?‑‑‑It could be, but there's no – there's no payment for it. So what happens is, my understanding is that they're allocated a tunnel to pick in, and as they proceed through that tunnel, they pick the good fruit, and (indistinct) they prune the flower, et cetera.
PN250
I see. Yes, I'm sorry, I've misunderstood the proposition you were putting. This is work that's ancillary to fruit picking that is required of them while they're picking the fruit, for which they're not paid; is that the proposition?‑‑‑Correct.
PN251
I follow. I thought you meant, if you were just doing pruning as your sole function, that could - - - ?‑‑‑There have been times that I've been notified about that they have been allocated a tunnel that has been picked as well. So, generally, they will try and do it as they – maintain the block as they're picking, but there's been times where they have reverted back to a block with minimal fruit on it, to then effectively do maintenance.
*** ANTHONY LAWRENCE BEVAN XXN MR DONAGHEY
PN252
Yes, all right. Thanks, Mr Bevan. I don't know if anything arises from that, Mr Donaghey, that you wanted to ask.
PN253
MR DONAGHEY: Not from me, your Honour, no.
PN254
JUSTICE ROSS: All right. Mr Gibian, any re-examination?
PN255
MR DALTON: Your Honour, sorry - - -
PN256
JUSTICE ROSS: Yes, Mr Dalton.
PN257
MR DALTON: This is a question that arises from the witness's answer to your Honour's question that I think, as a matter of fairness, I should put to this witness, because we may have our – Mr King give some evidence in relation to it.
PN258
JUSTICE ROSS: Certainly.
PN259
MR DALTON: Mr Bevan, the tasks of weeding, pruning and deflowering: your answer to his Honour's question was that the pickers are required to do those tasks as they work their way through the tunnel, as part of their picking duties. Is that correct?‑‑‑That's my understanding.
PN260
Yes. And of course, that task, and the time and motion involved in doing that, could be taken into account in setting the piece rate; correct?‑‑‑That, I don't know.
PN261
Just bear with me a moment. We understand that Mr King's evidence, from Costa Group, who is an operations manager for Berry's operations, will be to the effect that it is taken into account in setting the piece rate. You wouldn't be in a position to dispute that evidence, would you?‑‑‑Again, the only information I've been provided is from pickers that generally say that they're required to do these tasks, but it doesn't equate to a piece rate per se, it equates to the fruit that they pick is what they get paid for.
PN262
Yes. And pruning: just to be clear, with pruning, generally pruning would occur in the off season?‑‑‑Or at the tail end of the season, is my understanding.
PN263
Yes. No more questions.
PN264
JUSTICE ROSS: Thank you, Mr Dalton. Mr Gibian, any re‑examination?
*** ANTHONY LAWRENCE BEVAN XXN MR DONAGHEY
PN265
MR GIBIAN: No, nothing arising. Thank you, Mr Bevan.
JUSTICE ROSS: Thank you for your evidence, Mr Bevan. You're excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [10.21 PM]
PN267
JUSTICE ROSS: Call the next witness.
PN268
THE ASSOCIATE: Thank you, Mr Cameron. Can you please state your full name for the Commission.
MR CAMERON: Darren Michael Cameron.
<DARREN MICHAEL CAMERON, AFFIRMED [10.22 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [10.22 AM]
PN270
MR GIBIAN: Mr Cameron, your full name is Darren Michael Cameron?‑‑‑It is.
PN271
And you're an organiser with the AWU in Victoria?‑‑‑New South Wales.
PN272
New South Wales, I'm sorry. And you've made a statement for the purposes of these proceedings which runs to three pages and 18 paragraphs. Do you have a copy of that with you?‑‑‑I do.
PN273
Is it true and correct to the best of your knowledge and recollection?‑‑‑It is.
PN274
I tender that statement, your Honour.
JUSTICE ROSS: I will mark Mr Cameron's statement as exhibit AWU6.
EXHIBIT #AWU6 WITNESS STATEMENT OF DARREN CAMERON
CROSS-EXAMINATION BY MR DONAGHEY [10.23 AM]
PN276
*** DARREN MICHAEL CAMERON XN MR GIBIAN
*** DARREN MICHAEL CAMERON XXN MR DONAGHEY
MR DONAGHEY: Mr Cameron, do you have a copy of the witness statement to which my learned friend referred in front of you?‑‑‑I do.
PN277
You've given some evidence in that statement about your involvement in assisting workers both in Victoria and in New South Wales. In the last year how many complaints about or relating to piece rates have you received in your capacity as organiser?‑‑‑In the last year, none.
PN278
None. In the year previous - excuse me? I'm sorry, I didn't hear your answer?‑‑‑I have not been assigned to the horticultural industry in the past 12 months. I've moved to construction.
PN279
I understand. So your role in Snowy Mountains in Canberra is not in relation to horticulture any longer, it was your previous position. Is that a correct understanding?‑‑‑That is correct.
PN280
And in that previous position you were involved in north-east Victoria and western New South Wales members?‑‑‑Correct.
PN281
In acting for those western New South Wales and north-east Victoria members, how many complaints about piece rates did you receive in the last year of your doing that work?‑‑‑The last year of my doing that work would have been 2019 to 2020 in north-east Victoria, particularly around Shepparton and grape picking around Rutherglen. And I would say in that time I received upwards of 15 complaints.
PN282
Of those 15 complaints that you've referred to, Mr Cameron, how many of those did you respond to by approaching the employer or the grower to deal with those complaints?‑‑‑I would say none.
PN283
What then did you do to assist representing the members of the AWU?‑‑‑In all of those cases the complaints or the inquiries came from people who were unwilling to become members because they felt they wouldn't get work, and I was unable to justify further action for people that weren't members. Also the award itself is largely unenforceable.
*** DARREN MICHAEL CAMERON XXN MR DONAGHEY
PN284
Mr Cameron, what you're saying is that the resources of those complaining don't run to utilising the union's advice. Is that what you're saying?‑‑‑Generally, particularly Pacific Islanders, simply can't afford the union fees, even the reduced fee of $9 a month. And in addition, the current structure of the award makes it impossible to enforce the provision around what is an average competent picker that sets the piecework rate.
PN285
You're aware that avenues exist for complaint aside from the union, aren't you?‑‑‑I'm aware of people in one instance in Shepparton engaging ‑ ‑ ‑
PN286
Is that a yes or a no? You're aware that there are avenues aside from the union?‑‑‑I've seen people approach a lawyer.
PN287
Yes. But also the Fair Work Ombudsman exists, doesn't it?‑‑‑I've never seen the Fair Work Ombudsman take any action of a complaint in horticulture.
PN288
Nothing further for this witness, your Honour.
JUSTICE ROSS: Anything in re‑examination, Mr Gibian?
RE-EXAMINATION BY MR GIBIAN [10.26 AM]
PN290
MR GIBIAN: Thank you, Mr Cameron. You started, in answer to a question, referring to an incident I think involving people in Shepparton. What occurred in that incident?‑‑‑In that incident, so I became aware of - and I actually became aware through the Fruit Growers Cooperative, who raised it with me during my discussion - that they had received solicitor's letters from a local law firm alleging underpayment of wages.
PN291
Do you know what arose from those letters?‑‑‑I do not know how that resolved, no.
PN292
You also said in answer to the questions that you were asked that you regarded the award currently as largely unenforceable. Why did you hold that view?‑‑‑Because the piecework rate is set that in the award it states that the piecework rate should allow an average competent picker to earn a percentage - and from memory I believe it's 25 per cent - above the award rate for the same time-equivalent work. However, there's never any way of determining what is an average competent picker, and there's no mechanism within the award to do that, and it's impossible because of the variations in the fruit types, and even within the same crop, and the varying piecework rates. So there's no empirical way to determine what is an average competent picker.
PN293
Thank you, Mr Cameron. Those are the additional matters.
PN294
JUSTICE ROSS: Thank you. Nothing further for Mr Cameron?
*** DARREN MICHAEL CAMERON RXN MR GIBIAN
Thank you for your evidence, Mr Cameron. You're excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [10.28 AM]
PN296
JUSTICE ROSS: That brings us - Mr Cameron was the last of the witnesses scheduled between 9.30 and 10.30. it was proposed that we take a break between 10.30 and 10.45. Look, it's probably - I think we should probably stick to the breaks rather than try to bring witnesses in, because they know when they're supposed to be available. Can I encourage you to keep the connection to Teams open; put yourself on mute and do whatever else you want to do; and we will come back to - Mr Gulay will be the first witness at 10.45. All right. Thank you.
SHORT ADJOURNMENT [10.29 AM]
RESUMED [10.46 AM]
PN297
JUSTICE ROSS: We will call the next witness, Mr Gulay.
PN298
THE ASSOCIATE: Can you please state your full name for the Commission.
MR GULAY: Sure. Philip James Gulay.
<PHILIP JAMES GULAY, AFFIRMED [10.46 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [10.47 AM]
PN300
MR GIBIAN: Thank you, Mr Gulay. My name is Mark Gibian. I appear for the AWU in the matter. Your full name is Philip James Gulay?‑‑‑That's correct.
PN301
And you're the Mildura region organiser for the AWU?‑‑‑Yes, correct.
PN302
And you've made a statement for the purposes of these proceedings that I think runs to some four pages and 23 paragraphs. Have you got a copy of that with you?‑‑‑I do, yes.
PN303
And is it true and correct to the best of your knowledge and recollection?‑‑‑It is, yes.
PN304
I tender the statement, your Honour.
*** PHILIP JAMES GULAY XN MR GIBIAN
JUSTICE ROSS: Thank you. I will mark Mr Gulay's statement as exhibit AWU7.
EXHIBIT #AWU7 STATEMENT OF PHILIP GULAY
CROSS-EXAMINATION BY MR DONAGHEY [10.47 AM]
PN306
MR DONAGHEY: Mr Gulay, I presume you have a copy of your witness statement in front of you. Can you see paragraph 18 in that document? On my copy it's on page 3?‑‑‑Yes.
PN307
It starts with the words, "I spoke with a local worker recently." Do you see those words?‑‑‑I do, yes.
PN308
Was that local worker - you don't describe that person as a member. Were they a member of the AWU?‑‑‑I don't believe they were, no.
PN309
You receive complaints and inquiries about pay rates regularly or only seldom?‑‑‑Regularly through harvest periods.
PN310
Of those that you've received in the last year, are you able to tell the t how many complaints from piece rate workers you've received in the last 12 months?‑‑‑In the last 12 months, I wouldn't be able to give an exact figure, but they're ‑ ‑ ‑
PN311
An approximate one if you could, please?‑‑‑Approximately there would be probably somewhere between 20 and 30, I would imagine.
PN312
And of those 20 or 30, how many were you able to assist?‑‑‑Not too many. The majority of them are itinerant workers and moving around.
PN313
And when you assist ‑ ‑ ‑
PN314
JUSTICE ROSS: I'm sorry, Mr Donaghey, you might just clarify what you mean by assist.
PN315
MR DONAGHEY: I was about to go there.
PN316
JUSTICE ROSS: No, that's fine. Sorry, yes.
*** PHILIP JAMES GULAY XXN MR DONAGHEY
PN317
MR DONAGHEY: What steps did you take to assist those that you were able to help, Mr Gulay?‑‑‑We provide them with advice on how they could go about addressing it with their employer. At times I would step in and assist them with approaching their employer if they were not comfortable in doing so, and ‑ ‑ ‑
PN318
Yes, and - I'm sorry, I missed part of your answer?‑‑‑That's okay ‑ ‑ ‑
PN319
You assist them by stepping in and - was that all?‑‑‑Yes.
PN320
Yes, I understand. And of those 20 or 30 that you've named in your previous answer as coming to you in the last 12 months, how many of those did you assist by taking further, beyond the employer, say to the Fair Work Ombudsman or someone else?‑‑‑None of them that I've assisted have gone further than dealing with the employer.
PN321
Thank you, your Honour. That's the final cross‑examination question for this witness.
PN322
JUSTICE ROSS: Thank you, Mr Donaghey. Mr Gibian, anything in re‑examination?
MR GIBIAN: Just one matter.
RE-EXAMINATION BY MR GIBIAN [10.51 AM]
PN324
MR GIBIAN: Mr Gulay, you were asked how many of the 20 or 30 complaints that you had received in the last 12 months you were able to assist in a general way, and you answered not many, the majority are itinerate workers. Do you recall saying that?‑‑‑Yes, that's correct.
PN325
Why does that or why does the fact that they are itinerate workers affect your capacity to provide assistance to those workers?‑‑‑Mainly due to the nature of them moving around through different regions. There were some of them that wouldn't address the issue and weren't really prepared to take it much further than, sort of, giving any assistance because they would move on and get another job. And also they would, yes, as I sort of stated they would not stay in the area too often.
PN326
Thank you, Mr Gulay.
*** PHILIP JAMES GULAY RXN MR GIBIAN
PN327
JUSTICE ROSS: Nothing arising?
PN328
MR GIBIAN: No, thank you.
JUSTICE ROSS: Thank you for your evidence, Mr Gulay. You're excused. We'll go to the next witness?‑‑‑Thank you.
<THE WITNESS WITHDREW [10.52 AM]
PN330
THE ASSOCIATE: Mr Cowdrey, can you please state your full name for the Commission?
MR COWDREY: Ronald Brian Cowdrey.
<RONALD BRIAN COWDREY, AFFIRMED [10.53 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [10.53 AM]
PN332
JUSTICE ROSS: Mr Gibian?
PN333
MR GIBIAN: Thank you, Mr Cowdrey. My name is Mark Gibian, I'm appearing for the AWU in these proceedings. You've just given your - could you just repeat your full name for the record?‑‑‑Ronald Brian Cowdrey.
PN334
And you're an organiser for the AWU and also vice president of the New South Wales branch?‑‑‑That's correct.
PN335
You've made a statement for the purposes of these proceedings dated 9 March, I think. Do you have a copy of that with you?‑‑‑I do.
PN336
And is it true and correct to the best of your knowledge and recollection?‑‑‑It is.
PN337
Yes. Thank you. I tender the statement, your Honour.
JUSTICE ROSS: I'll mark Mr Cowdrey's statement as exhibit AWU8.
EXHIBIT #AWU8 WITNESS STATEMENT OF RONALD BRIAN COWDREY DATED 09/03/2021
*** RONALD BRIAN COWDREY XN MR GIBIAN
Mr Donaghey?
CROSS-EXAMINATION BY MR DONAGHEY [10.54 AM]
PN340
MR DONAGHEY: Yes, thanks, your Honour.
PN341
Mr Cowdrey, I presume you have a copy of your statement there in front of you; is that correct?‑‑‑I do.
PN342
And in para 2 of your statement you list and you include in your duties that you negotiate EBAs and assist members. How many, if you're able to say, complaints from those in or relation to piece workers have you received in the last 12 months?‑‑‑In the last 12 months would be approximately maybe a dozen.
PN343
And of those dozen you say that you - are those included in the group that you're assisting when you give that evidence in para 2?‑‑‑That would be correct.
PN344
What's the main method of your assistance for those members?‑‑‑What do you mean by method?
PN345
What do you do? What do you do to help them?‑‑‑I try and help them with their industrial complaints.
PN346
Yes?‑‑‑If they've been underpaid I try and assist them with what they need to be paid under the piece rates, or whether they're on an hourly rate. I try and chase up pay slips for them, and just their general day-to-day problems that they have.
PN347
So, is included in that assistance you speaking to their employers and asking for those pay slips or doing similar things like that?‑‑‑If the member asks me to. In a lot of these cases they're concerned about me approaching the employers for fear of losing their job.
PN348
And how many of those 12 that you've assisted by doing the things that you describe have resulted in a claim for back pay over the last 12 months?‑‑‑I think maybe three.
PN349
Three. And is that a usual number for a typical year, or is that a low number for a typical year?‑‑‑Depends on the industry.
*** RONALD BRIAN COWDREY XXN MR DONAGHEY
PN350
I'm sorry, can you explain that answer? What do you mean by it depends on the industry? Depends on what in the industry?‑‑‑Where it's occurring. So, in the horticultural industry it depends on how many members come in and ask me for my help.
PN351
I understand. But, you're not able to say whether that's an unusually high number, three, or an unusually low number for a 12 month period?‑‑‑I'm unable to say that because it just ‑ ‑ ‑
PN352
I understand?‑‑‑Yes.
PN353
Nothing further for this witness, your Honour.
JUSTICE ROSS: Anything arising, Mr Gibian?
RE-EXAMINATION BY MR GIBIAN [10.57 AM]
PN355
MR GIBIAN: Mr Cowdrey, just one matter. You referred to having received 12 complaints or something in that region in the last 12 months in relation to piece rates. Were they complaints from members of the AWU, or including non-members?‑‑‑Both.
PN356
Both?‑‑‑Yes.
PN357
Thank you, Mr Cowdrey?‑‑‑No problem.
JUSTICE ROSS: Nothing further for this witness. Thank you, Mr Cowdrey, for your evidence. You're excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [10.57 AM]
PN359
JUSTICE ROSS: We'll call the next witness.
PN360
THE ASSOCIATE: Can you please state your full name for the Commission?
MR ROULSTONE: My full name is Shane Roulstone.
<SHANE MICHAEL ROULSTONE, AFFIRMED [10.58 AM]
*** RONALD BRIAN COWDREY RXN MR GIBIAN
EXAMINATION-IN-CHIEF BY MR GIBIAN [10.58 AM]
PN362
JUSTICE ROSS: Mr Gibian?
PN363
MR GIBIAN: Thank you, Mr Roulstone, can you just repeat your full name for the record?‑‑‑Shane Roulstone. My middle name is Michael if that's relevant.
PN364
And you're the national organising campaigns director for the AWU?‑‑‑That is correct.
PN365
And you've made a statement for the purposes of these proceedings, which is dated 16 March, I think. Do you have a copy of that with you?‑‑‑I do, that is correct.
PN366
And is that statement true and correct to the best of your knowledge and recollection?‑‑‑It is, yes.
PN367
I tender the statement, your Honour.
JUSTICE ROSS: I'll mark Mr Roulstone's statement as exhibit AWU9.
EXHIBIT #AWU9 WITNESS STATEMENT OF SHANE MICHAEL ROULSTONE DATED 16/03/20201
Mr Donaghey?
CROSS-EXAMINATION BY MR DONAGHEY [10.59 AM]
PN370
MR DONAGHEY: Mr Roulstone, do you have a copy of your witness statement in front of you, and in particular paragraph 5 of that statement?‑‑‑I do.
PN371
The para 5 commences with the words, "My role requires regularly engagement", I think it's meant to be "regular engagement". Of that engagement does that include complaints made by members of the AWU about piece rates?‑‑‑It does include those complaints, or those engagements do include the complaints made to the AWU, yes.
*** SHANE MICHAEL ROULSTONE XXN MR DONAGHEY
PN372
Thank you. And in that last 12 months how many, if you're able to say, have you received that fit that description, that is, that they are complaints from members about piece rates?‑‑‑In the last 12 months?
PN373
Yes?‑‑‑I haven't got the figures in front of me, but it'd certainly be over 50, probably less than 100 in the last 12 months.
PN374
Over 50. And have you - you refer to engagement in your paragraph 5, does engagement include assistance? Do you assist members of the AWU when they bring complaints to you?‑‑‑Yes, I do.
PN375
Does that assistance include contact with employers and asking about how pay rates are calculated and that sort of thing?‑‑‑Yes, it does.
PN376
Of those 50 complaints that you've received how many in the last 12 months would've resulted in a claim for back pay or a complaint about back pay?‑‑‑The vast bulk of those complaints are around underpayments and claims for back pay.
PN377
Have any of them proceeded to a more formal stage, such as a complaint to the Fair Work Ombudsman?‑‑‑We have referred a number of matters to the Fair Work Ombudsman in the last 12 months, yes.
PN378
Are you able to give an approximate figure of how many times that has happened, just to the best of your recollection?‑‑‑Best of my recollection that would be less than 10, but I would say somewhere around seven or eight.
PN379
So not exceeding 10, and probably seven or eight is the right figure. Is that correct?‑‑‑In that area, to the best of my recollection, yes.
PN380
Thank you. Nothing further for this witness.
PN381
JUSTICE ROSS: Anything in re‑examination, Mr Gibian?
MR GIBIAN: Just one matter.
RE-EXAMINATION BY MR GIBIAN [11.01 AM]
*** SHANE MICHAEL ROULSTONE RXN MR GIBIAN
PN383
MR GIBIAN: Of the - you referred to - you indicated that you had been involved in referring seven or eight matters to the Fair Work Ombudsman?‑‑‑That is correct.
PN384
Is that something that the union would do only if the individual or individuals concerned cooperated and wanted the union to take that step?
PN385
JUSTICE ROSS: Don't lead, Mr Gibian.
PN386
MR GIBIAN: I do apologise.
PN387
What was it about those matters that caused the AWU to take the step of forwarding them to the Fair Work Ombudsman?‑‑‑They're matters we would not have been able to resolve with the employer, or the employee had refused to try and resolve the matter with us, we would then refer it to the Fair Work Ombudsman. And we would only do it on the basis it was a reasonably significant or serious matter. We wouldn't do it for trivial stuff.
PN388
Thank you. That's the additional matter. Thank you, Mr Roulstone.
JUSTICE ROSS: No further questions? Thank you for your evidence, Mr Roulstone, you're excused?‑‑‑Thank you, your Honour.
<THE WITNESS WITHDREW [11.02 AM]
PN390
JUSTICE ROSS: We will call on the next witness.
PN391
THE ASSOCIATE: Mr Carter, can you please state your full name for the Commission.
MR CARTER: Stephen Peter Carter.
<STEPHEN PETER CARTER, AFFIRMED [11.03 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [11.03 AM]
PN393
MR GIBIAN: Thank you, Mr Carter. My name is Mark Gibian. I'm appearing for the AWU in these proceedings. Can you hear me?‑‑‑Yes.
*** STEPHEN PETER CARTER XN MR GIBIAN
PN394
Please repeat your full name for the record?‑‑‑Stephen Peter Carter.
PN395
And you're the New South Wales north coast - or a New South Wales north coast organiser for the AWU?‑‑‑Yes.
PN396
And you made a statement for the purposes of these proceedings concerning the horticulture award. Do you have a copy of that with you?‑‑‑Yes.
PN397
The statement is dated 16 March 2021, I think. Is it true and correct to the best of your knowledge and recollection?‑‑‑Yes.
PN398
I tender the statement, your Honour.
JUSTICE ROSS: I will mark that exhibit AWU10.
EXHIBIT #AWU10 STATEMENT OF STEPHEN CARTER DATED 16/03/2021
PN400
MR GIBIAN: I think Mr Donaghey will ask you some questions.
PN401
JUSTICE ROSS: Sorry, there's a reply statement.
PN402
MR GIBIAN: I'm sorry, there is a second statement. I do apologise.
PN403
Mr Carter, you also made a further statement headed Statement in Reply of 30 June 2021?‑‑‑Yes.
PN404
Do you have a copy of that with you as well?‑‑‑Yes.
PN405
And is it true and correct to the best of your knowledge and recollection?‑‑‑Yes.
PN406
I tender that statement as well, your Honour.
JUSTICE ROSS: I will mark that exhibit AWU11.
EXHIBIT #AWU11 REPLY STATEMENT OF STEPHEN CARTER DATED 30/06/2021
*** STEPHEN PETER CARTER XN MR GIBIAN
PN408
Mr Donaghey?
PN409
MR DONAGHEY: Your Honour, sorry, I've just lost my place briefly in this very large electronic document. If you just bear with me a sec.
JUSTICE ROSS: No, that's fine.
CROSS-EXAMINATION BY MR DONAGHEY [11.05 AM]
PN411
MR DONAGHEY: Mr Carter, can you hear me clearly?‑‑‑Yes.
PN412
Do you have a copy of paragraph 7 of your witness statement in front of you?‑‑‑Yes.
PN413
Is it a part of your duties to assist those who complain about piece rates in your Northern Rivers area of New South Wales?‑‑‑Yes.
PN414
And in the last 12 months are you able to give an approximate number of complaints that you've received from those, either on piece rates or in relation to piece rates?‑‑‑In the last 12 months I would have probably received probably between six and 10 informal complaints.
PN415
Yes. When you say those are informal complaints, how are they constituted? Do people ring you up on the phone, or do they come and see you in your office? How do they take place?‑‑‑Various forums: in my office; phone calls; in social outings.
PN416
Yes, understood. And those six to 10 that you've referred to in the last 12 months, do you assist those members by approaching employers or asking for details of piece rates, or do you do something else?‑‑‑In my past, prior to the last 12 months, I had dealt with them on a more formal basis; however, I have run into barriers when it gets to a formal level, given some of the references within the piece rate provisions of the award. So previously I had gathered information, did comparisons against pay slips, and in my best endeavours, hours worked on site, and had a couple of significant matters that virtually couldn't be pursued due to the award provision. I did raise those with the employer, both Costa Berry Exchange, and Owen Pacific, a labour hire company who supplies labour, and I've detailed some of those experiences later in my statement, I believe.
*** STEPHEN PETER CARTER XXN MR DONAGHEY
PN417
And when you say "a more formal basis", when you said that you were previously able to pursue them on a more formal basis, does that more formal basis include a complaint to an authority like the Fair Work Ombudsman?‑‑‑Not to that level, not to that extent. With my complaint ‑ ‑ ‑
PN418
Sorry, just to provide clarity, just so I understand your answer, could you please explain what you mean by those words, "a more formal basis", then?‑‑‑Formal means written notification to the employer highlighting the below minimum award rates compared to the piece rates.
PN419
And of those that you have made on a more formal basis, how many of those would have made it to that higher level of the Fair Work Ombudsman or some other authority?‑‑‑Well, no, none would have. I accessed some legal advice. In the Costa matter where I had 30 to 40 Burmese members who were on a piece rate for pruning, I notified the employer, Costa Berry Exchange, of the below award minimum rates, and the willingness for the members to go onto an award minimum rate; and I highlighted the under-award minimum rates in many examples for them; and to their credit they did convert them to award minimum rates of pay at level 1 and level 2 for the more skilled employees. However, 12 months later they were all made redundant and had never - not to my knowledge have any of those employees been re-engaged.
PN420
Nothing further for this witness, your Honour.
PN421
JUSTICE ROSS: Thank you, Mr Donaghey. Anything in re‑examination, Mr Gibian?
MR GIBIAN: Just one matter.
RE-EXAMINATION BY MR GIBIAN [11.09 AM]
*** STEPHEN PETER CARTER RXN MR GIBIAN
PN423
MR GIBIAN: You described having dealt with matters more formally prior to the last 12 - or complaints more formally prior to the last 12 months by engaging in calculations and formally making representations to the employer. You said in answer to those questions that they couldn't be pursued further because of the award. Why did you say that?‑‑‑The advice I received from our industrial advocates was that there is not a very strong reference or provision that guarantees a minimum rate of pay. I run into the issue of "the average worker". Some of these employees that I ended up getting converted were industry best practice at pruning. They had been doing it for between - up to 16 years, some individuals, and they were still receiving below award rate. So the provision is very subjective, and the advice I got that it really couldn't be formally pursued. But, however, I did get a reasonable outcome with the employer via conversion; however, 12 months later they were made redundant and never re-engaged, as far as I'm aware.
PN424
Yes, thank you, Mr Carter.
JUSTICE ROSS: Thank you. Nothing arising? Thank you for your evidence, Mr Carter. You're excused. We'll call on the next witness.
<THE WITNESS WITHDREW [11.11 AM]
PN426
THE ASSOCIATE: It appears that Mr Ali's phone has gone to voicemail. I can try and give him another call.
PN427
JUSTICE ROSS: We might try and send him a text message as well.
PN428
THE ASSOCIATE: Sure. I will send him a text message. In the meantime, Mr Robertson is already sitting in the lobby, if you wanted to proceed on to the next block of witnesses.
PN429
JUSTICE ROSS: Sure. Are you content with that course, Mr Gibian and Mr Donaghey?
PN430
MR GIBIAN: Mr Crawford just spoke to him, and I think he is endeavouring to dial back in right now.
PN431
JUSTICE ROSS: That's fine. We'll deal with that, because I think Mr Robertson is the UWU's witness, but if we have time, we can always – we'll deal with him shortly. So let's see what Mr Ali does.
PN432
MR GIBIAN: Yes. Unless it doesn't work for some reason, I understand he should be on in a moment.
JUSTICE ROSS: All right.
<SULEIMAN ALI, AFFIRMED [11.14 AM]
EXAMINATION-IN-CHIEF BY MR GIBIAN [11.14 AM]
PN434
JUSTICE ROSS: Mr Gibian.
*** SULEIMAN ALI XN MR GIBIAN
PN435
MR GIBIAN: Thank you, your Honour. Mr Ali, my name is Mark Gibian. I appear for the AWU. You've just given your name as Suleiman Ali; that's correct?‑‑‑Yes.
PN436
And you're an organiser with the Western Australian branch of the AWU?‑‑‑Yes.
PN437
And you've made a statement for the purposes of these proceedings on 3 March of this year. Do you have a copy of that with you?‑‑‑Yes.
PN438
And is its contents true and correct, to the best of your knowledge and recollection?‑‑‑Yes.
I tender the statement, your Honour.
EXHIBIT #AWU12 STATEMENT OF SULEIMAN ALI, DATED 03/03/2021
JUSTICE ROSS: Mr Donaghey.
CROSS-EXAMINATION BY MR DONAGHEY [11.15 AM]
PN441
MR DONAGHEY: Mr Ali, can you hear me clearly?‑‑‑Yes.
PN442
Could I ask you to look at paragraph 9 of your witness statement. I think it's on page 3 of that document?‑‑‑Yes.
PN443
In paragraph 9, you recount when Sue Pethik and yourself went to Gingham, 'because a member had told us she was being underpaid', that compliant that was made to you, did that result in any discussions with the employer?‑‑‑No.
PN444
So that complaint did not result in any complaint to the Fair Work Ombudsman?‑‑‑No.
PN445
Have you received many complaints in the last 12 months by people who are paid piece rates?‑‑‑No.
PN446
Not many? Are you able to give a number?‑‑‑Not off my head, sorry.
*** SULEIMAN ALI XXN MR DONAGHEY
PN447
All right, thank you. Nothing further, your Honour.
PN448
JUSTICE ROSS: Any re-examination?
PN449
MR GIBIAN: No, thank you, your Honour.
JUSTICE ROSS: Thank you, Mr Ali. You're excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [11.16 AM]
PN451
JUSTICE ROSS: That concludes the witnesses in this section. But I note that Mr Robertson is in the lobby, and if it's convenient to you, Ms Burke and Mr Donaghey, we might take his evidence now. Are you content with that course?
PN452
MS BURKE: (Indistinct).
PN453
JUSTICE ROSS: I'm sorry, Ms Burke?
PN454
MR GIBIAN: I'm sorry, your Honour, I was just going to raise Mr Costa's evidence. I think there was some discussion about that on the – at the case conference that occurred last week, that I wasn't able to be present at. And I think – we had considered the matter, and are content to tender the reports that are annexed to his two statements.
PN455
As I understand it, his role in the preparation of those – the surveys and the preparation of the reports consequent upon the surveys was in a sense of being responsible for ensuring that it occurred, rather than direct participation. And we didn't, in that circumstance, imagine that there was any need for him to be cross-examined, or any utility in him being cross-examined about them.
PN456
JUSTICE ROSS: Let me ask Mr Donaghey about that.
PN457
MR GIBIAN: We have (indistinct) available if needed, though.
PN458
JUSTICE ROSS: Mr Donaghey, given that they're going to tender the reports separately, do you require Mr Costa for cross-examination? Are you there, Mr Donaghey? You may be on mute.
*** SULEIMAN ALI XXN MR DONAGHEY
PN459
MR DONAGHEY: I was on mute, your Honour. Apologies. My preliminary view is, given that the reports are intended to be tendered, we don't require Mr Costa for cross-examination, because my understanding is, Mr Costa is merely referring to reports that he has obtained, and I thought that was clear from the 7 July hearing. So, yes, we're content to simply have those tendered by consent, and make submissions about that at a later time.
PN460
JUSTICE ROSS: All right, thank you. Ms Burke, can I go back to you. Are you content to deal with Mr Robertson's evidence now?
PN461
MS BURKE: Yes, your Honour.
PN462
JUSTICE ROSS: You too, Mr Donaghey?
PN463
MR DONAGHEY: Yes, your Honour.
JUSTICE ROSS: All right. Well, we'll call Mr Robertson.
<GEORGE ALEXANDER RAPHAEL ROBERTSON, SWORN [11.19 AM]
EXAMINATION-IN-CHIEF BY MS BURKE [11.20 AM]
PN465
JUSTICE ROSS: Ms Burke.
PN466
MS BURKE: Thank you. Mr Robertson, can you please repeat your full name?‑‑‑George Alexander Raphael Robertson.
PN467
And your address?‑‑‑833 Bourke Street, Docklands, Victoria.
PN468
And your occupation?‑‑‑Union official.
PN469
Thank you. Have you prepared a statement for use in this proceeding?‑‑‑I have.
PN470
Do you have a copy of it there with you?‑‑‑I do.
PN471
And is that statement 39 paragraphs, with four annexures?‑‑‑Yes, it is.
*** GEORGE ALEXANDER RAPHAEL ROBERTSON XN MS BURKE
PN472
And just for the transcript, that's at electronic court book 2327. Mr Robertson, are the contents of this statement true and correct?‑‑‑They are.
Thank you. I tender the statement.
EXHIBIT #UWU1 STATEMENT OF GEORGE ROBERTSON
PN474
Thank you. Mr Robertson, just wait there, and there'll be some questions.
JUSTICE ROSS: Mr Donaghey.
CROSS-EXAMINATION BY MR DONAGHEY [11.21 AM]
PN476
MR DONAGHEY: Thank you, your Honour. Mr Robertson, could I get you to turn to paragraph 6 of your witness statement, please?‑‑‑Yes.
PN477
In that paragraph you give evidence that you've met and advised hundreds of farm workers across Australia. Does that met and advised hundreds of farm workers does that include dealing with complaints or inquiries about piece rates from UWU members?‑‑‑Yes, it does.
PN478
And in the last 12 months, if you're able to say, how many such complaints and inquiries about or in relation to piece rates have you received in your capacity as an organiser?‑‑‑In the last 12 months?
PN479
Yes?‑‑‑Are you talking about me individually or my ‑ ‑ ‑
PN480
you individually in your dealing with the hundreds of farm workers that you refer to in paragraph 6(a), you know, how many have you dealt with yourself?‑‑‑How many individuals?
PN481
Yes?‑‑‑Look, in the last 12 months in relation to piece rates?
PN482
Yes?‑‑‑I'd say over 100.
*** GEORGE ALEXANDER RAPHAEL ROBERTSON XXN MR DONAGHEY
PN483
Over 100. And of those over 100 how many of those have resulted in a contact by you with employers or growers seeking to clarify what were the piece rates?‑‑‑I'm sorry, as opposed to the employees themselves seeking to clarify rates or the employers?
PN484
Yes, exactly, how many of those have resulted in you having contact with an employer in relation to those piece rates, just to the best of your recollection, Mr Robertson?‑‑‑To the best of my recollection would be - it's difficult to say. Look, I'm not sure. You know, it'd certainly be four or five occasions, but I'm not sure.
PN485
Thank you. So, four or five occasions is your best recollection, Mr Robertson?‑‑‑Yes.
PN486
And of those four or five occasions, how many, if any, have gone to a more formal complaint, such as the Fair Work Ombudsman?‑‑‑We don't necessarily tend to refer complaints to the Ombudsman unless the workers themselves decide that that's something that they would like to pursue. But, I think at least - I can recall at least two occasions where we've referred individuals to - where we've told individuals to contact the Ombudsman.
PN487
Are you aware if those two individuals actually made that complaint to the Fair Work Ombudsman, or are you not aware?‑‑‑I'm not aware.
PN488
Nothing further, your Honour.
PN489
JUSTICE ROSS: Thank you. Re-examination, Ms Burke?
PN490
MS BURKE: No, no re-examination, your Honour.
PN491
JUSTICE ROSS: Can I ask a point of clarification, Mr Robertson? You've said - my understanding of your evidence was you've received over 100 complaints or inquiries about piece rates from AWU members in the last 12 months, and there were four or five occasions on which you contacted the employer. What did you do with the others?‑‑‑I'm sorry, my understanding of the question from Mr Donaghey was that on how many individual workers had I met and advised in relation to piece rates rather than how many individual, I guess, complaints had I personally received. So, there are, you know, groups of workers who would contact us for example, so a slight distinction there.
*** GEORGE ALEXANDER RAPHAEL ROBERTSON XXN MR DONAGHEY
PN492
Well, can you help me try and make sense of the evidence then? If you look at it as groups of complaints, which would include one individual or a group of perhaps 20 on one property, et cetera, if you deal with it that way, how many have you received and what action did you take?‑‑‑I see, yes. In that sense then the numbers would be higher in terms of each individual instance of where there may be an issue in relation to a group of workers experiencing a problem with piece rates, and so what we or what I would ordinarily do is meet with those groups of workers to work out what exactly the issues are in relation to piece rates, whether - and how many of the workers in a group would be - you know, what kind of hours they're working, how much they were receiving, if we can calculate on an hourly basis, depending on how much produce they were picking, we'd then talk to those workers about what course of action they'd like to seek. Ordinarily what we usually do is encourage those workers with some support an advice from the union to speak directly to the employers themselves, and if that wasn't able to resolve the issue, then a union official, either myself or someone in my team would contact the labour hire agency or grower, if that's what the worker wanted, and to try to resolve the situation.
PN493
Thank you. Is there - perhaps go to you, first, Mr Donaghey, anything arising from any of that?
PN494
MR DONAGHEY: No. No, your Honour, there isn't.
PN495
JUSTICE ROSS: Anything from you, Ms Burke?
PN496
MS BURKE: No. Thank you, your Honour.
JUSTICE ROSS: Thanks for your evidence, Mr Robertson. You're excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [11.27 AM]
PN498
JUSTICE ROSS: We'll go to Mr Wakefield, thank you.
PN499
THE ASSOCIATE: I don't believe Mr Wakefield is currently sitting in the lobby. We do, however, have a Rodney, who I assume is probably Rodney McDonald. I can call Mr Wakefield directly or we can proceed to Rodney McDonald if you'd prefer.
PN500
JUSTICE ROSS: Proceed to Rodney McDonald, if he's available.
PN501
MS BURKE: Thank you.
PN502
THE ASSOCIATE: Can you please state your full name for the Commission?
*** GEORGE ALEXANDER RAPHAEL ROBERTSON XXN MR DONAGHEY
MR McDONALD: My name is Rodney Noel McDonald.
<RODNEY NOEL MCDONALD, AFFIRMED [11.28 AM]
EXAMINATION-IN-CHIEF BY MS BURKE [11.28 AM]
PN504
JUSTICE ROSS: Yes, Ms Burke.
PN505
MS BURKE: Thank you.
PN506
Mr McDonald, could you please repeat your full name?‑‑‑Yes, my name is Rodney Noel McDonald.
PN507
And your address?‑‑‑My address is (address supplied).
PN508
And your occupation, please?‑‑‑I'm a farm hand.
PN509
Mr McDonald, have you prepared two statements for use in this proceeding?‑‑‑I have.
PN510
Do you have the first one with you there?‑‑‑I do.
PN511
And is that statement 52 paragraphs with one annexure?‑‑‑That's correct.
PN512
And are the contents of that statement true and correct?‑‑‑That is, yes.
PN513
Thank you. I tender that statement.
JUSTICE ROSS: I'll mark that statement as exhibit UWU2.
EXHIBIT #UWU2 WITNESS STATEMENT OF RODNEY NOEL McDONALD
PN515
MS BURKE: Thank you.
*** RODNEY NOEL MCDONALD XN MS BURKE
PN516
And, Mr McDonald, your second statement, do you have a copy of that there?‑‑‑I do.
PN517
Is that statement 18 paragraphs?‑‑‑It is.
PN518
Are the contents of that statement true and correct?‑‑‑Yes.
PN519
Thank you. I tender that statement.
JUSTICE ROSS: I'll mark that exhibit UWU3.
EXHIBIT #UWU3 WITNESS STATEMENT OF RODNEY NOEL McDONALD
PN521
MS BURKE: Thank you, Mr McDonald, just wait there.
JUSTICE ROSS: Mr Donaghey?
CROSS-EXAMINATION BY MR DONAGHEY [11.30 AM]
PN523
MR DONAGHEY: Thank you, your Honour.
PN524
Mr McDonald, do you have your first statement, the longer of the two statements in front of you?‑‑‑I do.
PN525
Are you able to turn to paragraph 43 of that witness statement? I'm afraid mine doesn't have page numbers, sorry, I can't direct you to a page. It's about half-way down the page?‑‑‑Forty-three, yes.
PN526
Forty-three it is. There you give evidence about the worst day pruning for piece rate where you say in effect that you worked out that you worked for seven hours at about $10.80 an hour. Do you see that evidence in the paragraph?‑‑‑Yes, I do.
PN527
Have you ever made a complaint to the union or to any other party about that particular piece rate?‑‑‑I haven't, and I didn't believe that I would be successful even if I did, because there is no hours logged on my payslip. There is no proof of how many hours I did. It's my word against theirs even if I did.
PN528
But you're able to say reasonably exactly, aren't you, in that paragraph, how long you were working that day, it's seven hours. That's your evidence?‑‑‑Correct.
*** RODNEY NOEL MCDONALD XXN MR DONAGHEY
PN529
You give other examples of piece rates elsewhere in your statement. Have you made a complaint about any other of the piece rates that you complain of, for example to the union or to any other third party?‑‑‑No, I've just accepted it.
PN530
I understand. So can I take it from that that you haven't also made a further complaint or a higher level complaint, for example, to the Fair Work Ombudsman?‑‑‑No, I haven't.
PN531
Nothing further, your Honour.
PN532
JUSTICE ROSS: Thank you. The examination, Ms Burke?
PN533
MS BURKE: No, no re-examination. May Mr McDonald be excused?
PN534
JUSTICE ROSS: Certainly.
Thank you for your evidence, Mr McDonald. You can be excused?‑‑‑Thank you.
<THE WITNESS WITHDREW [11.32 AM]
PN536
MS BURKE: Mr Wakefield is at the union offices, so he may be appearing as George McDonald for the - - -
PN537
JUSTICE ROSS: Or George Robinson, is that ‑ ‑ ‑
PN538
MS BURKE: Also George Robinson is an available option.
PN539
JUSTICE ROSS: We will admit Mr Robinson and will see if that's Mr Wakefield.
PN540
MS BURKE: Thank you.
PN541
THE ASSOCIATE: Thank you, Mr Wakefield. Can you please state your full name for the Commission.
MR WAKEFIELD: Lachlan Sinclair Wakefield.
*** RODNEY NOEL MCDONALD XXN MR DONAGHEY
<LACHLAN SINCLAIR WAKEFIELD, AFFIRMED [11.33 AM]
EXAMINATION-IN-CHIEF BY MS BURKE [11.33 AM]
PN543
MS BURKE: Mr Wakefield, could you please repeat your full name?‑‑‑Lachlan Sinclair Wakefield.
PN544
And your address?‑‑‑(Address supplied).
PN545
And your occupation, please?‑‑‑I'm an apiarist.
PN546
Have you prepared a statement for use in this proceeding?‑‑‑Yes.
PN547
Do you have a copy of it in front of you?‑‑‑I do, yes.
PN548
Is that statement 25 paragraphs?‑‑‑Yes.
PN549
And are the contents of that statement true and correct?‑‑‑They are, yes.
PN550
Thank you. I tender the statement.
JUSTICE ROSS: I will mark Mr Wakefield's statement as exhibit UWU4.
EXHIBIT #UWU4 STATEMENT OF LACHLAN WAKEFIELD
CROSS-EXAMINATION BY MR DONAGHEY [11.34 AM]
PN552
MR DONAGHEY: Mr Wakefield, in the statement that's in front of you can you turn to paragraph 23?‑‑‑Yes.
PN553
In that paragraph you give evidence about what blueberry farm piece workers were making?‑‑‑Mm-hm.
PN554
Was that a figure that you were also - were you making around the same money at the same time as you give that - you had those discussions with the blueberry pickers?‑‑‑No, I was making far more than that.
*** LACHLAN SINCLAIR WAKEFIELD XN MS BURKE
*** LACHLAN SINCLAIR WAKEFIELD XXN MR DONAGHEY
PN555
I understand. Are you able to say how much approximately you were making?‑‑‑It was about - I think after tax it was about 190 a day.
PN556
For how many hours in the day, Mr Wakefield?‑‑‑That was about nine hours a day, I think.
PN557
That was your reasoning, wasn't it, to refuse to engage in the blueberry picking, because you were concerned you would be paid less?‑‑‑Well, that, and I had already got the job at the avocado farm, so why would I head to the blueberry farm while I had employment?
PN558
I understand. Did you ever have a conversation with any of the blueberry pickers about complaining about their piece rates?‑‑‑As in them complaining, or them complaining to management?
PN559
Them complaining to management, or them complaining to another higher authority?‑‑‑Yes.
PN560
What was the effect of that discussion? What did you say and what did they say, if you can recall?‑‑‑Well, most of them would just state that because they were backpackers, they were just ignored.
PN561
Please say if you know this, you may not know this, Mr Wakefield, are you aware of any of them who did in fact complain to either management or a higher authority?‑‑‑They would complain to their group supervisors.
PN562
Yes?‑‑‑So the - they worked in teams of - I don't know how many - but they would complaint them and try and get an answer on when the piece rate was going to improve, and it was always, "It's about two weeks away before you will be able to make money like last year."
PN563
Please say if you know, did any of those people you spoke with on the blueberry farm make a complaint to the Fair Work Ombudsman?‑‑‑I don't know. I don't believe so.
PN564
Don't believe so. Thank you.
PN565
Nothing further for this witness, your Honour.
*** LACHLAN SINCLAIR WAKEFIELD XXN MR DONAGHEY
PN566
JUSTICE ROSS: Anything in re-examination, Ms Burke?
PN567
MS BURKE: No, thank you.
JUSTICE ROSS: Thank you for your evidence, Mr Wakefield. You're excused.
<THE WITNESS WITHDREW [11.37 AM]
PN569
JUSTICE ROSS: Look, I think - can we go back to Mr Costa insofar as I'm assuming what will happen, Mr Gibian, is the idea that you will file a - it will be a short revised statement without the attachments, and you will also seek to tender the report separately, and you will attend that. And on that basis there's no objection to that sort of amended statement just referring to the process and his involvement without the attachments. We will mark that, and then he won't be required for cross examination. Is that where we're up to?
PN570
MR GIBIAN: My intention, your Honour, was, given the discussion was simply to tender the reports and they will stand for themselves, I'm content to do that now if that's a convenient course.
PN571
JUSTICE ROSS: No, that's fine. And then - so we won't actually have a statement from Mr Costa, we will just have the reports.
PN572
MR GIBIAN: Yes. I'm content for that course if it's convenient, unless anyone else has difficulty.
PN573
JUSTICE ROSS: Do you have any problem with that, Mr Donaghey? Are you content with that?
PN574
MR DONAGHEY: I do not. I'm content with that, your Honour.
PN575
JUSTICE ROSS: All right. Perhaps if we deal with the - there's a report, "Wage Debt: The Shadow of the Market. Part 2, the Horticulture Industry." Is that one of the ones you want to tender?
PN576
MR GIBIAN: Yes, that's the first one. It starts at page 217 of the court book.
*** LACHLAN SINCLAIR WAKEFIELD XXN MR DONAGHEY
JUSTICE ROSS: I will mark that exhibit AWU13.
EXHIBIT #AWU13 REPORT TITLED: WAGE DEBT: THE SHADOW OF THE MARKET. PART 2, THE HORTICULTURE INDUSTRY
PN578
MR GIBIAN: And the second affidavit (indistinct) was the further report from June entitled, "Working for $9 a day: wage theft and human rights abuses on Australian farms", commencing at page 291.
PN579
JUSTICE ROSS: Yes, I don't - just bear with me. The next one I've got is, "No worker left behind."
PN580
MR GIBIAN: Sorry.
PN581
JUSTICE ROSS: That's TC3 in his statement.
PN582
MR GIBIAN: Okay, sorry. I apologise. Navigating the - - -
PN583
JUSTICE ROSS: Yes.
PN584
MR GIBIAN: Yes. Thank you, your Honour, commencing at page 240 of court book.
JUSTICE ROSS: I will mark that exhibit AWU14.
EXHIBIT #AWU14 REPORT AT PAGE 240 OF THE COURT BOOK
PN586
And then there's then "Working for $9 a Day" that you were referring to. Is that right?
PN587
MR GIBIAN: Yes.
JUSTICE ROSS: I will mark that as exhibit AWU15.
EXHIBIT #AWU15 REPORT TITLED: WORKING FOR $9 A DAY
PN589
MR GIBIAN: May it please.
PN590
JUSTICE ROSS: I think the last witness for today is Dr Howe, who is scheduled for 2 pm, so - - -
PN591
MS BURKE: Yes, your Honour, just before you say what you're about to say, perhaps I could tender from the bar table Mr Karhu's statement, who is not required to examination, who is the final lay witness, aside from witness 1, of the United Workers Union.
PN592
JUSTICE ROSS: Certainly. How do you pronounce - - -
PN593
MS BURKE: And that's ‑ ‑ ‑
PN594
JUSTICE ROSS: Sorry, how do you pronounce his surname?
PN595
MS BURKE: Well, I'm pronouncing it Karhu, but - - -
PN596
JUSTICE ROSS: Could you spell it?
MS BURKE: K-a-r-h-u. And that is at electronic court book 2659.
EXHIBIT #UWU5 STATEMENT OF NIKO KARHU
PN598
Thank you.
PN599
JUSTICE ROSS: We'll endeavour to have an answer to you about (indistinct) and the Malay interpreter this afternoon as well. We're just having a bit of trouble getting an answer from them at the moment.
PN600
MS BURKE: I understand. I might also have a discussion with Mr Donaghey in the break if there's some additional instructions I get can get that will alleviate the need for any cross-examination.
PN601
JUSTICE ROSS: Yes. I think it's – the nature of the questions is probably going to be reasonably apparent. So if you can sort it out between yourselves, without the need to call the witness, that would be appreciated. All right, well, we'll adjourn until 2 pm, at which time we'll have Dr Howe give her evidence. Thank you.
PN602
MS BURKE: Thank you.
LUNCHEON ADJOURNMENT [11.42 AM]
RESUMED [2.01 PM]
PN603
JUSTICE ROSS: Can we just deal with witness 1. I understand, Ms Burke, you want to read something onto the transcript, and on that basis it's agreed between yourself and the NFF that witness 1 won't be required. Is that correct? Ms Burke? Hello?
PN604
MR GIBIAN: That is the case, your Honour, if that assists. But it appears that Ms Burke can't hear your Honour.
PN605
JUSTICE ROSS: Okay. I think someone is ringing her at the moment.
PN606
Can you hear me, Ms Burke? All right.
PN607
Well, can someone instructing Ms Burke give her a phone on her mobile and see if we can find out what ‑ ‑ ‑
PN608
MR GIBIAN: I think we're endeavouring to contact her, your Honour. I'm not sure whether ‑ ‑ ‑
PN609
JUSTICE ROSS: I think everybody is.
PN610
Can you hear me now, Ms Burke? No? all right.
PN611
Mr Dalton, while we're waiting, I understand you have some material that you're going to take the witness to. Have you worked out how you're going to do that?
PN612
MR DALTON: Not yet, your Honour. I was going to raise that with the witness at the outset.
PN613
JUSTICE ROSS: No, that's fine.
PN614
MR DALTON: But I'm happy for that to be done now.
PN615
JUSTICE ROSS: No, we will wait until Ms Burke can hear us.
PN616
MR DALTON: Yes, of course.
PN617
JUSTICE ROSS: Perhaps if she - yes, I will ask my associate to suggest that she log out and back in. Here we are.
PN618
MS BURKE: Thank you everyone. I'm sorry about that, it has been repaired by someone else.
PN619
JUSTICE ROSS: No, no problem. Ms Burke, I understand there's an agreed basis on which we will proceed with witness 1.
PN620
MS BURKE: Yes.
PN621
JUSTICE ROSS: You've obtained instructions: you want to read something out, and on that basis the NFF does not require witness 1 for cross‑examination. So do you want to attend to that?
PN622
MS BURKE: Yes. Thank you. The instructions are this:
PN623
In addition to the complaint set out in paragraph 10 of the statement, in 2020 witness 1 made two complaints to the UWU regarding piece rates. Witness 1 does not know what action, if any, the union took following those complaints. Witness 1 did not every make a complaint to the Fair Work Ombudsman or any other body regarding piece rates.
PN624
JUSTICE ROSS: Okay. And you want to tender witness 1's statement now?
PN625
MS BURKE: Yes, on the basis of those instructions forming part of witness 1's evidence, and that that witness is not required for cross‑examination, I tender the statement.
JUSTICE ROSS: All right. Thank you. I will mark the statement of witness 1 with the material that you've just read out - I will attach the correspondence we've received in relation to it - as exhibit UWU6.
EXHIBIT #UWU6 STATEMENT OF WITNESS 1 INCLUDING CLARIFYING STATEMENT
PN627
MS BURKE: Thank you.
PN628
JUSTICE ROSS: You're content with that, Mr Donaghey, proceeding on that basis?
PN629
MR DONAGHEY: Yes, I am.
PN630
JUSTICE ROSS: All right. Then if we can go to the evidence of Dr Howe, and we will call Dr Howe.
PN631
THE ASSOCIATE: Can you please state your full name for the Commission, Ms Howe.
MS HOWE: Joanna Fatima Viana Howe.
<JOANNA FATIMA VIANA HOWE, AFFIRMED [2.05 PM]
EXAMINATION-IN-CHIEF BY MS BURKE [2.06 PM]
PN633
MS BURKE: Dr Howe, could you please repeat your full name?‑‑‑Joanna Fatima Viana Howe.
PN634
And your address?‑‑‑University of Adelaide, North Terrace, South Australia.
PN635
And your occupation, please?‑‑‑I'm an associate professor in law at the University of Adelaide Law School.
PN636
Thank you. Dr Howe, have you prepared two statements for use in this proceeding?‑‑‑Yes.
PN637
Do you have the first of those statements before you at the moment?‑‑‑I do.
PN638
Is that statement 25 paragraphs with three attachments?‑‑‑Yes.
PN639
For the transcript, that is at electronic Court Book 2449.
PN640
Dr Howe, are the contents of this statement true and correct?‑‑‑Yes.
PN641
Thank you. I tender that statement.
*** JOANNA FATIMA VIANA HOWE XN MS BURKE
JUSTICE ROSS: I will mark that statement exhibit UWU7.
EXHIBIT #UWU7 STATEMENT OF JOANNA HOWE PLUS ATTACHMENTS
PN643
MS BURKE: Dr Howe, have you also prepared a statement titled Reply Statement of Dr Joanna Howe?‑‑‑I have.
PN644
Is that statement 43 paragraphs with three annexures?‑‑‑Yes.
PN645
Your Honour, with leave, I would like to lead one correction to that statement. There's a typographical error.
PN646
JUSTICE ROSS: Yes.
PN647
MS BURKE: Dr Howe, at page 21 of that second statement?‑‑‑Yes.
PN648
About halfway down the page in the box headed Grower Interview Mildura?‑‑‑Yes.
PN649
The last sentence of the first paragraph, in bold it reads:
PN650
I know from here if I wasn't paying proper piece rates I would be losing a lot of money.
PN651
Should the word 'wasn't' be 'was'?‑‑‑It should be 'was.'
PN652
Thank you. And with that correction, are the contents of that statement true and correct?‑‑‑Yes .
Thank you. I tender the statement.
EXHIBIT #UWU8 SECOND STATEMENT OF JOANNA HOWE
PN654
JUSTICE ROSS: Now, Dr Howe is required for cross-examination by your client, Mr Dalton, and yours, Mr Donaghey. I assume you've had a discussion, so there's no overlap in the questions. Have you discussed who goes first?
*** JOANNA FATIMA VIANA HOWE XN MS BURKE
PN655
MR DONAGHEY: We've had a comparison of our positions, I think it's probably better to say, your Honour. And I think the unified position, subject to Mr Dalton saying otherwise, is that his examination is going to be far longer than mine, so he should go first.
JUSTICE ROSS: All right. Mr Dalton.
CROSS-EXAMINATION BY MR DALTON [2.09 PM]
PN657
MR DALTON: Thank you, Your Honour. Dr Howe, can I ask you what form you've got your statements in? Have you got hard copy, or are you working with the electronic?‑‑‑No, I have a hard copy.
PN658
All right. Now, we've also sent to the UWU and the Commission a PDF which contains bookmarks of four documents. Has that been provided to you?‑‑‑Counsel has provided some documents to me. I'm not sure if it's the same one that you're referring to, though. So what's in that PDF?
PN659
Are you working with any of the documents in electronic form?‑‑‑No, I've got them in hard copy.
PN660
And the AWU's materials: there are some of those materials that I'll want to take you to in cross-examination. Have you got material in hard copy form?‑‑‑I'm not certain that I do. I have Dr Underhill's statement and her response. I have the AFPA's statement as well, and some documents by the Commission. So I'm not sure which part of the AWU – yes.
PN661
All right. We'll have to see how we go. Can I ask you, though, if you haven't already done so, ask the UWU to send – or counsel to send you an email that attaches the PDF that we sent through. Will you be able to access that and open that document when I need to ask you some questions about it?‑‑‑I will.
PN662
JUSTICE ROSS: Sorry, did you have something, Ms Burke?
PN663
MS BURKE: Yes. Sorry to interrupt, Mr Dalton. I think, Dr Howe, an attachment – that document was sent to you by the UWU, and I think 157, in an email. So hopefully you will have that attachment in your email?‑‑‑All right. I'll just go to that now and see if I can find it. All right, yes. (Indistinct) that document.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN664
MR DALTON: Thanks, Dr Howe. If we could start with your first statement?‑‑‑M'mm.
PN665
Can I take you to paragraph 10 of that statement. And for those who are working off the electronic court book, that's page 2451. Dr Howe, at paragraph 10 there, you identify four categories of temporary visa holders employed in the harvest workforce. Do you see that?‑‑‑Yes.
PN666
And I just want to deal with those four categories and ask you seme questions, just to clarify exactly what we're talking about. So, a), working holiday makers, which we can refer to as WHMs, there's two subclass visas that apply to the WHMs; is that correct?‑‑‑That is correct.
PN667
And am I right in saying that the two subclasses are 417 and 462?‑‑‑Yes.
PN668
417 and 462: they have the same requirement if you want to extend your stay in Australia into a second year, namely that you work 88 days in specified industries and areas; correct?‑‑‑Yes.
PN669
And a prominent area is the agriculture industry?‑‑‑Yes.
PN670
And the section 417 subclass covers a lot of the European countries and the traditional backpackers?‑‑‑Yes.
PN671
It's got a few Asian countries, but certainly, the traditional sense of backpackers has been the Europeans, would be drawing on that section 417 subclass; correct?‑‑‑Yes.
PN672
And 462 covers a number of other countries from various parts of the world who, in effect, are just more recent participants in this visa scheme, that work bilaterally; is that correct?‑‑‑Yes.
PN673
All right. b) and c), can I group them together and refer to them as, in effect, the Pacific Islanders under those two schemes, namely the seasonal worker program and the Pacific labour scheme?‑‑‑Yes.
PN674
Now, the seasonal worker program: that's specifically calibrated to seasonal work in the horticulture industry, isn't it?‑‑‑Yes.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN675
And so, everyone who is participating in that scheme is working in the labour force that is the subject of this proceeding?‑‑‑Yes.
PN676
And the Pacific labour scheme is a broader scheme for participation of Pacific Islanders in the labour force in Australia; is that correct?‑‑‑Yes.
PN677
So that covers a range of different industries, but it includes, of course, agriculture and horticulture?‑‑‑That is correct.
PN678
And then we've got d), international students. So they would tend to be overseas citizens who are here studying, who may work in the horticulture industry typically during holiday periods between their commitments?‑‑‑Correct.
PN679
Now, you make reference in your witness statement to what you describe as the undocumented migrant worker?‑‑‑Yes.
PN680
So, just to be strictly accurate here, we're talking about overseas citizens who have overstayed a visa, be that a student visa or a WHM visa?‑‑‑That is correct, but a second category or subset of undocumented migrants would be visa holders who are working in breach of a condition in their visa. So it may be international students in breach of the 40 hours requirement, or a tourist visa holder in breach of the condition that they're not allowed to work.
PN681
Yes. So, no doubt they've got documentation. The point you're making is that they don't have visa documentation supporting a current right to work in Australia?‑‑‑That is correct. And this group is referred to by various people as illegal works or unlawful non-citizens, but within the scholarly literature, 'undocumented migrant' is the phrase that we use.
PN682
Visa overstayers and workers who don't have a current right to work under their visa conditions?‑‑‑Or work in breach of the right to work condition in their visa.
PN683
Yes, thank you?‑‑‑I think we're on the same page.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN684
Yes. Now, at paragraphs 13 to 16, you make some observations about the undocumented migrant worker cohort in the horticulture industry. Am I correct in summarising that into three points; first, it's impossible to track their numbers accurately; second, their prevalence varies significantly by region; and thirdly, there's evidence indicating, at least in the Sunraysia region, that they were up to around a third of the total workforce in that region. Is that a fair summary of the observations you make of the undocumented migrant worker cohort in this horticultural industry?‑‑‑So, just a slight clarification.
PN685
I think in relation to the first point, I would say that it is extremely difficult to ascertain the extent of undocumented migrants working on farms, but it's not impossible. Secondly, that they do vary regionally, as our research showed. Thirdly, Sunraysia is one example where it has been found through both the VFF survey but also through our case studies in that region that there is a high proportion of undocumented migrants in the harvest period. But there were other regions also in our research where we found that to be true, and other regions in our research where we found that also to be not true.
PN686
But in terms of your research you've not been providing an indicative proportion. What you're doing is identifying - you think that could be a substantial number of them, subject to the variances, et cetera, and the inherent difficulties in ascertaining their numbers. In terms of the proportion the only reference you make in your witness statement is to another study that indicated in respect of Sunraysia it could be a third; correct?‑‑‑That is true, Mr Dalton, but I would point out that in the Towards the Durable Future report there is a standalone chapter on undocumented migrants, and that's because we did get significant data from the qualitative part of the study which was quite exceptional in terms of the research that's been done to date, and we found that some growers in certain regions were reporting considerably high levels of use of undocumented migrants, so particularly in Wanneroo, Griffith, Mildura, Shepparton, Robinvale, in Orange at the peak of the cherry season, so the grower focus groups in those locations which I led, growers themselves were reporting 80 to 90 per cent in some locations at the peak of a harvest undocumented migrants. So, we did think that warranted a standalone chapter in the report, because it was quite a significant finding. But I haven't got that in my witness statement because this is just a very brief section of my research.
PN687
Just to finish off on this section, but you don't quantify, you're not able to quantify, even in that chapter, the extent of the undocumented migrants who are participating in the workforces in those areas?‑‑‑No, that's correct. It's not a quantitative assessment.
PN688
No. All right, can I go back to the categories of valid visa holders employed in the industry? I'll take you to paragraph 12. Here you give a breakdown. So you attempt to give some numbers about the size of the sub-groups?‑‑‑Okay.
PN689
And you say that it's in the year before the pandemic, so just so we're clear, presumably you're referring to 2019?‑‑‑Yes, I think so. I'd have to look back at what forms this paragraph, but I think so.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN690
Now, the reference to WHMs, picking up on your answer before, we're dealing with the cohort of temporary migrant workers who are clocking up their 88 days to earn their second year visa extension; correct?‑‑‑Yes.
PN691
And then you go through and exercise where you deduced that there's about 36,000 WHMs who earned their visa extension through employment on farms. Do you see that?‑‑‑Yes.
PN692
So that's in effect a known quantity that you were able to deduce from the - I think what you've applied as an 80 per cent participation rate of those WHMs working in employment in farms. So you're taking that figure back from the 43,000-odd to the 36,000?‑‑‑I am, and my understanding is that my research team did that based on Department of Home Affairs data on that cohort.
PN693
Most, but you'd accept not all, of that 36,000 would involve employment in horticulture. Horticulture being a subset of agriculture and farm work; correct?‑‑‑That is correct.
PN694
And you're not able to quantify what proportion horticulture makes of this kind of work across farms?‑‑‑No, in the qualitative study obviously we gained data from growers about their labour use, and same - that was also true in the vegetable growers survey, but, no, no quantitative assessment.
PN695
No. All right, paragraph 10 of your first statement, in the first sentence there you say that pre-COVID, so, again, we're looking at 2019, are we?‑‑‑Yes.
PN696
You say about three-quarters of the workforce comprised of temporary migrants?‑‑‑Yes.
PN697
The workforce to which you refer there, that's the approximate 130,000 figure you cite in paragraph 8 of your statement?‑‑‑Yes.
PN698
That's that approximate 130,000 figure that you cite from the Australian Bureau of Agriculture Resources for the 2018/2019 year; correct?‑‑‑Correct.
PN699
And that's the figure that you've worked off, I think that you cite, at page 4 of your durable future report; correct?‑‑‑That is correct.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN700
And as you explain at paragraph 10 of your first sentence that approximate figure that ABARES has provided for the 2018/2019 year does not include undocumented workers?‑‑‑That is my understanding, yes.
PN701
And it's also your understanding that it doesn't include labour hire workers?‑‑‑That is my understanding, but if you look at the ABARES documentation and the ABS reporting as well, they have a number of footnotes in regards to those figures of how they say they themselves encounter methodological difficulties in coming to that figure. So, that's why I've got the word "approximately" in there taken from there. It's a very deliberate use of that word.
PN702
Of course. And I used the word "approximately" advisably because of recognising what you've said in your statement about those difficulties. But, again, working with approximates, the 130,000 figure is likely to be a substantial understatement of the approximate total of the workers in the industry, isn't it, given that, based on your understanding, that figure doesn't include undocumented workers or labour hire workers; correct?‑‑‑So, that is what they say in their footnotes, but they also acknowledge that there are difficulties in ascertaining whether those groups are counted in that 130,000. So, it's a little bit more complicated I think than the summary you've just given.
PN703
But the way that you've presented that at paragraph 10 and 8, we're to take it, aren't we, that that approximate 130,000 figure it could be higher, because you're referring to two cohorts of workers which may not be included, or at least not fully included in that estimate, and those workers, on your own evidence, would be a significant cohort or significant cohorts in that workforce; correct?‑‑‑So, I think what I'd say, Mr Dalton, is that in both of those statements I do have footnotes to the original sources, and I would encourage readers to go to those sources to look at the footnotes that ABARES has in reference to that data collection, and it really does have a number of aspects to it. And that's also the same with the Azaris report, that they themselves acknowledge that the inherent methodological challenges with data collection in terms of workforce size and proportions and numbers in this area. So, the other point I would make is that my primary area of expertise is not as a labour market economist, but it is as a migration and labour law researcher, having done extensive qualitative research in horticulture. So, I'm happy to answer any further questions you may have, but I'm not sure how helpful I will be, because I didn't compile those statistics, and the footnotes that they have to them, it may be best that you acquaint yourself with those perhaps.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN704
Yes, but both in this witness statement and in your durable future report you have set out that approximate 130,000 figure and you've set out your understanding that that figure does not include, or at least does not fully include, undocumented workers for obvious reasons, and labour hire. That's the interpretation of that data that you've presented in your witness statement and in your Durable Future report. Correct?‑‑‑That is my understanding of that figure. And I note that ‑ ‑ ‑
PN705
Yes, that's the question I've asked you?‑‑‑ ‑ ‑ ‑ the Fair Work Ombudsman also used that figure and make those observations. But I would say that any sort of detail on that figure, you need to look at those sources.
PN706
Yes, all right ‑ ‑ ‑ ?‑‑‑I think the broad point that I'm making in this statement and in the Towards a Durable Future research is that temporary migrants form a substantial proportion of the workforce in this industry.
PN707
Yes, all right ‑ ‑ ‑ ?‑‑‑So that's the takeaway.
PN708
Okay. Yes, all right. Can I just ask some more questions in relation to the numbers of the WHMs in the horticulture industry and the trends around that. You would accept, wouldn't you, that since early - since after January 2020 with the onset of the pandemic the numbers of WHMs, both first and second year extensions, has dropped sharply?‑‑‑Yes.
PN709
Are you also aware of the trends the year before? Are you familiar with the trends? Because I want to put to you that in face even before COVID there was a downward trend in the number of WHM second year visa extension workers. Does that fit with your recollection of the data, or do you want me to take you to it?‑‑‑I think my understanding is that there are - having looked at this over a long period of time, there are sort of peaks and troughs in that data, and various things will affect the supply of working holiday-makers over the ‑ ‑ ‑
PN710
Sorry, Dr Howe, just listen to my question. I'm not asking you for the reasons, I'm just asking you whether you're aware of the downward trend?‑‑‑I wouldn't call it - I think I'm - the reason I was giving you a longer response, Mr Dalton, is I wouldn't call it a downward trend. I would say that - and there are two visas that we're talking about here. So in the second visa, which is largely the newer countries and more the Asian countries in particular, the trend in that visa, my understanding of second year renewals has been greater; and my understanding is that in the other visa category, which you refer to as the largely European countries, that there has been on occasion some years in which the numbers in working holiday-maker renewals have fallen in the last 10 years. But as I was explaining, I wouldn't call this a downward trend, I would call this as a response to different economic and other impacts. So for example the backpacker tax had an effect on visa renewals at the time that that was being debated; the economic crisis in Ireland had an impact at the time for applications by Irish backpackers for a second year. So I think that's why I needed to give the full response.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN711
I'm not sure that you've got access to this material. It's at Court Book 947, it's a 2020 report on the WHM visa program from the Department of Home Affairs. Have you got access to that? It's a document that was attached to the AWU's materials?‑‑‑Is it in the PDF that was just sent ‑ ‑ ‑
PN712
No. No, because it's in the Court Book?‑‑‑I'm sorry, I don't have access to that, but you can ‑ ‑ ‑
PN713
Yes. I will put to you the substance of it?‑‑‑Okay. Thank you.
PN714
At page 947 there's a graph that shows for subclass 417 second year extension visa-holders, it gives you month by month figures?‑‑‑Mm-hm.
PN715
And it goes back about five years. And if you look from April 2019 through to the end of January 2020, so stopping just before COVID, the monthly numbers, compared to the year before, are dropping off by around 400 to 600, before they then drop away steeply because of COVID. So that's for the 417s, which is the larger program?‑‑‑Mm-hm.
PN716
In relation to the 462 second year extension visa-holders; smaller program, smaller numbers; and you're right to say that they are increasing. I read it to be increasing marginally between around 100 to 160 per month. And so the net effect is that there has been a downward trend, at least for that 12-month period before COVID hit. Can I ask you whether that fits with your understanding, that is as to the trend. I'm not asking you as to the reasons for it?‑‑‑So I think - as I said, I'm not an economist, but for the 12 months prior to the pandemic I think you could say that the 462 numbers have been increasing and the 417 numbers have been decreasing to some extent, and I wouldn't say to a large extent, based on what you've said.
PN717
Very well. Thank you. Now can I deal with Pacific Islanders. Under the seasonal work program you give the figure of about 12,200?‑‑‑Correct.
PN718
That's the for the same year, twenty - dealing with like for like, presumably, when you're presenting that material, so 2019?‑‑‑I think the most recent year prior to the pandemic, yes.
PN719
And you don't provide any figures for the Pacific waiver scheme, but you would recognise that's another cohort where there would be a substantial number of Pacific Islanders engaged in horticultural work under that scheme?‑‑‑Yes.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN720
At paragraph 25 of your first statement you make some observations drawing on your work over the years about what you describe as the labour market segmentation in the horticulture industry. Yes?‑‑‑Yes.
PN721
Broadly there are two propositions there. There are some sub-groups within the harvest worker labour market who are more precarious than others; and in particular some groups of migrant workers are more vulnerable than other groups of migrant workers. Correct? They're the two broad propositions that you're stating in paragraph 25?‑‑‑Yes, that's correct.
PN722
The most vulnerable are the undocumented workers. Correct?‑‑‑I have to give you a bit of a longer response, Mr Dalton. I would say typically that is correct, that undocumented migrants are the most vulnerable, but that's not to say that you wouldn't be able to find - and indeed in my research we interviewed directly working holiday-makers or Pacific Islander who ‑ ‑ ‑
PN723
Sorry, I'm going to have to cut you off here, Dr Howe. I'm sorry, just you need to be directly responsive to my question?‑‑‑But I think ‑ ‑ ‑
PN724
My question was that the undocumented workers are the most vulnerable in the horticulture industry. And perhaps to assist you, can I remind you that that was in fact in terms a finding that you made in your durable future report, that is finding 3. I will read it verbatim:
PN725
Finding 3: undocumented workers are the most vulnerable in the horticulture industry.
PN726
That's correct, isn't it?‑‑‑Okay. So I'm comfortable with that finding, but I also just ‑ ‑ ‑
PN727
JUSTICE ROSS: No, no. Dr Howe, if you just confine yourself to answering the question directly. Ms Burke will ask you questions in re‑examination, and if she wants to explore any of these issues in more detail. But it will go much quicker if you just answer the question that's put?‑‑‑Sure, all right. Okay. In short, then, yes.
PN728
MR DALTON: Thank you. And also you found that there's segmentation as between the visa classes. You describe it as:
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN729
Competition between the visa classes contributes towards noncompliance with labour standards because of the different regulatory architecture of the different visas.
PN730
Correct? That's an observation that you've made in your studies?‑‑‑Yes.
PN731
And as to that, WHMs are the most vulnerable?‑‑‑Sorry, how did you reach that conclusion?
PN732
So when you're talking about - so putting undocumented workers to one side because they're not validly working under a visa. Dealing with the visa classes, you observe that there's in fact segmentation and competition as between those visa classes. Yes?‑‑‑I do, but - we do, but in Towards a Durable Future we acknowledge that there's different vulnerabilities for the different cohorts. So for Pacific (indistinct) there are still vulnerabilities.
PN733
Well - - - ?‑‑‑Because – it's important, Mr Dalton, because with working holiday makers, if they're from a European background, we found they were much more willing to report non-compliance, and they were much more aware of their rights. So there are different leverages here. Both of these categories have aspects of their regulatory design that create vulnerabilities. So I don't think I can say that. I think that the working holiday maker program is certainly associated with a lot of vulnerability, as is the Pacific – and the scheme, the Pacific scheme, is better regulated, and employers have to be pre-approved. So that makes it a better program.
PN734
Yes. You've observed that in terms in your earlier work, and also in the Durable Future report, haven't you? That is, that WHMs are more vulnerable to exploitative conditions, including pay outcomes, than the Pacific Islanders, who are working under the SWP and the Pacific Islander scheme. And you say that that is largely due to the different administrative approval requirements that apply to those different visa schemes; correct?‑‑‑Correct.
PN735
And also, WHMs: there's pressure on them to fulfil the 88-day requirement to get their second-year extension; correct?‑‑‑That's correct.
PN736
So there's a practical factor that makes them more mendicant to the farm operators or employers at the horticulture operations that they're clocking up their 88 days for. And you point out that – and I'm going to read here from your article, A tale of two visas, your 2018 article, at page 221 of that Australian Journal of Labour Law report:
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN737
While the SWP contains regulation seeking to protect seasonal workers, there is virtually no additional labour market protection for backpackers.
PN738
So that quote reflects that point, doesn't it, that – you're making the observation that the SWP scheme has better regulation and upfront approvals that provide better protection for labour standards for that cohort, as compared to the WHM workforce?‑‑‑Yes. I prefer that phrasing of it, how you just put it, yes.
PN739
Now, the better design of the SWP includes the need to be an approved employer to access that labour; correct?‑‑‑Yes.
PN740
And that approval is in advance of the relevant worker flying over here to provide their labour?‑‑‑Yes.
PN741
And that approval process, as part of the Department's administrative resources to that scheme, includes checking that the terms and conditions of the employment agreement are compliant with labour standards in Australia; correct?‑‑‑Yes.
PN742
It has actually got to set out the piece rate and the other key terms and conditions, so that the Department can satisfy itself that that sponsored worker will be paid properly; correct?‑‑‑Correct.
PN743
And your point, in much of the research that you've done on this particular issue, including Tale of two visas, and also your – the report, Durable Future report, is, in contrast, the WMs for the 417 and 462 visas don't have any of those protections?‑‑‑That is correct. I would also add, I think the induction program is a key (indistinct) aspect of the SWP.
PN744
Again, another feature in the SWP that's not existence for the 417/462, which make the WHMs?‑‑‑That is correct.
PN745
Yes. Now, in a number of your published works, I've noticed that you've advocated for tighter regulation of visas to improve compliance of labour laws?‑‑‑That's right, yes.
PN746
And in 2019 you co-authored a paper with Professor Reilly, titled Australia's Future Horticultural Workforce: Assessing the Agricultural Visa Concept; yes?‑‑‑That's correct.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN747
And in that paper, you and Professor Reilly proposed a particular model for an agricultural visa; yes?‑‑‑That is correct.
PN748
And that proposal would have the 417 and 462 visa subclasses and the 88-day requirement replaced by that agricultural visa?‑‑‑That is correct.
PN749
So, those 417 and 462 visas would be reconstituted and reverted to their original cultural exchange objective?‑‑‑That is correct.
PN750
Yes. And the agricultural visa would focus on meeting Australia's labour needs in industries where that labour is required, which would include horticulture?‑‑‑That is correct.
PN751
Now, as an expert in this field, I assume that you've kept abreast of recent significant developments in relation to visa schemes in this labour market?‑‑‑That is correct.
PN752
And so you would be aware of the recent initiatives of the Commonwealth Government to implement measures along the lines that you and Professor Reilly proposed in that 2019 paper?‑‑‑I want to give a longer answer, so please let me know if I'm being too long. So I'm aware that the Government has announced an agriculture visa for ASEAN nations, but they have not committed to abolishing the 417 and 462 incentives to work in horticulture for an 88-day period, other than for the United Kingdom, which demanded it as part of its FTA.
PN753
Yes. And so, United Kingdom, large country, big player in that bilateral scheme. Australia's decision to do away with that 88-day requirement, in principle, for the UK, may well see that 88-day requirement dropped in relation to other participating countries in the same scheme?‑‑‑I don't think that's my understanding. The Minister for Agriculture has said on the record that that is not their intention; that they intend to maintain the 88 days for the other partner countries. So it had been my hope they would abolish those, but they have not. They've clarified that that is not their intention.
PN754
All right, but the stated intention to introduce this new agricultural visa, as you said, it's focused on the 10 ASEAN countries. This would be a scheme that would be very much focused on achieving the labour needs that underpin the 88-day requirement in the first place?‑‑‑That is correct, but the Government has not indicated that they are going to abolish the 88 days.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN755
Yes, all right. Under this recently announced scheme for a new agricultural visa, you're aware, aren't you, that the Government, in its press announcement of this new agricultural visa, said:
PN756
The new seasonal agricultural worker visa would mirror the existing seasonal worker program.
PN757
Do you recall them saying that?‑‑‑I recall that in a press release.
PN758
And so you understand that mirroring the SWP would include mirroring of the approved employer and labour standards protections that are in place under that scheme?‑‑‑I understand that in relation to the press release, but Mr David Littleproud made subsequent statements to say that that would not be the case. And the National Farmers' Federation also released statements saying that the new agriculture visa needed to have greater flexibility and portability than an SWP, and the Government responded to that with a subsequent statement, saying that it would not match the SWP, and I was just (indistinct).
PN759
That's on the issue of how long the worker is tied to a particular employer?‑‑‑That's not my understanding. My understanding is that the subsequent statements that were made by the government, and my own conversations with Dr Anne Webster, who's a Nationals Member of Parliament, and Mr John Azaris, the leader of the agriculture committee. My understanding is that the agriculture visa at this point is not going to mirror the pre-approvals and the nature or the regulation of the SWP with worker induction and those other things that we talked about.
PN760
When you say "not going to mirror", your understanding is it's not going to be exactly the same as the SWP. Can I suggest to you that the stated intention of the government is and remains that the new visa arrangement will have protections to ensure that workers in horticulture are protected and that their visa is not misused, and so pay conditions will be in line with similar requirements and protections under the SWP?‑‑‑So other than the last phrase that you said just then, Mr Dalton, those similar statements have been made over the last decade about working holidaymakers working under the 88 days, that they are entitled to the same entitlements and pay under Australian law as any other group, and that the government is committed to ensuring that the integrity of their visas are maintained. So with respect, I would say I have grave concerns about the agriculture visa exacerbating the segmentation that already exists in this horticultural workforce, and I have grave concerns about the government following through with its initial intention to mirror the regulatory framework for the SWP, because in the aftermath of that announcement there were subsequent statements made which suggested to me and others that this was not going to be the case.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN761
Just so we're clear and that we can provide them to the Commission, when you say "subsequent statements", were they made publicly in the media or in parliament?‑‑‑My understanding is publicly in the media. But also I'm a member of the ministerial advisory council on skilled migration, and I have a number of dealing with members of parliament from the coalition government, and my understanding is that it is not going to mirror the SWP ‑ ‑ ‑
PN762
We can only deal with what is publicly announced, Dr Howe, so just if I can ask you specifically ‑ ‑ ‑ ?‑‑‑ ‑ ‑ ‑ those statements are in the media. There are certainly statements in the media to suggest that the agriculture visa is not going to replicate the SWP.
PN763
All right.
PN764
JUSTICE ROSS: Mr Dalton, can I ask is there any legal instrument that has been promulgated about any of this, or are we just dealing with a media announcement?
PN765
MR DALTON: Your Honour, there's a media announcement, and it's an administrative - we will supply you with the relevant provisions, but it's an administrative act that doesn't require - - -
PN766
JUSTICE ROSS: No, but is there some publication as to the terms and conditions, some initial documentation, or is it just a media announcement about a statement of intention?
PN767
MR DALTON: At this stage statement of intention.
PN768
JUSTICE ROSS: Well, okay. I'm not sure ultimately what weight we can attach to that. But we can deal with that in due course.
PN769
MR DALTON: Yes. Thank you, your Honour. All right, I will move on to another topic.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN770
Just in relation to your first witness statement, Dr Howe, just in terms of how it was prepared. You've got your witness statement, and then you've got some attachments to it. So I take it that in preparing your witness statement, as an expert, you approached the matter on the basis that it was your statement prepare, to check that it's correct and accurate, and you checked the attachments that you wanted to attach to it, and then you provided it to the union so that they could file in in the Commission?‑‑‑I think that's correct, yes.
PN771
All right. So just dealing with those attachments. JH1, that's the Durable Future report. Yes?‑‑‑Correct.
PN772
The copy of that report that you attached to your witness statement did not include the appendices to that report, did it?‑‑‑I would have to look at that, but I believe you if you say that it didn't, but I'm not familiar with that. It was some months ago now.
PN773
All right. But you as an independent expert, so just say - did you understand that you are being asked to be an independent expert, that is to provide expert opinions independent of the interests of the parties?‑‑‑Yes, of course. I was asked by Mr Robertson from the UWU if I would be willing to put together a brief statement about my understanding - about piece rates. And so at that point in time I put together a very brief statement because of my teaching load at the time. So that's correct.
PN774
But given that you understood that what you were being asked to do was to provide a witness statement containing your opinions and findings in your capacity as an expert on this subject matter independent of the interests of the parties, I take it that you approached it on that basis and prepared the statement yourself and prepared the attachments yourself?‑‑‑Of course.
PN775
Of course, yes. All right. Well, the copy of the statement that was filed in the Commission, your statement at JH1 provided a copy of your Durable Future report without the appendices?‑‑‑Okay.
PN776
Correct?‑‑‑Yes, I agree.
PN777
And JH2, you set out in your attachment there the letter of engagement that you received from the UWU asking you to undertake this task. Yes?‑‑‑(No audible reply)
PN778
And attached to that letter was a copy of the AWU's application?‑‑‑Yes.
PN779
And that application set out in detail all of the grounds and arguments that the AWU wanted to advance in support of its application?‑‑‑Yes.
PN780
And because it was attached to that letter from the UWU, I take it that you read it before you prepared your witness statement?‑‑‑Yes.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN781
Was anything else provided to you in terms of instructions?‑‑‑Not that I can recall.
PN782
Were you provided with any instructions in terms of expert witness code of conduct or just something that outlined in clear and concise terms how you were to approach the task in terms of being an independent expert? Did you receive any instruction along those lines?‑‑‑I think I received the expert practice note, now that you mention it. I can't remember the exact name of that document, but I received some guideline, I think, about that.
PN783
You didn't attach that to your statement?‑‑‑This is the first time that I've written an expert statement, and I didn't know that I had to. I'm sorry if that's an oversight.
PN784
I think one of the requirements in that code is to confirm that you agree to comply with the terms of that code, to set that out. You haven't done that, have you?‑‑‑No. I apologise for that.
PN785
Did you understand that in preparing your statement you were required to include all matters of significance that might bear upon any of the findings or opinions that you postulate in your witness statement?‑‑‑Could you repeat that question, Mr Dalton.
PN786
In approaching this task in providing a witness statement and a reply witness statement, did you understand that you were obliged to include all matters significant to any of the opinions or findings that you set out in your witness statement?‑‑‑Yes.
PN787
Did you understand that you were required to ensure that you didn't omit anything that might qualify any of the findings or opinions that you postulated in your expert evidence? Do you understand that?‑‑‑I do, but my statement that I made was a summary statement based on my expertise. Given that up done over a decade's worth of research, I couldn't possibly include everything in that statement, and given the time constraints and the capacity that I had. So I wasn't paid for this statement. I just made a very brief statement to say that generally in my assessment this is my findings on the temporary migrant cohort and the impact on piece rates.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN788
When you say that you prepared a brief statement, you're not suggesting to the Commission that in doing so you approached your task in a way that would fall short of those obligations that I outlined?‑‑‑No, but I met those obligations in that every single paragraph in this statement I carefully worded and I stand by, but obviously they stand on underpinning them is over a decade's worth of research in the horticulture field and in temporary labour migration more generally, so, it's impossible to include all of that in this statement. It's a summary statement.
PN789
In your reply statement - have you got a copy of that in front of you, Dr Howe?‑‑‑I do, thank you.
PN790
Can I ask you to go to paragraph 8?‑‑‑Yes.
PN791
Do you have that?‑‑‑I do.
PN792
I'll just ask you to take a moment just to familiarise yourself again with what you've said in that paragraph, because I'm going to ask you some questions about it?‑‑‑Okay.
PN793
So, there in that paragraph you're providing an explanation to the reader of the differences between, on the one hand, quantitative research, and on the other, qualitative research?‑‑‑Correct.
PN794
Quantitative research typically being focused on the what, what is happening; yes?‑‑‑Yes.
PN795
Qualitative research typically being focused on the how or the why, the underlying reasons or causes behind the what; correct?‑‑‑Correct.
PN796
And so, for example, seeking responses on the average weekly earnings of a particular group of workers is the what, that is, the quantitative approach; yes?‑‑‑Yes.
PN797
Whereas seeking explanations from respondents as to why those earnings are at a particular level is the why or how question, that's the qualitative approach?‑‑‑Yes.
PN798
Correct? Yes. So if you go back to your first statements, so your first statement, paragraph 19 ‑ ‑ ‑?‑‑‑Yes.
PN799
‑ ‑ ‑there you say, the last two lines, you make a finding, don't you?‑‑‑Yes.
PN800
That is, in fact:
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN801
They are paid well below the award minimum rate generally earning less than $15 an hour.
PN802
Yes?‑‑‑Yes.
PN803
So, that's a finding about what workers, who are on a piece rate, are generally paid, both by reference to the award minimum rates and by reference to a $15 dollar an hour figure?‑‑‑Yes.
PN804
That's a quantitative finding, isn't it?‑‑‑No. So ‑ ‑ ‑
PN805
It's the what, isn't it? It's concerned with what? In terms of the finding, that's a finding about what the employees are paid?‑‑‑I can see why you say that, but I chose my words very carefully, Mr Dalton, in that paragraph, and you can see that I said the data from my research, so, I did not say quantitative, because I did not see this as a quantitative finding, are generally set at levels and then further down, generally earning less. So, I deliberately used the word "generally" twice in that paragraph to make it clear that this is an approximation based on my observation and my research over many years in this field, that that's the case. I wasn't attempting to - if I wanted to say that this was a quantitative assessment, then I would have said that. It's an observation based on my research and my team's research over many years.
PN806
Sticking with your words, your words, because you say you were very careful in picking the words what you're telling the reader there is that there's data from a particular source, namely your research outlined at 6, that's paragraph 6 of this statement; correct?‑‑‑The research underpinning JH1, yes.
PN807
Yes. And what you're saying is that the data from that source that you identify supports the finding that you then set out in the rest of the paragraph?‑‑‑So, the data underpinning to ‑ ‑ ‑
PN808
Sorry, just answer my question. That's what it says; correct?‑‑‑Yes, the data from my research, yes.
PN809
Now, let's go to paragraph 6, so we understand exactly what you carefully described in paragraph 19 as the data source?‑‑‑yes.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN810
So, paragraph 6, you've made reference to the research project and the data that you obtained in that project, which is encapsulated in the report which is your durable future report that you attached as JH1; correct?‑‑‑So, I led an interdisciplinary research project, the outcome of which was the report. That's how I would understand that paragraph.
PN811
The data that's referred to in the durable future report is the data to which you refer at paragraph 19 as supporting the finding that you set out at paragraph 19. That's the only way this can be read I put to you?‑‑‑And I disagree. I say the report included concluding collection of data in relation to underpayment of wages, and the use of piece rates in employment of working holiday makers, so within academia it is common practice to publish research, and underpinning that research is a rigorous process of data collection. So, the report necessarily does not include everything we found, because it couldn't. As I explain in my reply statement we collated all our interviews extensively and the report was commissioned by industry by Vegetables WA for a particular purpose and there is a lot more data in that report than what we could include in Towards a Durable Future, but underpinning that is the interdisciplinary research project, and I wrote this statement based on my expertise in this area, and the data collection that I knew underpins it.
PN812
If we go to the durable future report, you'll see you've set out a table of contents at the start of the report?‑‑‑Yes.
PN813
And the structure is set out in terms of parts then chapters, and then if we go to the chapters we see various findings highlighted within each chapter; yes?‑‑‑That is correct.
PN814
You might recall that the findings were collected and listed in appendix B of the durable future report; yes?‑‑‑Yes.
PN815
So, in terms of the method of presentation of the report you were careful to capture and highlight findings drawn from the data and research that was the subject of that research project which was reported in this report; correct?‑‑‑That is correct, but it is not an exhaustive list of the findings.
PN816
The highlighted significant findings are listed in appendix B. They're the ones that are highlighted by the numbers, and that's the way that you structured the report?‑‑‑But it's not an exhaustive list, Mr Dalton. I think you should know this report was commissioned by industry, and prior to the report being publically released we held a workshop at the Wine Centre in Adelaide where industry was given copies of the draft report, and they had a clear brief for us that the report was to largely to be about labour supply challenges in the horticulture industry, and ‑ ‑ ‑
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN817
Yes. Yes?‑‑‑ ‑ ‑ ‑ the research team's understanding is that it also needed to be about the conditions of work. But, we gutted a whole lot of data and in that list of findings it's not exhaustive, and by way of example I published a chapter this year on trade unions and temporary migrant workers and ‑ ‑ ‑
PN818
Well, Dr Howe, I'm going to have to pull you up here. You need to just be responsive to my question. You really going off-piste?‑‑‑Sorry.
PN819
And, frankly, putting forward arguments. If you could just listen to the questions that I'm asking you, and be directly responsive, we'll finish this afternoon?‑‑‑I think the statement I would make is, it's not an exhaustive list of the findings, Mr Dalton.
PN820
All right. Well, one thing is for sure, is that we don't find this generally earn less than $15 per hour finding that you postulate at paragraph 19 of your statement, we don't see that finding anywhere in the Durable Future report, do we?‑‑‑No, we do not.
PN821
And we don't see it as a highlighted finding, and nor do we see it as an observational finding anywhere else in the report, do we?‑‑‑No, but there are reasons for that.
PN822
Now, the data the subject of your research for the Durable Future report is referred to in the appendices, isn't it?‑‑‑The methodology for collecting the data.
PN823
Yes. Well, that's how we find out what the data is. When you explain the methodology of the data, we will understand what you've actually referred to; the data sources?‑‑‑Yes. But we haven't got the transcripts (indistinct), for example.
PN824
An explanation of your method will disclose to the reader the data that you've drawn upon for the purposes of the report?‑‑‑Yes, it discloses the types of data.
PN825
And that's good academic practice, isn't it, so that you allow a reader of your report to evaluate your findings and conclusions in the report, by reference to the methodology that you've followed, taking account of the strengths and weaknesses of that methodology; correct?‑‑‑Correct.
PN826
And that methodology is set out at appendix A of your report; yes?‑‑‑Yes.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN827
You didn't attach appendix A to your witness statement, did you?‑‑‑No.
PN828
Can I take you to that appendix. So if you go to the PDF, because it's not in the court book, because it wasn't attached to your statement; if you go to that - - -
PN829
JUSTICE ROSS: Is it publicly available, Mr Dalton?
PN830
THE WITNESS: It is.
PN831
MR DALTON: Is it publicly available?
PN832
JUSTICE ROSS: Well, it's noted in the index. I'm just wondering whether it's publicly available, because you've obviously obtained it, that's all.
PN833
MR DALTON: Well, we asked for it. But I understand - - -
PN834
JUSTICE ROSS: All right.
PN835
MR DALTON: Yes, that – we explore the Internet, found what we thought might be it, asked the AWU – pardon me, asked the UWU to provide those appendices to us.
PN836
JUSTICE ROSS: All right, thanks.
PN837
MR DALTON: All right. So have you got a copy of that there? If you go to the bookmarks, the appendices should be at the start of the document. And then you'll see there's appendix A, appendix B, and appendix C, yes? All right. Go to appendix A, please. This research method, as explained here, discloses three phases of research; yes?‑‑‑Yes.
PN838
Phase 1 being meetings with key stakeholders, and effectively a desktop analysis of relevant documentation?‑‑‑Yes.
PN839
Phase 2 being a national survey of vegetable growers?‑‑‑Yes.
PN840
Where you arranged a specialist firm, market research firm by the OmniPoll, to conduct that survey; yes?‑‑‑Yes.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN841
That's a quantitative survey?‑‑‑That is, yes.
PN842
And phase 3 being stakeholder interviews and focus groups, according to the schedule of interviews that you set out in that table. And that's what you describe as a qualitative research technique?‑‑‑That is correct.
PN843
Going to phase 2, the OmniPoll, the right-hand column of page 1 of the appendix A, the second paragraph down there, it says:
PN844
The survey consisted of 332 telephone interviews with vegetable growers across all states of Australia, with 252 growers who had hired or paid pickers, packers or (indistinct) in the previous five years, with the remaining 80 growers relying exclusively on family members to perform the work.
PN845
Yes?‑‑‑Yes.
PN846
Now, then you set out further how the OmniPoll survey pool was compiled, with a broad-ranging telephone number review, of over 1500 contacts, resulting in a sample frame of over a thousand businesses?‑‑‑Yes.
PN847
And that ultimately led to a sample of 333 growers who responded to the questionnaire, telephone questionnaire; yes?‑‑‑Yes.
PN848
Correct?‑‑‑Correct.
PN849
And over the page, it says that that sample of 332(sic) growers interviewed grew over 30 different types of vegetables?‑‑‑Yes.
PN850
And the growers – 252 of them – employed or hired labour, so workers, in various numbers at their farms to do the harvest work. So it's a survey of growers who are employing various numbers of workers to do the harvest work?‑‑‑That is correct.
PN851
Sorry, you're a little bit faint, Dr Howe, I'm sorry - - -
PN852
JUSTICE ROSS: Just a moment, Mr Dalton. Yes, Mr Burke.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN853
MS BURKE: I was just going to say the same thing. I can't hear Dr Howe. Perhaps you might have something over your keyboard, or - - - ?‑‑‑Yes, perhaps it's my papers. And my voice is very hoarse, I'm sorry.
PN854
Thank you.
PN855
JUSTICE ROSS: Did you want to cover the last question, Mr Dalton, just to make sure we've got it?
PN856
MR DALTON: My last question was that the 252 growers who hired workers, and therefore answered questions relating to what they paid those workers. Those growers employed various numbers of workers to carry out their harvest work?‑‑‑Yes.
PN857
All right. Now, if you go to page 39 of appendix C – so appendix C is the national survey of vegetable growers?‑‑‑Yes.
PN858
Have you got that?‑‑‑Yes.
PN859
If you go to page 39 - - - ?‑‑‑I'm just getting to it.
PN860
Yes, I've had to scroll through too?‑‑‑All right, yes.
PN861
Just look at the top of that page. So this page reflects one of the questions that was asked of the respondents, this question relating specifically to what they paid their workers?‑‑‑Yes. Sorry, I'm looking at the document. Yes.
PN862
And there's two questions. So if you're paid by the hour, the question was:
PN863
What's the approximate hourly rate that you paid for the ordinary time
PN864
?‑‑‑Yes.
PN865
And for piece workers, it was:
PN866
For an average competent adult worker, what's the approximate hourly rate you pay for that ordinary time
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN867
?‑‑‑Yes.
PN868
All right. Go back two pages, to page 37. Do you see there's a pie chart?‑‑‑Yes.
PN869
And it's got percentages of the respondents. That's of the 252 growers who have answered the question about what they're paying their workers?‑‑‑Yes.
PN870
And 75 per cent of that cohort of 252 paid their workers only on an hourly basis, and so would advance the first question. Yes?‑‑‑Yes.
PN871
I've done the maths on that, but that's 189 growers who employed workers only on an hourly basis. And then for piece rates there is an overlap. I think that should be a 23 per cent figure, comparing this with the table in 39, 75 plus 22 and 2 only adds up to 99?‑‑‑That is true that 22 and 2 does, but OmniPoll prepared this document, so - - -
PN872
I know. I know, I'm just trying to interpret it. And so that 22/23 per cent ‑ ‑ ‑ ?‑‑‑I'm happy ‑ ‑ ‑
PN873
‑ ‑ ‑ 23 per cent is 58, being overlap there; and then the 2 per cent is five. And so 58 plus 5 is a total of 63 who employed workers on piece rates?‑‑‑Yes.
PN874
If you go to - and 189 plus 58 gives you 247. So if you go back to page 39 with the table at the bottom of the slide, you've got a left-hand table of paying by the hour, and you see the sample size of 247?‑‑‑Yes.
PN875
So that's both, you know, those who pay solely by reference to hourly rates and those who pay workers hourly rates and pay other workers piece rates. And the right-hand table covers the 58 plus 5, being that sample size of 63 that you see in brackets under the total?‑‑‑Yes.
PN876
Okay. The growers here are asked to specify an hourly rate, aren't they? So by both of those questions the growers who are responding to this question are being asked to specify an hourly rate?‑‑‑Yes.
PN877
And this table on page 39 in the middle sets out the benchmark for those rates, and so a comparison was then done by OmniPoll as to where those responses sat in relation to the award rates?‑‑‑Yes.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN878
And then that became the basis for the mapping out of the percentage of respondents who indicated that they paid at or above award rates, et cetera?‑‑‑Yes.
PN879
All right. So 80 per cent of the 63 growers paying piece rates specified a rate. Yes?‑‑‑Yes.
PN880
And out of the total of the 63 growers who paid piece rates, under this study on this set of responses, 65 per cent of them paid at the award rate or higher. Yes?‑‑‑Yes.
PN881
And as you said, this is quantitative research?‑‑‑It was a survey, yes.
PN882
It's quantitative research, it's what you're being paid?‑‑‑It is, but it did have its limitations, as - - -
PN883
I'm not asking you about that, I'm saying the nature of the technique and the answers given, and the data there is quantitative in nature?‑‑‑Yes.
PN884
And as part of your research for the Durable Future report, you must have reviewed and considered that survey data because it's set out in your methodology as phase 2 of the project work. Correct?‑‑‑Yes, it was data for the workforce for the project.
PN885
Yes. And so that survey data was that of the 63 growers paying their harvest workers by piece rates, 65 per cent of the reported paying an hourly equivalent rate at or above the applicable hourly rate in the award. Yes?‑‑‑Yes.
PN886
And in your first statement you omitted this appendix, didn't you?‑‑‑That was an oversight that the appendix was not there. But is the question you're asking me - - -
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN887
Come on, Dr Howe. These are appendices to the report that not only explain the methodology, but contain an entire phase - 1 or 3 of the phases of the work?‑‑‑I think you need to allow me to answer because you're attacking my integrity. I wasn't trying to hide this survey or the methodology in the appendix. There were two versions of the report that were produced by our graphic designer: one was the substantive report, and the second had the appendices as well; and in email form I emailed the first version because I can't email the second version. The university servers actually do not allow me to because of the requirements on the size of the files. That is the only reason. But this is all publicly available. And the NFF, FWA, AFBA, they all have copies of this report which was commissioned by industry. It's not like we were trying to hide our methodology and that survey ‑ ‑ ‑
PN888
You make no reference at all in the main body of your first statement to any of the appendices, so the reader of that first statement has no idea that there are appendices to your report, do they?‑‑‑But if they go to the report - - -
PN889
Just answer my question, please. Reading that first statement, the reader is unable to work out whether there are appendices attached to that report?‑‑‑But I direct them to the report.
PN890
Just answer my question. That's the case - - -
PN891
MS BURKE: Could she be allowed to answer your question, Mr Dalton.
PN892
MR DALTON: With respect, she's not answering my question, she's evading it and trying to say "but" and say something else.
PN893
THE WITNESS: Mr Dalton, I direct readers in my statement to the Towards a Durable Future report, and the report itself makes reference to the appendices.
PN894
MR DALTON: You make no ‑ ‑ ‑
PN895
JUSTICE ROSS: We can read the report for ourselves, Mr Dalton, we can see it doesn't make reference. And we've heard the witness's explanation.
PN896
MR DALTON: Yes. Thank you, your Honour.
PN897
And you make no mention at all in the main body of your statement to the OmniPoll survey, do you?‑‑‑No.
PN898
If we go back to paragraph 19 of your first statement?‑‑‑Yes.
PN899
Again I want to take you back to the words that you've carefully chosen?‑‑‑Mm-hm.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN900
And I want to draw your attention specifically to these words, I will read them out verbatim, "Data from my research outlined at 6." Can ask these questions: the OmniPoll survey results are part of that research data, aren't they?‑‑‑They are.
PN901
The OmniPoll survey results that I've taken you to at page 39 of appendix C don't support your finding at all, do they?‑‑‑I need to give more than a yes no answer to this. Am I allowed to?
PN902
No. Be responsive to the question. That survey data that I've taken you to ‑ ‑ ‑ ?‑‑‑The survey that you - - -
PN903
- - - page 39 of appendix C, doesn't support the finding that you state at paragraph 19 of your first statement. That's correct, isn't it?‑‑‑I disagree with your question. The OmniPoll survey at page 39 that you took me to, it says clearly, "Warning, small sample size." 63 was the size of the sample. So I did not include it here because as a research team we discounted - and OmniPoll gave us that advice that that particular finding wasn't robust on that point. And the second - and I make there in my reply statement, Mr Dalton. The second point I make is that the way - so quantitative research in that methodology, it's well known that survey respondents typically don't answer surveys in a way that incriminates them, and so the data that my research outlined at 6, that paragraph 19 is an overall assessment of my expertise in this field.
PN904
Can I suggest to you that if you were approaching the matter as an independent expert, you would have referred to it, because plainly it's relevant to the finding that you make at paragraph 19; and that if you thought there were limitations in the data, you would have addressed that in your first statement?‑‑‑This is a brief summary statement based on my expertise.
PN905
All right. So just in fairness I'm going to put to you that paragraph 19 is materially misleading, and you've only addressed appendix C and the OmniPoll data once Mr Houston, in his expert report, specifically drew this to the attention of the Commission in his expert report. Do you accept that?‑‑‑No, I do not. I reject that it's misleading.
PN906
Well, let's deal with your reply statement on this particular subject. So, in your reply you still stand by this finding at paragraph 19 of your first statement, don't you?‑‑‑I do.
PN907
And you make two points in support of your position. The first point you make in defending the finding is at paragraph 19 of your reply statement. Can I take you to that, please?‑‑‑Sure. Yes.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN908
Here you're putting your finding about piece rates being less than $15 per hour on an entirely different foundation to that which you set out at paragraph 19 of your first statement; correct?‑‑‑I'm just reading paragraph 19 again. No, I don't think that's correct.
PN909
You make no mention in paragraph 19 or anywhere in your first statement to your finding at paragraph 19 of your first statement being drawn, partly or wholly, by reference to your expert assessment "formed through extensive and robust mixed methodology over the years", do you?‑‑‑I thought that was my - my understanding in making an expert statement is that I'm making this on the basis of my expertise, so, paragraph 19 in the first statement says that, but in a summary form, because of the HoustonKemp report I felt that I needed to spell it out more clearly for the HoustonKemp purposes given the nature of that report.
PN910
Well, let's just deal with the substance of what you're referring to there, raising it for the first time in your reply that you make that statement that finding at paragraph 19 of your first statement drawing upon your expert assessment, "formed through extensive and robust mixed methodology, research of labour practices in the horticulture industry over many years", and then you have a footnote 7, and we go to the footnote, and it's your CV; yes?‑‑‑Yes.
PN911
So, in effect, you're saying in reply that, "Look, look at my CV, and just take my word for it, I'm an expert"; correct? That's your first point in your reply?‑‑‑The point of the CV was to show the extensive research grants and publications that I've done in this area.
PN912
Your next point is to provide a selection of responses in interviews that you conducted as part of phase 3 of the research work that went to the durable future report; yes?‑‑‑Yes, interviews and focus groups.
PN913
Interview and focus groups, okay. So those extracts that you're referring to come out of both one-on-one interviews with individual workers, and also things said by individuals in focus groups; is that right?‑‑‑That is correct.
PN914
And this ‑ ‑ ‑
PN915
JUSTICE ROSS: Mr Dalton, one of the Members of the Bench needs to have a short adjournment. Is now a convenient time?
PN916
MR DALTON: Yes, now is convenient, your Honour. Yes.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN917
JUSTICE ROSS: All right, we'll adjourn until 3.45.
PN918
Ms Howe, you'll remain under oath and - Dr Howe, I'm sorry, and don't discuss your evidence with anyone during the break, okay?‑‑‑Okay, thank you.
All right. Thank you.
<THE WITNESS WITHDREW [3.32 PM]
PN920
JUSTICE ROSS: We'll adjourn until 3.45. Thank you.
SHORT ADJOURNMENT [3.33 PM]
RESUMED [3.44 PM]
JUSTICE ROSS: Thank you, Mr Dalton. And Dr Howe, you're still on your previous oath?‑‑‑Thank you.
<JOANNA FATIMA VIANA HOWE, RECALLED [3.44 PM]
CROSS-EXAMINATION BY MR DALTON, CONTINUING [3.44 PM]
PN922
MR DALTON: Thank you, your Honour. All right. Dr Howe, I was taking you to the second point that you've raised in your reply, to deal with this issue around the finding that you've made at paragraph 19 in your first statement. So the second point you make is that you provide a selection of responses in interviews and surveys that you conducted as phase 3 of the research for the Durable Future report; correct?‑‑‑Yes.
PN923
And as you've previously given evidence about, just to confirm, that that's a qualitative research technique, phase 3?‑‑‑Yes.
PN924
All right. If you go to page 133 of appendix A – so, go to appendix A, which is only a couple of pages?‑‑‑Yes.
PN925
Sorry, I have may have mentioned surveys; it was interviews and focus groups, wasn't it?‑‑‑Yes.
PN926
And so, table 1, Schedule of interviews and focus groups: that sets out the 13 horticultural produce regions that you went to?‑‑‑Yes.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN927
And then the list of interview participants. They're one-on-one interviews, I take it?‑‑‑There were a couple of occasions, Mr Dalton, where there were two people present. But they weren't focus groups. Yes, but they were mostly one-on-one.
PN928
All right. And focus group participants – so you've got a list there of the number of participants who were at the focus group that was conducted for the location?‑‑‑Yes.
PN929
So there was one focus group for the various locations where you've listed the number of participants attending that focus group?‑‑‑In some locations, there were more than one focus group.
PN930
When you say there was more than one focus group, what, two?‑‑‑So, for example, in Wanneroo, there was two focus groups with growers. I can go through each one. Katherine, there was two. Gingin, there was four. These are the ones that I was personally involved in, so I can recall those numbers. Darwin, there was two.
PN931
Were they split between growers and other participants?‑‑‑Yes. So we would have grower focus groups, and then we would have worker focus groups. And then, typically, the stakeholders were done interview by interview most of the time.
PN932
All right. Were the participants in the focus groups also participants in interviews?‑‑‑Focus groups? I'm not sure that I am able to answer that. I'd have to look back at the data collection.
PN933
It doesn't make that clear in the methodology does it?‑‑‑In the description for phase 3 we do mention that we did these interviews and focus groups, and then there were additional interviews and focus groups, so, for example there was a Melbourne focus group with working holiday makers. And unfortunately this was, I think, 2017, so I'm not sure I can answer that question fully right now.
PN934
Now, the number of people interviewed for each location, if you look down here, ranged between zero and 24?‑‑‑Yes.
PN935
And for the majority of the locations the number of interviewees is less than 10?‑‑‑Correct.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN936
Focus groups range from zero at four of the 13 locations, to 40 participants; yes?‑‑‑Yes, that's correct.
PN937
JUSTICE ROSS: I'm sorry to interrupt, Mr Dalton, but I don't - I mean, it's a case of you can add it up, so I'm not sure it's something that follows from witness evidence.
PN938
MR DALTON: Yes.
PN939
JUSTICE ROSS: But I don't follow your first point. You said at most locations the number of interview participants was less than 10. How do you arrive at that? Six, I see ‑ ‑ ‑
PN940
MR DALTON: Yes, it's just ‑ ‑ ‑
PN941
JUSTICE ROSS: Yes, I missed the one at the top.
PN942
MR DALTON: Yes.
PN943
JUSTICE ROSS: Although - yes.
PN944
MR DALTON: It's seven, seven of 13 to be precise.
PN945
JUSTICE ROSS: Yes. Yes, no, I follow. Thank you.
PN946
MR DALTON: Thank you, your Honour.
PN947
Now, you don't describe an appendix A how you recruited participants for the interviews or the focus groups, do you?‑‑‑No, I don't think so.
PN948
Presumably they volunteered their participation?‑‑‑Yes.
PN949
So, there's a self-selection bias in that sample pool, isn't there?‑‑‑There is. And typically is in all qualitative and quantitative research in terms of who responds unless you have the entire population sample.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN950
Yes. And so to put that in its context here, self-selection bias would be that workers who are angry and disgruntled are going to be much more likely to attend those interviews and focus groups, and also provide responses of the kind that you've set out in your table in your reply statement?‑‑‑To respond to that what I would say is we did control - we did seek to control for that in relying upon ‑ ‑ ‑
PN951
Sorry, just, please, listen to my question, be responsive to my question, all right?‑‑‑But I put it ‑ ‑ ‑
PN952
So, to be responsive to my question ‑ ‑ ‑
PN953
MS BURKE: She is being responsive.
PN954
THE WITNESS: That was an inaccurate statement what you just said, so I'd like to correct it. Am I allowed to do that?
PN955
MR DALTON: With respect, Dr Howe, what you were trying to say was ways in which you can mitigate it. My question to you was a specific one, which was the context of self-selection bias that we're dealing with here is the fact that workers who are angry and disgruntled are going to be much more motivated to participate, to attend and participate and respond in those interviews and focus groups; that's correct, isn't it?‑‑‑No.
PN956
JUSTICE ROSS: Well, no, Mr Dalton. Just wait, Dr Howe. Are you putting the question generally, or are you putting it about this cohort who attended the focus groups?
PN957
MR DALTON: Generally, your Honour.
PN958
JUSTICE ROSS: Well, if you put it generally you can put that. But you need to make the distinction, and it wasn't clear from your question.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN959
So, Dr Howe, it's being put to you as a general proposition. You're not being asked how you might have controlled for it in this cohort, it's as a general proposition, all right?‑‑‑Okay. I think I agree that there is a self-selection bias. I'm not sure though that I agree, even for a general survey or case study, that that's the case, that it's always people with a grievance. The research doesn't - qualitative research method doesn't suggest that. It suggests they may have a variety of interests as to why they participate, so it could be about the incentive given to them, it could be about the way the group was advertised, it could be because they have an axe to grind.
PN960
MR DALTON: And you're not able to quantify the extent of that self-selection bias in the context of this particular phase 3 research, are you?‑‑‑No. But, as I said, we did seek to control for it.
PN961
Now, at paragraph 21 of your reply statement you describe a code book for your interviews and focus groups; yes?‑‑‑That is correct.
PN962
And so, the code book here is - there's a note which at footnote 8 you say that's a theme emerging from the data, one of the themes is you've identified as pay; yes?‑‑‑Correct.
PN963
And sources, footnote 9, tells us that that's the number of interviews and focus groups in which the theme has emerged. So, 36 of the interviews and focus groups that were conducted that we see in that list, 36 interviews/focus groups saw that particular theme of pay come up?‑‑‑So, 36 were primarily coded as pay. It doesn't mean that pay didn't come up in other places and was coded in to another note.
PN964
And then references is the number of instances in which it comes up on the transcript of interviews and focus groups. So it's every time it's mentioned that records the total for the theme of pay coming up in any interviews or focus groups that you conducted that are set out in that schedule?‑‑‑If it's coded as the primary note, yes.
PN965
So, in terms of the sample of qualitative responses substantively on the issue of pay we're dealing with a sample pool of up to 70, aren't we?‑‑‑Yes.
PN966
And it could be less than that because an individual could raise the matter of pay more than once; correct?‑‑‑Not just an individual, it could be a number of individuals in a focus group. So, it could be 10 people in a focus group and ‑ ‑ ‑
PN967
So, 70 is the absolute max and it's probably going to be somewhere between - well, you've got 36 interviews in total, you've got probably somewhere in the range of nine to 15 focus groups, so it might be somewhere in the range of 50 to 70 in terms of the sample pool of individuals who raise pay as a substantive theme that's captured on the transcript; correct?‑‑‑Look, I'm not sure if that's an accurate way of summarising that, because that 36, as I said, includes individuals and focus groups, so that's a rough estimate that you made. I'm not sure.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN968
All right. And, again, in terms of specific responses on pay can I suggest to you that the people who are most likely to raise concerns about pay are the ones who are most dissatisfied with their pay, again, reflecting a self-selection bias towards low paid workers. Do you accept that?‑‑‑We asked every person in the focus group, and interviews. We had a set interview instrument, and so everybody was asked about their pay.
PN969
Just answering my question. Do you accept it ‑ ‑ ‑ ?‑‑‑ ‑ ‑ ‑ researcher in my ‑ ‑ ‑
PN970
Whether you've asked them or not, the responses that you're going to get if they're raising concerns about low pay, that they're likely - the people who are - workers who are dissatisfied with their pay are the ones who are most likely to respond to that question. Yes?‑‑‑Is that in my project or in ‑ ‑ ‑
PN971
Yes, in phase 3 of your work?‑‑‑No, we asked everybody for a response on that question.
PN972
All right. Now, the table that you set out that you describe as a representative sample of the types of responses, you've not supplied all of the responses, have you? You've just selected what you assert to be representative. Yes?‑‑‑Yes.
PN973
Again you're asking us to take it on trust that this is representative of all of the responses, aren't you?‑‑‑I can't supply everything because of ethics approval.
PN974
Your table quotes 13 interviewees. Going through the table, I've added them up, there's 13?‑‑‑Which table are you referring to? The first ‑ ‑ ‑
PN975
I think it's paragraph 22 of your reply statement?‑‑‑Okay, so the first table with the substantive responses. Yes. One, two, three, four, five six, seven, eight, nine, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24.
PN976
Sorry, I beg your pardon, I should have been more specific about that question. In terms of the interviewee, so one on one interviews, I counted 13?‑‑‑How did you arrive at that number?
PN977
That's at paragraph 23, isn't it?‑‑‑That's a different table to the table at 22. Two, three, four, five, six, seven, eight - I'm not sure that I follow, Mr Dalton.
PN978
Yes. Well, look, just going through - I will deal with it in another way. If you go to paragraph 22?‑‑‑Yes.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN979
Looking at the table, looking at the column "interviewees", most of them are WHMs. Yes?‑‑‑That is correct.
PN980
In fact, nearly all of them are WHMs?‑‑‑That is correct.
PN981
And WHMs, consistent with the evidence you've given earlier, are the second most vulnerable group after undocumented migrants in this horticultural workforce. Yes?‑‑‑Yes, but there are layers of vulnerability within ‑ ‑ ‑
PN982
Just answer my question, please?‑‑‑Just within that ‑ ‑ ‑
PN983
It's the case, isn't it?‑‑‑Yes.
PN984
And WHMs make up a portion of the workforce, but are not representative of the entire population, are they?‑‑‑Of course, that's correct.
PN985
All right. The data that you've compiled in phase 3 of your research for the Durable Future report, I want to put to you that they have the following limitations: first limitation is that notwithstanding the deeper dive inquiry that a qualitative research technique has, across the 13 harvest locations there are small sets. It's a small sample set. Do you accept that that's a limitation?‑‑‑I think that is true of some of the locations, but not of - actually, I think - I wouldn't use the word small, but I think they're a subset. In some of the locations like Orange where there's this small horticultural community we had a much larger sample size than say in another - in Wanneroo, where there were strong grower respondents. So it really does depend on location.
PN986
All right. Second limitation is that the participation and responses in the interviews and focus groups is skewed by self-selection bias towards disgruntled workers, and you're not able to ascertain the extent of that bias. Do you accept that that's a limitation?‑‑‑No.
PN987
And the third limitation, particularly in relation to your extract of the responses that you've set out at paragraph 22 of your reply, there's a significant over-representation of WHMs who are not broadly representative of the horticultural workforce. Do you accept that that's a limitation?‑‑‑I agree with the first part, but not the second part.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN988
Can I suggest to you that phase 3 is not a reliable basis at all for the finding that you've made at paragraph 19 of your first statement as to what pickers in the horticultural industry broadly, as a broader population of piece rates workers, earn by reference to the award and by reference to this $15 an hour figure that you put. Do you accept that?‑‑‑I do not accept that.
PN989
And you've turned your face against the OmniPoll survey of growers that contradicts that finding. You don't even mention it in your statement. Can I suggest to you that that's reflective of a partisan approach to your witness evidence in this case. Do you accept that?‑‑‑Absolutely not. I strongly reject that. I did not include the survey because I did not think it was appropriate, and that in terms of feeding into my expert assessment about the $15 an hour as a general assessment. The survey was discounted based on the small sample size and the cautions that OmniPoll themselves gave us about that question and the response rate for it. So I absolutely reject that. And I've received funding from industry to do this research, as well has having worked with unions, and I consider myself to be as objective as anyone can be in this kind of research. So I really do strongly reject your last statement.
PN990
No more questions, your Honour.
PN991
JUSTICE ROSS: Thank you, Mr Dalton. Mr Donaghey, what are you wanting to do?
PN992
MR DONAGHEY: Given the time, I would be indebted for just a moment to seek instructions. It may be that Mr Dalton has covered the field. Could I ask for just an indulgence to make a phone call?
PN993
JUSTICE ROSS: Of course. Of course.
PN994
MR DONAGHEY: Thank you. If your Honour wishes to stay on the bench, I will be just a moment.
PN995
JUSTICE ROSS: Yes. No, we will all just stay where we are. I think that's probably the easiest way.
PN996
Just bear with us for a moment, Dr Howe. We won't be long?‑‑‑Thank you.
PN997
MS BURKE: Your Honour, if it's all right, I might take that opportunity to make a quick phone call as well. I do have one or two questions in re‑examination.
PN998
JUSTICE ROSS: No, no. Certainly.
*** JOANNA FATIMA VIANA HOWE XXN MR DALTON
PN999
MS BURKE: Thank you.
PN1000
MR DONAGHEY: Your Honour, Ms Burke appears to be off the phone, so I'm instructed not to proceed any further with cross-examination. Mr Dalton has covered the field, so that's the end of my involvement with this witness.
JUSTICE ROSS: Thank you, Mr Donaghey. Ms Burke, re-examination?
RE-EXAMINATION BY MS BURKE [4.08 PM]
PN1002
MS BURKE: Thank you. Yes. Dr Howe, you gave some evidence towards the end of your cross-examination that – in relation to the interviews and focus groups, and you said in your evidence that you sought to control for self-selection bias in those interviews and focus groups. How did you do that?‑‑‑So we did this through a number of ways. The first was in the recruitment advertisements. So this was phrased in a way that didn't suggest that we were asking people who were unsatisfied with their work to respond to the invitation.
PN1003
So the invitation was phrased neutrally, and (indistinct), 'You will receive a $50 voucher for participating' – sorry, $50 (indistinct) most recent project. It was $25. A $25 Woolworths or Coles voucher to turn up to a focus group for an interview. And the only thing that it asked you was about, 'Have you worked on a farm in Australia?' And if the answer is yes, you were (indistinct) to turn up to the interview. So the phrasing of the advertisement in qualitative research is very important, to control the self-selection bias. Secondly, (indistinct) with growers themselves - - -
PN1004
JUSTICE ROSS: Sorry, Dr Howe, can you just take a moment, just check there are no papers on - - - ?‑‑‑Yes, sorry - - -
PN1005
I'm just having a little bit of trouble picking you up, that's all?‑‑‑All right. Did you need me to repeat what I just said?
PN1006
I think that might be the safest course. It might just be my hearing, of course. It might not be the recording. But let's just be – make sure that we've captured what you've said?‑‑‑All right, thank you, your Honour. So, just briefly, we controlled the self-selection bias through a number of mechanisms.
*** JOANNA FATIMA VIANA HOWE RXN MS BURKE
PN1007
The first was through the nature of the advertisement and the recruitment, which is a common process in qualitative research, that you would phrase your recruitment email, or leaflet or brochure, or your Facebook post in a way that is neutral, and doesn't invite people with a grievance or an axe to grind to respond. So we merely said, 'We are conducting focus groups and interviews for anyone that's worked on a farm in Australia.' We didn't say it had to be a migrant. We just said, 'Anyone who has worked on a farm. And you'll receive a $25 voucher for your time.'
PN1008
So that's the first way through the generalised neutral nature of the invitation. The second was, we worked closely with growers. So, if anything, I think the self-selection bias may have been workers who growers themselves arranged for us to meet. So, for example, in many of the locations that I went to, the growers were very helpful in enabling us to meet in their lunch room and to conduct a focus group with workers. So in that regard, I would say that – because the growers that we spoke to for the project, the industry associations helped us, because they were funding the project.
PN1009
They gave us the grower details, and encouraged the growers to participate in the focus groups. Growers are very busy people, so they don't tend to want to do those things. So the growers that self-selected into our research tended to be more compliant growers, I would say. And they themselves extended the invitation to their workers, to say, 'In your lunch break, would you like to do this focus group?'
PN1010
And, again, the flyer was neutral. So if anything, the self-selection may have been the other way, so we took that into account in our research as well. And we also actively sought to interview local Australian workers, and also permanent residents as well, to ensure that we weren't just getting one particular cohort. But as was acknowledged in the cross-examination, working holiday makers certainly formed a substantial part of the respondents.
PN1011
MS BURKE: Thank you. I'm just not sure if you can hear me. Yes. It said, 'Unmuting.' Anyway, I don't have any further questions in re-examination.
JUSTICE ROSS: Thank you. So, nothing further required for the witness? Thank you for your evidence, Dr Howe. You're excused.
<THE WITNESS WITHDREW [4.13 PM]
PN1013
JUSTICE ROSS: That completes the evidence for (indistinct). So the schedule will be – well, the responses to the notices to produce, tomorrow at 9.30, I think, to be provided to the representatives of the UWU and AWU. And the next witness we have is Dr Underhill, who will be at 11 am on Thursday. And then we have the series of NFF witnesses in the afternoon.
*** JOANNA FATIMA VIANA HOWE RXN MS BURKE
PN1014
Mr Donaghey, can I just ask you to remind those witnesses that have provided responses to the notices to produce to make sure they have that material and their witness statements with them. And I think we've only – we've been provided with information from you, I think about one or two that have the poor internet connection and want to dial in.
PN1015
MR DONAGHEY: Yes.
PN1016
JUSTICE ROSS: Just have – give that matter some further thought tomorrow, and if there are others that, out of an abundance of caution, we need to deal with by telephone, then, as I indicated last week, that might be a sensible step.
PN1017
MR DONAGHEY: Thank you. I think my instructors have actually contacted your associate, your Honour, and provided phone numbers as a complete (indistinct).
PN1018
JUSTICE ROSS: Good, all right.
PN1019
MR DONAGHEY: And we've been cautious, in the sense that we were only going for phone where we consider that the Teams alternative simply won't work.
PN1020
JUSTICE ROSS: Yes, all right. That's fine. Anything else? Any other matter? No? All right, thanks very much, particularly for the efficient way in which we managed to get through it. I'll see you on Thursday at 11 am. We'll adjourn.
ADJOURNED UNTIL THURSDAY, 15 JULY 2021 [4.15 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
CHEE SING EE, AFFIRMED............................................................................. PN131
EXAMINATION-IN-CHIEF BY MR GIBIAN.................................................. PN131
EXHIBIT #AWU1 WITNESS STATEMENT OF CHEE SING EE................ PN150
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN150
RE-EXAMINATION BY MR GIBIAN............................................................... PN168
THE WITNESS WITHDREW............................................................................. PN176
XUELIANG WANG, AFFIRMED...................................................................... PN182
EXAMINATION-IN-CHIEF BY MR GIBIAN.................................................. PN182
EXHIBIT #AWU2 STATEMENT OF XUELIANG WANG............................ PN185
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN185
THE WITNESS WITHDREW............................................................................. PN197
MS HSU, AFFIRMED........................................................................................... PN202
EXAMINATION-IN-CHIEF BY MR GIBIAN.................................................. PN202
EXHIBIT #AWU3 WITNESS STATEMENT OF MS HSU............................. PN210
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN211
THE WITNESS WITHDREW............................................................................. PN226
ANTHONY LAWRENCE BEVAN, AFFIRMED.............................................. PN227
EXAMINATION-IN-CHIEF BY MR GIBIAN.................................................. PN227
EXHIBIT #AWU4 STATEMENT OF ANTHONY BEVAN DATED 16/03/2021 PN232
EXHIBIT #AWU5 STATEMENT OF ANTHONY BEVAN DATED 29/06/2021 PN235
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN237
THE WITNESS WITHDREW............................................................................. PN266
DARREN MICHAEL CAMERON, AFFIRMED.............................................. PN269
EXAMINATION-IN-CHIEF BY MR GIBIAN.................................................. PN269
EXHIBIT #AWU6 WITNESS STATEMENT OF DARREN CAMERON..... PN275
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN275
RE-EXAMINATION BY MR GIBIAN............................................................... PN289
THE WITNESS WITHDREW............................................................................. PN295
PHILIP JAMES GULAY, AFFIRMED.............................................................. PN299
EXAMINATION-IN-CHIEF BY MR GIBIAN.................................................. PN299
EXHIBIT #AWU7 STATEMENT OF PHILIP GULAY................................... PN305
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN305
RE-EXAMINATION BY MR GIBIAN............................................................... PN323
THE WITNESS WITHDREW............................................................................. PN329
RONALD BRIAN COWDREY, AFFIRMED.................................................... PN331
EXAMINATION-IN-CHIEF BY MR GIBIAN.................................................. PN331
EXHIBIT #AWU8 WITNESS STATEMENT OF RONALD BRIAN COWDREY DATED 09/03/2021............................................................................................................... PN338
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN339
RE-EXAMINATION BY MR GIBIAN............................................................... PN354
THE WITNESS WITHDREW............................................................................. PN358
SHANE MICHAEL ROULSTONE, AFFIRMED............................................. PN361
EXAMINATION-IN-CHIEF BY MR GIBIAN.................................................. PN361
EXHIBIT #AWU9 WITNESS STATEMENT OF SHANE MICHAEL ROULSTONE DATED 16/03/20201............................................................................................................. PN368
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN369
RE-EXAMINATION BY MR GIBIAN............................................................... PN382
THE WITNESS WITHDREW............................................................................. PN389
STEPHEN PETER CARTER, AFFIRMED....................................................... PN392
EXAMINATION-IN-CHIEF BY MR GIBIAN.................................................. PN392
EXHIBIT #AWU10 STATEMENT OF STEPHEN CARTER DATED 16/03/2021 PN399
EXHIBIT #AWU11 REPLY STATEMENT OF STEPHEN CARTER DATED 30/06/2021 PN407
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN410
RE-EXAMINATION BY MR GIBIAN............................................................... PN422
THE WITNESS WITHDREW............................................................................. PN425
SULEIMAN ALI, AFFIRMED............................................................................ PN433
EXAMINATION-IN-CHIEF BY MR GIBIAN.................................................. PN433
EXHIBIT #AWU12 STATEMENT OF SULEIMAN ALI, DATED 03/03/2021 PN439
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN440
THE WITNESS WITHDREW............................................................................. PN450
GEORGE ALEXANDER RAPHAEL ROBERTSON, SWORN...................... PN464
EXAMINATION-IN-CHIEF BY MS BURKE................................................... PN464
EXHIBIT #UWU1 STATEMENT OF GEORGE ROBERTSON.................... PN473
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN475
THE WITNESS WITHDREW............................................................................. PN497
RODNEY NOEL MCDONALD, AFFIRMED................................................... PN503
EXAMINATION-IN-CHIEF BY MS BURKE................................................... PN503
EXHIBIT #UWU2 WITNESS STATEMENT OF RODNEY NOEL MCDONALD PN514
EXHIBIT #UWU3 WITNESS STATEMENT OF RODNEY NOEL MCDONALD PN520
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN522
THE WITNESS WITHDREW............................................................................. PN535
LACHLAN SINCLAIR WAKEFIELD, AFFIRMED....................................... PN542
EXAMINATION-IN-CHIEF BY MS BURKE................................................... PN542
EXHIBIT #UWU4 STATEMENT OF LACHLAN WAKEFIELD.................. PN551
CROSS-EXAMINATION BY MR DONAGHEY.............................................. PN551
THE WITNESS WITHDREW............................................................................. PN568
EXHIBIT #AWU13 REPORT TITLED: WAGE DEBT: THE SHADOW OF THE MARKET. PART 2, THE HORTICULTURE INDUSTRY............................ PN577
EXHIBIT #AWU14 REPORT AT PAGE 240 OF THE COURT BOOK........ PN585
EXHIBIT #AWU15 REPORT TITLED: WORKING FOR $9 A DAY.......... PN588
EXHIBIT #UWU5 STATEMENT OF NIKO KARHU..................................... PN597
EXHIBIT #UWU6 STATEMENT OF WITNESS 1 INCLUDING CLARIFYING STATEMENT................................................................................................................................. PN626
JOANNA FATIMA VIANA HOWE, AFFIRMED............................................ PN632
EXAMINATION-IN-CHIEF BY MS BURKE................................................... PN632
EXHIBIT #UWU7 STATEMENT OF JOANNA HOWE PLUS ATTACHMENTS PN642
EXHIBIT #UWU8 SECOND STATEMENT OF JOANNA HOWE................ PN653
CROSS-EXAMINATION BY MR DALTON..................................................... PN656
THE WITNESS WITHDREW............................................................................. PN919
JOANNA FATIMA VIANA HOWE, RECALLED........................................... PN921
CROSS-EXAMINATION BY MR DALTON, CONTINUING........................ PN921
RE-EXAMINATION BY MS BURKE.............................................................. PN1001
THE WITNESS WITHDREW........................................................................... PN1012