PN1021

JUSTICE ROSS: Good morning. Are there any changes in any of the appearances? No? Look, there are a number of preliminary matters that I want to take you to. The first involves an email exchange between Mr Cornish and the AWU about Mr Cornish's response to a notice to produce. I understand that the relevant parties have that correspondence. Mr Cornish has asked for the Commission's guidance about what to do, which obviously we've not provided. But I want to make this observation: I don't really understand the basis for the notice to produce.

PN1022

This was a statement made in a submission, an assertion as to a fact. You've asked for the basis of it. Frankly, had the notice to produce been contested, speaking for myself, I wouldn't have issued it. I think the way to deal with assertions in submissions is to respond to them, to point out that there's no evidentiary basis for the assertion, and to deal with it that way.

PN1023

I think if we start chasing down everything every party said in a submission, demanding the production of documents in support of it, well, that's not a course I will be going down. So how do you want to deal with Mr Cornish's matter, Mr Gibian?

PN1024

MR GIBIAN: Look, I understand what your Honour says. We don't press it any further in those circumstances.

PN1025

JUSTICE ROSS: All right. Mr Cornish will know that - look, you will say what you want to say about that, and about the basis for it. It's simply an assertion in a submission. And presumably in due course you will be submitting that we should either give it no weight or little weight.

PN1026

MR GIBIAN: May it please.

PN1027

JUSTICE ROSS: That's the first matter. The second is, look, the approach I was proposing to take, just so that everyone's clear, would be the usual one. The material that has been provided in response to the notices to produce won't go into the Court Book or made public unless they're tendered at some point, so we will deal with it in the usual way. Can I go to you, Mr Dalton. I understand you want to tender the bundle of material that you took Dr Howe to yesterday.

PN1028

MR DALTON: Yes, your Honour.

PN1029

JUSTICE ROSS: And I take it there's no objection to any of that?

PN1030

MS BURKE: I wasn't aware that Mr Dalton wanted to do that. Can I just review the material and provide a proper response after lunch, your Honour.

PN1031

JUSTICE ROSS: All right. Can I just confirm, Mr Dalton, that material, they were the appendices to Dr Howe's report. That's the extent of it, isn't it?

PN1032

MR DALTON: There were the appendices and two of her published works, and I think one other document that was not in the court book.

PN1033

JUSTICE ROSS: All right. I might ask you to just have a discussion with Ms Burke and sort out how you want to deal with all of that, just so we're clear about the list, and we can return to that matter at a convenient point, perhaps after the luncheon adjournment.

PN1034

MS BURKE: Can I indicate there is no objection to the tender of the appendices, but I do need to review what those other documents are.

PN1035

JUSTICE ROSS: Yes. No, I want to look at the other documents too. I just thought it was the appendices. I can't imagine there would be a difficulty with published works by Dr Howe, but perhaps if you could just clarify that over the break, Mr Dalton, and - - -

PN1036

MR DALTON: Yes, your Honour. I recall that the fourth document is the press release of the Minister for Agriculture in relation to the agriculture visa that was the subject of some questions.

PN1037

MS BURKE: I definitely object to that because it wasn't put to Dr Howe.

PN1038

JUSTICE ROSS: Dr Howe wasn't shown a copy of the media release.

PN1039

MR DALTON: I read quotes from that press release. We would seek to tender it as a published document in any event.

PN1040

JUSTICE ROSS: Well, reflect on that over the break and see what you want to do about it. What weight would we give any press release at all?

PN1041

MR DALTON: I will (indistinct) to your Honour about that and we will make some submissions in relation to it.

PN1042

JUSTICE ROSS: Well, I think we will need to have that argument sooner rather than later, because Dr Howe contextualised that media release, and indicated there were subsequent statements. So if you're going to put it in it would need to be put in, in a full context - - -

PN1043

MR DALTON: Of course.

PN1044

JUSTICE ROSS: - - - but frankly if there's no actual decision that's reflected in some sort of regulatory instrument or administrative instrument then what on earth are we to do with it?

PN1045

MR DALTON: Your Honour, it will come up in the context of what, if any, reasonable assumptions can be made as to the composition of the workforce going forward. So at the moment we have got this pandemic that has sharply reduced the numbers of WHMs for example.

PN1046

JUSTICE ROSS: Yes, I certainly follow that, but bear in mind the approach that this tribunal has always adopted about any announcement in a budget statement, and this doesn't even seem to be that. It's a media release - - -

PN1047

MR DALTON: Your Honour, we will not be making the submission you should be taking on notice that that announced intention is going to be law, but we would say it's factual material, along with other factual material that you have, and we will be making submissions about what, if any, reasonable assumptions can be made about the future composition of the workforce. It may be that there's a lack of clarity, et cetera, but we reserve our position in relation to that.

PN1048

JUSTICE ROSS: All right. The two of you can have a discussion about whether you can reach an agreed position in relation to it, but I would be minded if you're seeking to tender that UWU would have leave to tender other documents relating to the same announcement - - -

PN1049

MR DALTON: Yes, your Honour.

PN1050

JUSTICE ROSS: - - - along the lines of Dr Howe and what she said in her evidence, and indeed if Dr Howe wants to put in a further statement and be subject to further questioning about that we would give consideration to that as well. I am just wanting to make sure that - I understand the argument you're putting, but it can't be put on the basis of one document when the evidence before us is that - Dr Howe's evidence at least - I understand what you say about that - is that, well that position shifted, and you put some material to her about, well it will have the same impact as the Pacific scheme and it might not be absolutely the same. Well, we are going to want to see all the documents.

PN1051

MR DALTON: No objection at all to that, your Honour, and we're currently investigating what is out there in terms of published statements that were subsequently made that Dr Howe referred to. So if we find any of that material we will be happy to put that before the Commission.

PN1052

JUSTICE ROSS: I am content to leave it to both counsel at the moment. We can revisit this at a convenient point. I might be overly sensitive about this, Mr Dalton, it has not really got anything to do with this case, but we are still trying to track down any public health order that follows the mandatory requirement on aged care workers to get vaccinated, and we can't seem to - and in WA the WA premier made some announcement that it would be compulsory for security workers, and we can't find anything about that either.

PN1053

MR DALTON: I understand, your Honour.

PN1054

JUSTICE ROSS: It's just that you have sort of hit me at the wrong time with the - can I raise - I think you have also advised that Mr Carter may want to refer to some documents in the course of cross-examination tomorrow. Is that right?

PN1055

MR DALTON: Mr King.

PN1056

JUSTICE ROSS: Mr King, I am sorry.

PN1057

MR DALTON: Yes. So, your Honour, I thought it might be opportune before Dr Underhill is called just to give you an up to date estimate from my client's perspective about the evidence scheduled between here and Friday afternoon.

PN1058

JUSTICE ROSS: Yes.

PN1059

MR DALTON: So we would estimate the cross-examination of Dr Underhill will be about an hour and a half. So for her to finish it may be that we have to sit into the lunch period.

PN1060

JUSTICE ROSS: Yes, that's fine. We will keep going until the conclusion of her evidence.

PN1061

MR DALTON: Thank you, your Honour. Then Mr King - it's not Mr Carter, it's Mr Nicholas King. There is a Mr Carter I think in the evidence, but AFPA is calling a manager of Costa Berry, and his name is Mr King. Now, we estimate around half an hour for examination-in-chief. There are also - - -

PN1062

JUSTICE ROSS: Can I just ask, Mr Dalton, why would there be any examination-in-chief given he's filed a statement?

PN1063

MR DALTON: There are a number of matters arising from numerous witness statements that have been filed by the union parties in early July, purportedly as part of reply materials, but of course a lot of it isn't, it's further in-chief, and that's after Mr King's statement, so - - -

PN1064

JUSTICE ROSS: Well, why not file a further statement by Mr King addressing those issues?

PN1065

MR DALTON: We were going to propose that, your Honour, and that should save time.

PN1066

JUSTICE ROSS: Yes, I think that would save some time. That would be the best way to - - -

PN1067

MR DALTON: Thank you, your Honour, we will do that. We will file that this evening. It may be around 8 o'clock in the evening.

PN1068

JUSTICE ROSS: No, that's fine, Mr Dalton. If you could provide it to the representatives of the AWU and UWU as well as filing it with us. If for whatever reason anything arises about the timing we can deal with that tomorrow morning.

PN1069

MR DALTON: Thank you, your Honour. Now, our other witness is our expert witness Mr Houston.

PN1070

JUSTICE ROSS: Yes.

PN1071

MR DALTON: There is a need for about 45 minutes of in-chief oral evidence from him to deal with matters arising from the reply reports of the experts of the union parties, which as you have seen are fairly substantive replies, and so there are some matters I want to ask Mr Houston about, and there's also the union's New South Wales report that was filed as an attachment to a reply statement of Mr Costa in early July subsequent to Mr Houston's report.

PN1072

JUSTICE ROSS: Are you able to deal with that in the same way by a further witness statement?

PN1073

MR DALTON: Realistically no, your Honour, but I can indicate that the oral evidence in relation to the union's New South Wales report would probably be around ten minutes, and probably around 15 minutes to 20 minutes in relation to each of the experts called by the unions, both in respect of their reply materials and anything that's come out of oral examination.

PN1074

JUSTICE ROSS: Give some further thought to it over the break. See if the supplementary statement can be provided by Mr Houston. If it can't the other option is to move Mr Houston to another day and we will hear from him on Monday or at some other convenient time.

PN1075

MR DALTON: Yes, your Honour.

PN1076

JUSTICE ROSS: I'm conscious that, you know, it's certainly easier for the Bench if we've got the ‑ ‑ ‑

PN1077

MR DALTON: Yes.

PN1078

JUSTICE ROSS: ‑ ‑ ‑statement and, you know, given that you've had the reply submissions by the two experts for some time, I'm not sure why a supplementary statement can't be the way forward.

PN1079

MR DALTON: Your Honour, we flagged this in an email before the programing hearing on 7 July. The difficulty that we have is that Mr Houston just wasn't available last week. We had very little ‑ ‑ ‑

PN1080

JUSTICE ROSS: Yes.

PN1081

MR DALTON: ‑ ‑ ‑opportunity to have access to him, because he was involved in another case.

PN1082

JUSTICE ROSS: We can deal with this evidence on Monday morning. That's the other way, and you can file the statement. So, give some thought to how we approach it, and I'd ask Ms Burke and Mr Gibian to give some thought to how they want to deal with it. I don't want it delayed past Monday, so it's either Monday or Sunday, I don't mind which, because otherwise we'll bump into the further timetable about the filing of material on the evidence. So give some thought to your respective positions, discuss it amongst yourselves. Hopefully you'll be able to arrive at a resolution. If not, you can report back after the lunch time break, okay?

PN1083

MR DALTON: Yes, your Honour.

PN1084

JUSTICE ROSS: Can I raise one more thing with you, Mr Dalton? Just bear with me one moment. Look, there is a question that I want to put to Dr Underhill, but I don't want to put it - it seems to me it sort of would be better put early, but I don't want to disrupt your cross-examination plans to put it bluntly. I don't want to, you know, stumble into in the middle of those.

PN1085

But the question is this, and it may be that either I ask it at the beginning or it's asked in examination-in-chief, but you'll see at paragraph 6 of her report she characterises it - but there are two research projects, one that she's designated research project 1, and the other is designated research project 2. It's reasonably apparent from paragraph 6 that research project 1, the methodology, et cetera, is published in the Journal of Industrial Relations article by Underhill and Rimmer of 2016 called Layered Vulnerability. And that is one of a number of documents that's attached. It's just there are a large number of articles attached.

PN1086

So, that was the first thing to clarify, is that where I find the methodology, et cetera, and the reporting of the results for research project number 1? What's not clear to me is in paragraph 2, the last sentence, she draws upon the findings of the project designated research project 2, and I want to know where that project has been - where, if at all, that project has been published, and where I would find the information about it. I'll be guided by you, Mr Dalton. I don't - yes.

PN1087

MR DALTON: Your Honour, I'm content for you to ask Dr Underhill that after examination-in-chief is completed or before I start cross-examination.

PN1088

JUSTICE ROSS: Thank you. Mr Donaghey, can I raise something with you?

PN1089

MR DONAGHEY: Yes, sir.

PN1090

JUSTICE ROSS: Look, this is really to avoid perhaps, you know, the risk of bringing Mr Rogers back. I had two questions for him that you may want to seek instructions about over the break and provide the material and then I won't need to raise these questions. It's about the survey at attachment F. The first thing I'm not clear about, look, it's reasonably apparent from all of the other employer and union evidence, you know, what findings they'll be said to support, I'm not sure on what basis you're putting the survey forward, whether it's put forward - there are really, well, essentially two options, it's a stratified random sample survey and the results can be generalised to the whole population of employers and employees in horticulture, or it's regarded broadly as anecdotal evidence and the views of those who'd responded to the survey.

PN1091

So, if you could reflect on that. The two issues that I had for Mr Rogers particularly were it's not clear to me - I think it was sent to NFF members. It's not clear to me how many employers and employees were sent the survey. (Indistinct) completed it but I don't know how many it went to.

PN1092

MR DONAGHEY: The material that has been sent to Mr Gibian's instructor indicates that that survey was mostly disseminated through newsletters. I should be able to find out what number of recipients received those newsletters as they were sent out electronically, and assist your Honour that way. Is that the kind of response that you're seeking?

PN1093

JUSTICE ROSS: Yes. Look, I think do the best you can with what you've got, Mr Donaghey.

PN1094

MR DONAGHEY: Yes.

PN1095

JUSTICE ROSS: The other thing, it's probably related to that, I was interested in the context in which they were asked to complete the survey. Presumably they just weren't sent the link. There would've been, you know, some sort of email or, as you say, what did the newsletter say?

PN1096

MR DONAGHEY: I think that too has been provided to Mr Gibian, but I think I should check that before I say any further.

PN1097

JUSTICE ROSS: No, that's fine. Okay. Thank you. The last thing was, as you know, the directions provide for the hearing of closing oral argument on Friday, 30 July. Closing written submissions by Monday the 26th, which will essentially focus on the evidentiary case. Can I ask you to consider, well, how we might do this. It occurs to me that I don't want to put you to the trouble of putting in reply written submissions when we've got an oral hearing on the Friday. But what would be of assistance is really more of an aide memoir that what parts of the evidence do you want to take us to in your reply, because that will just facilitate the hearing. I'm particularly thinking of my own ineptitude at traversing the digital court book. And that way I can turn up and have in a separate folder all of the relevant bits that you're going to want to take us to, and we can get through it much more quickly.

PN1098

So, I had in mind that you might, each of you, file that aide memoire by 12 noon on the Thursday. If you can give some thought to that. If that creates any difficulty, or if there's another way of doing it, let us know. As I say, it's not intended to be the full written submission, but it might say, look, "In reply to X", and it's just a series of dot points about the evidence you want to take us to, that's all.

PN1099

Okay, well, are there any other preliminary matters before we call Dr Underhill? No. And I take it that the witnesses for this afternoon are - if you can check that none of them are presently online and they're - not that it would matter too much with Dr Underhill's evidence, but in any event, we just should be consistent.

PN1100

We'll call Dr Underhill.

PN1101

THE ASSOCIATE: Dr Underhill, can you please state your full name for the Commission?

PN1102

DR UNDERHILL: My name is Elsa Margaret Underhill.

<ELSA MARGARET UNDERHILL, AFFIRMED [11.24 AM]

EXAMINATION-IN-CHIEF BY MR GIBIAN [11.24 AM]

PN1103

JUSTICE ROSS: Ms Burke. I'm sorry, Mr Gibian.

PN1104

MR GIBIAN: Ms Underhill, can you hear me adequately?‑‑‑I might try and turn my sound up a bit. Okay, that might be better.

PN1105

Sorry, Dr Underhill, you've just given your full name as Elsa Margaret Underhill?‑‑‑Yes.

PN1106

And your address is (address supplied)?‑‑‑Yes.

PN1107

And you're an academic currently visitor at Deakin University?‑‑‑That's correct.

PN1108

Now, you've completed two reports for the purposes of these proceedings, the first of those was dated 19 July this year - sorry, 19 March this year?‑‑‑Yes.

PN1109

Do you have your copy of that with you? I think it runs to some 41 paragraphs?‑‑‑Yes, I have that.

PN1110

And that report is true and correct to the best of your knowledge and recollection?‑‑‑It is.

*** ELSA MARGARET UNDERHILL XN MR GIBIAN

PN1111

I tender that report, your Honour.

PN1112

JUSTICE ROSS: I'll mark that exhibit AWU16.

EXHIBIT #AWU16 REPORT OF DR UNDERHILL DATED 19/03/2021

PN1113

MR GIBIAN: You then completed a report, a further report, which is headed Report in Reply or response to Mr Greg Houston's earnings of Horticulture Industry Piece Worker Report, dated 30 June?‑‑‑Yes.

PN1114

Do you have your copy of that with you as well?‑‑‑I have.

PN1115

Is it true and correct to the best of your knowledge and recollection?‑‑‑It is.

PN1116

I tender that report.

PN1117

JUSTICE ROSS: I'll mark that exhibit AWU17.

EXHIBIT #AWU17 REPLY REPORT OF DR UNDERHILL DATED 30/06/2021

PN1118

MR GIBIAN: That's the evidence-in-chief, your Honour.

PN1119

Dr Underhill, I think the President of the Commission wishes to ask you a question first of all before the representatives for the other parties?‑‑‑Okay.

PN1120

JUSTICE ROSS: Dr Underhill, can I take you to paragraphs 6 and 7 of your first statement?‑‑‑Yes.

PN1121

See towards the end of paragraph 6 you say you draw on the findings from this project, designated research project 1?‑‑‑That's correct.

PN1122

I see from earlier in the paragraph that that research has been published in the Journal of Industrial Relations. Is that the article by Underhill and Rimmer of 2016, Layered Vulnerability?‑‑‑That's correct.

*** ELSA MARGARET UNDERHILL XN MR GIBIAN

PN1123

And so, that's where I would find information about that research report, methodology, results, et cetera?‑‑‑Yes, you would.

PN1124

Can I go to paragraph 7, it looks at a 2018 study?‑‑‑Yes.

PN1125

Again, in the last sentence you draw on the findings from that project which you've designated research project 2?‑‑‑Yes.

PN1126

If that's been published, where would I find the information about the methodology and results for research project 2?‑‑‑That would be in the reference list.

PN1127

Yes?‑‑‑With Underhill, Huang, Yi and Rimmer.

PN1128

That's the second last matter on the reference list, in the Journal of Australian Political Economy; is that the one?‑‑‑That's it. Yes, that's right.

PN1129

All right. Thank you, Dr Underhill, that was all I had. Mr Dalton will now ask you some questions?‑‑‑Okay.

CROSS-EXAMINATION BY MR DALTON [11.28 AM]

PN1130

MR DALTON: Thank you, your Honour.

PN1131

Thank you, Dr Underhill. Now, the first subject that you were asked to opine about was the composition of the workforce in horticulture, so I want to ask you some questions about what you've said about that in your reports?‑‑‑Okay.

PN1132

So, look, in basic terms the workforce is broken into Australian residents that we can call local labour, on the one hand, and then on the other hand, temporary migrant labour?‑‑‑Yes.

PN1133

And just dealing with the temporary migrant labour cohort of that workforce, prior to the onset of a pandemic, that comprised four main groups. I'll just go through each of them, if you can confirm that I'm right?‑‑‑Yes.

PN1134

Work holiday makers or working holiday makers, we'd refer to as WHMs?‑‑‑Yes.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1135

And that's made up of the backpacker cohort, the 417 visa subclass and the 462 visa subclass?‑‑‑Mostly 417.

PN1136

Yes. Thank you. And then under the seasonable worker program and the pacific labour scheme we have a labour source through the Pacific Island nations?‑‑‑Yes.

PN1137

Then there are international students?‑‑‑Yes.

PN1138

And then the fourth main group is what you've described as undocumented migrants?‑‑‑Yes.

PN1139

Which would largely be made up of migrants who are overstaying their visa?‑‑‑Yes.

PN1140

And then you give your best attempted estimate of the approximate total numbers of the workforce in horticulture?‑‑‑Yes.

PN1141

I'll just ask you some questions about that. You cite figures in ABARES, that's A-B-A-R-E-S 2020 in a report entitled Labour Use in Australian Agriculture?‑‑‑Yes.

PN1142

Now, do you have access to the electronic court book?‑‑‑I do.

PN1143

Can you type in page 516? Have you got that?‑‑‑Not yet.

PN1144

Now, under the heading at the top of the page the figures that you refer to by reference to February 2019 are drawn from what we see there in the ‑ ‑ ‑?‑‑‑I don't have it yet.

PN1145

‑ ‑ ‑first sentence as the top paragraph?‑‑‑I think ‑ ‑ ‑

PN1146

You still haven't got it?

PN1147

JUSTICE ROSS: She doesn't have it yet, Mr Dalton.

PN1148

THE WITNESS: I don't have it yet.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1149

MR DALTON: Do you know the function of typing in the number in the top left?‑‑‑No.

PN1150

See how it says the number of pages, the contents ‑ ‑ ‑?‑‑‑Yes.

PN1151

‑ ‑ ‑and the number of pages, that little box there, if you type in the number and then press "enter" it should bring up the page?‑‑‑Thank you. Yes, I've got it.

PN1152

Great. So, just look at the top paragraph, I just want to confirm that that's the source that you'd used there?‑‑‑I would assume it's the source I used.

PN1153

You used February 2019 as a reference point because that shows the highest numbers for the season across the year, and you've used the 63,000 overseas workers figure plus the Australian seasonal workers figure for the equivalent month of 56,000?‑‑‑Yes.

PN1154

And that gives you a total of 119,000?‑‑‑Yes.

PN1155

Correct?‑‑‑That's correct.

PN1156

And you say in your report that the real number may be higher because this figure probably doesn't fully capture documented migrants; correct?‑‑‑Yes.

PN1157

Just while we're on page 516, if you have a look at the second paragraph. I'll just ask you to read that to yourself?‑‑‑Okay.

PN1158

So the figures that are put up there in the first paragraph, they're capturing workers regardless of how long they've worked in the horticulture industry?‑‑‑Yes.

PN1159

And the numbers vary according to seasonal and crop factors, of course?‑‑‑Yes.

PN1160

If you go to the fourth paragraph under the heading "Some regions are more reliant on overseas workers for horticulture than others", again you understand that there's considerable variability in terms of the mix of the labour force at particular times of the year, depending on particular regions and crops, et cetera?‑‑‑Yes.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1161

If I can get back to the documented workers, in your first report, you state that there are a further 60,000 workers on temporary protection visas or undocumented?‑‑‑I state there's an estimated 60,000.

PN1162

Yes?‑‑‑Because the figure cannot actually be known because undocumented are not usually counted in any official collection of data.

PN1163

Yes. Now the source to which you make reference there is what you describe as NUW 2018 and when we look at your bibliography, that's a union document, it's a flyer, it's not a research paper, is it?‑‑‑No, that's correct, it's a union document.

PN1164

Looking at that flyer, and if you need to look at it, by all means do so, but I've read it and I can't read any mention of temporary protection visas in that flyer?‑‑‑Right. I don't have the flyer in front of me.

PN1165

It's page 1633 of the court book, if you type that into that box?‑‑‑Okay, 1663. Yes, that's right, they describe them as "irregular workers".

PN1166

Yes, but I don't see a reference to "temporary protection visa holders here"?‑‑‑No, neither do I.

PN1167

Let's just focus on undocumented and if we work with the 60,000 that you have referred to there, you'll see that the reference to 60,000 in this union flyer is unsourced?‑‑‑Yes.

PN1168

Can I take you to where there's some sources of information on this that might give us a surer guide about the estimate?‑‑‑Okay.

PN1169

Have you got a PDF that was sent to you this morning?‑‑‑I have.

PN1170

Yes. You have printed that out, thank you?‑‑‑I did, yes.

PN1171

The first document is a 2017 Department of Home Affairs report. Just stopping there, your Honour, can I ask whether the Commission has a copy of that bundle?

PN1172

JUSTICE ROSS: I don't, no. I'm just making some enquiries.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1173

MR DALTON: Thank you, your Honour. It's a short bundle of materials that are not contained in the court book.

PN1174

THE WITNESS: I only have one page of statistics from that bundle. Is that - - -

PN1175

MR DALTON: Yes. What I've provided you is a 2017 Department of Home Affairs report that was referred to in footnote [10] of Dr Howe's expert report that's been provided to this Commission?‑‑‑Yes.

PN1176

I don't know whether you have read Dr Howe's report, have you?‑‑‑I've skimmed it. I wouldn't say I've read it closely.

PN1177

At paragraph 14 of her report, she gives some estimates here and she says 60,000 in the low point of the estimate and, at footnote [10], she gives a footnote and it's an electronic link to this document that I've provided you with an extract of?‑‑‑Right. So, are you talking about Joanna Howe's first or second statement?

PN1178

First?‑‑‑First?

PN1179

Yes?‑‑‑Do you want me to look at that?‑‑‑Yes, you can look at that just to check. It's paragraph 14, footnote [10]?‑‑‑Thirteen through to 18, did you say?

PN1180

Look at paragraph 14?‑‑‑Fourteen.

PN1181

And just look at footnote [10] and then cast your eye down to footnote [10] and you'll see that she makes reference to this Department of Home Affairs report?‑‑‑Yes.

PN1182

Can I ask you to look at that report, that extract that I've provided to you?‑‑‑Yes.

PN1183

Dr Howe refers to that estimate that you'll see about halfway down the page?‑‑‑Yes.

PN1184

Of 62,900 being an estimate of unlawful non-citizens in Australia as at 30 June 2018?‑‑‑Yes.

PN1185

That number would include all overseas migrants, regardless of whether they are working; correct?‑‑‑Yes, absolutely.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1186

And it would be right across Australia, regardless of any industry in which they happen to work?‑‑‑Yes.

PN1187

So, on that estimate, the number of undocumented workers in horticulture is likely to be a subset of that 60,000 estimate?‑‑‑Yes.

PN1188

You can't tell us how many that would be, but it would be a proportion of it?‑‑‑It would be a proportion.

PN1189

So there may be a number of thousand undocumented workers above the 119,000 estimate that you have provided us that aren't fully captured by that 119,000; is that a fair summary?‑‑‑I think so, yes.

PN1190

All right. If you go to page 294 of the court book, I just want to refer you to a recent survey that's been done by Unions New South Wales. Have you got that?‑‑‑I have, yes.

PN1191

You'll see at the start of that paper, it gives an estimate of approximately 142,000 workers in the horticultural industry. Do you see that reference, that figure?‑‑‑Yes.

PN1192

Now, it doesn't explicitly include undocumented workers, so it's possible on that estimate the numbers could be a number of thousand higher than the estimate that Unions New South Wales has provided?‑‑‑It could be, or perhaps they are included. I don't know where the data's come from.

PN1193

Yes. And so we're looking at around 120 to 140,000 on best estimates with the potential for a number of additional thousand undocumented workers who may not be fully captured by that figure?‑‑‑Perhaps.

PN1194

Yes?‑‑‑I mean I just don't know here the data's come from, so I can't say whether it includes undocumented or not.

PN1195

No. All right, so, going back to your estimate, it's 119,000 plus a number of thousand, we don't know how many?‑‑‑Yes.

PN1196

Of undocumented workers?‑‑‑Mm-hm.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1197

Yes?‑‑‑Yes.

PN1198

Dr Howe has, in her witness statement and also in a report that she published in 2017 called Towards A Durable Future, worked with an estimate of 130,000 but with the caveat that that may not include undocumented workers or labour hire workers. That was our understanding, although she wasn't entirely clear about that?‑‑‑Mm-hm.

PN1199

So, again, we're looking at an estimate of upwards of 120/130, maybe even 140,000 plus, best estimate?‑‑‑In horticulture.

PN1200

In horticulture, yes?‑‑‑Okay?

PN1201

I'm asking you?‑‑‑Well, I haven't read Joanna's reports, so I can't really comment on the numbers that she's given. What I've done is just based my data on the ABARES report, because that's a government agency which is funded to do research and collect data in agriculture, so I would hope that they'd be reasonably accurate.

PN1202

Yes?‑‑‑So the problem that we come back to repeatedly with research in horticulture in that it's actually very hard to get an exact number of workers that are actually in the industry.

PN1203

Yes. What that would be in terms of the uncertainty, it's an uncertainty as to the extent to which it's above that estimate of 119,000 which you've given us?‑‑‑Yes. Yes.

PN1204

Now, can I take you to page 1514 of the court book?‑‑‑Yes, I have it.

PN1205

This is the national agriculture workforce strategy document that you cite in your first report?‑‑‑Yes.

PN1206

Have a look at table 11. Have you seen that table before?‑‑‑Yes.

PN1207

Okay. So working with the estimates of the workforce contribution for 2018/2019 an estimate is provided there by this National Agriculture Labour Advisory Committee of approximately 30,000 to 35,000 working in agricultural work?‑‑‑Yes.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1208

Do you see that?‑‑‑Yes.

PN1209

All right. And Dr Howe at paragraph 12 of her first statement, if you want to have a look at that, you've got a hard copy there on your desk, paragraph 12 of her first statement?‑‑‑Before I can do can I just comment on how the data in that table, table 11, seems to be quite - the numbers are quite small relative to the ABS data that I collected, the unpublished data on the horticulture workforce, which around that period is sitting at around high 50s, low 62, 62,000. Her data seems a bit underestimating the number.

PN1210

We have figures that indicate that in the year before COVID hit, so 2018/2019, the total numbers combining both 417s and 462, the second year extensions, was around 43,000?‑‑‑Yes.

PN1211

And Dr Howe applied an 80 per cent quotient for the number who would be doing their 88 days on farms, and so she came up with a 36,000 estimate. Does that sound right to you in terms of an approach - - -?‑‑‑I would have thought it would be more than 80 per cent, I would be closer to 95 per cent.

PN1212

I noticed that in your statement - - -?‑‑‑That's based on - - -

PN1213

Can I - just on that if you go to page 943 of the court book?‑‑‑Okay.

PN1214

Yes. So this is the report dated June 2020 of the Department of Home Affairs on WHM visas?‑‑‑Yes.

PN1215

Now, at page 7 of that report - we have lost the page numbers on this actually, pardon me - there's a figure - we will find the court book page for you, Dr Underhill, I apologise - but there's a figure there of 82 per cent of a second year WHM visa applicants indicating that they undertook agricultural work to acquire their eligibility, and so the 80 per cent figure - it's closer to 80 per cent than the 95 per cent figure that you thought - that you put in your first statement?‑‑‑Yes. That's because that number has changed since we did our earlier research.

PN1216

Yes, all right. We will work with an 80 per cent. It's page 943, the last paragraph, so the bottom of the right-hand column. Do you see that? It's actually for the 2019/2020 year?‑‑‑Is this page 944?

PN1217

943?‑‑‑943. Yes, okay.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1218

So working with approximately 80 per cent off the second year visa applicants we are getting a figure of around 35,000, 36,000?‑‑‑Okay.

PN1219

And that lines up with that estimate that I have provided you - that I took you to earlier from the National Agricultural Labour Advisory Committee, correct?‑‑‑Okay.

PN1220

And so that's a fair working assumption in terms of the approximate numbers of WHMs in the horticulture workforce?‑‑‑Well, they're the ones that do 88 days. You have to remember that. Quite a number, and we don't have data on how many, but we do know that a number tried to get 88 days work, but they can't, and so their application for a second year visa is rejected.

PN1221

Yes. So there's an unquantified number in that category?‑‑‑Yes.

PN1222

And also that approximate figure that I have taken you to is in relation to farms and agriculture which is a broader class of work than horticulture, isn't it?‑‑‑Yes, but I don't think you'll find there are many 417s during the broader sort of grain crop work. It's not labour intensive. They tend to work in the labour intensive jobs which are low skilled. They can easily get work in that, and that's horticulture.

PN1223

Yes. So the majority would be in horticulture, but we don't know the extent of that majority, do we, you don't have a figure?‑‑‑No, we don't have an exact figure, but I would estimate that we're looking at about 95 per cent frankly.

PN1224

Do you have some data that would enable us to place confidence in that estimate?‑‑‑No, only having spoken to a variety of working holidaymakers in focus groups and the like.

PN1225

All right. So there's an unquantifiable upward influence as to WHMs who do some work, but don't qualify for the second year?‑‑‑Yes.

PN1226

And there's a downward influence in terms of the distinction between farms and horticulture, subject to the evidence that you have just given on that?‑‑‑Yes.

PN1227

And a reference to working holiday visa applicants in the data that I have taken you to, that would cover those people who have made an application for a second year visa, correct?‑‑‑In which data?

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1228

So page 943?‑‑‑943. So 943 tells you that - page 943, that 82 per cent of applicants - I would have assumed that that was successful applicants, but perhaps - - -

PN1229

It could be because the other figures they give on the page relate to second working holiday visas being granted?‑‑‑Yes.

PN1230

Yes, all right. So we're dealing with a total estimated workforce of 119,000, but likely to be more because it's likely that it doesn't fully capture undocumented workers, and that undocumented workers being a proportion of the estimated 62,000, et cetera, illegal migrants. It could be a number of thousand above 119,000. Correct?‑‑‑Yes.

PN1231

And then we're dealing with an approximation, again it's a bit rough, but for WHMs where there's around about, give or take, 35,000 in horticulture?‑‑‑I think 35,000 is too low. In 2018-19 we know that 37 and a half thousand (indistinct) their second year visa, and we know that - we don't know what percentage, but we do know that there are more that were working in horticulture and didn't get their second year visa. So I would be putting it up at least 40,000, not 35,000.

PN1232

You would say around 35, but it could be as high as 40,000, depending on how many are unsuccessful?‑‑‑I would say at least 40,000.

PN1233

I suggest to you that the data really tends to support it being closer to 35,000. But in any event, if we're looking at 40,000, it's 40,000 of a total workforce that's likely to be well in excess of 120,000. Do you accept that?‑‑‑I do.

PN1234

Yes, all right. Are you aware that in the year before the pandemic struck, that there were 12,200 workers under the seasonal workers program?‑‑‑Yes.

PN1235

And that number is likely to be accurate because they're all documented and approved in advance. Correct?‑‑‑Yes.

PN1236

And so 12,200 of 120,000-plus, but, you know, it is around about a 10 per cent - 9 to 10 per cent figure of the workforce, isn't it?‑‑‑Yes.

PN1237

Can I suggest to you that that's a material cohort of workers?‑‑‑10 per cent is.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1238

And on top of that there's the Pacific Labour Scheme that accesses labour from Pacific Island nations across a range of industries, and horticulture is one of them. Correct?‑‑‑Yes - - -

PN1239

And so there would be a cohort of Pacific Islanders making up horticulture under that scheme - - -?‑‑‑Yes.

PN1240

- - - in addition to the SWP scheme. Yes?‑‑‑Yes.

PN1241

And then there are international students; they could be substantial, particularly during non-semester periods?‑‑‑Our research didn't show international students as an important component of the horticulture workforce.

PN1242

But there could be a number of thousand at any given time of the year, particularly outside of lessons?‑‑‑There could be, but a lot of international students have work all year, so their need to go off and work during the break is perhaps not as pronounced as what we expect, because they do work in other jobs in warehousing, in retail, in, you know, service stations and the like all year. So would they be prepared to give those jobs up to go and do picking? I'm not sure. But in any event, they didn't feature strongly in either of our surveys. So I can't talk about what percentage there might be in horticulture, that simply weren't an important part of the data we collected.

PN1243

Yes. They're a cohort, on your research is it doesn't appear that they're an important - in the sense of being a substantial cohort in terms of, you know, 10 per cent-plus, for example, of the other cohorts that we've gone through. Is that correct?‑‑‑That's correct.

PN1244

Now can I start asking you some questions in relation to your prior researches?‑‑‑Okay.

PN1245

In preparing your report you've drawn data that you gathered in your prior research into harvest workers, and they're two surveys: the first one done in 2013-14?‑‑‑Yes.

PN1246

And the second in 2018?‑‑‑Yes.

PN1247

Can I take you to paragraph 25 of your first report?‑‑‑I have it.

PN1248

Can you read the first sentence to yourself?‑‑‑Yes.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1249

It reads as you making two findings. Let me set them out for you. You make a finding that the average earnings of piece rate workers in horticulture is about 60 per cent of what an average competent employee could expect to earn. See that?‑‑‑Yes.

PN1250

So that's a quantitative finding about how much piece rate workers in horticulture earn by reference to that concept of "average competent employee" that's in clause 15 of the award?‑‑‑Yes.

PN1251

Correct?‑‑‑Yes.

PN1252

And so that's quantifiable as a dollar figure?‑‑‑Yes.

PN1253

Yes. And that 60 per cent figure is drawn from the data in your first survey, isn't it?‑‑‑Yes.

PN1254

And you say at paragraph 26 that a similar pattern was found in your 2018 survey. Correct?‑‑‑Yes.

PN1255

So that's the essence of the reasoning in relation to that particular finding. Correct?‑‑‑Yes.

PN1256

Then there's a second finding in that first sentence of paragraph 25, isn't there?‑‑‑Mm-hm.

PN1257

That is that piece rate average earnings are below the average earnings of hourly rate workers. Yes?‑‑‑Yes.

PN1258

And so again that's a quantitative finding, but it's in relation to the earnings of hourly hire employees. Yes?‑‑‑Yes.

PN1259

And again that's drawn from the data in your 2014 and 2018 surveys?‑‑‑Yes.

PN1260

And just staying with that second finding, it's that finding and that finding alone that you've drawn on some statistical tests to support a contention that there is a statistically significant lower mean or median for piece rate population than for the hourly paid population. Is that correct?‑‑‑That is correct, but you will also note that I redid those tests ‑ ‑ ‑

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1261

Yes?‑‑‑ - - - and the revised data analysis is in my response to Mr Bretherton's analysis.

PN1262

Yes, and I will ask you some questions about that?‑‑‑Okay.

PN1263

I just wanted to be clear on the findings and the way in which you've used to the data to support each of those findings. All right. So to deal with the first survey. Before conducting that first survey, you conducted focus groups?‑‑‑Yes.

PN1264

And the purpose of the focus groups was to help you to design and administer the survey?‑‑‑Yes.

PN1265

You didn't use the focus groups to gather the data that you've set out in the tables 4 and 5?‑‑‑No, I didn't, that's right.

PN1266

You wanted to collect the data by way of an online survey?‑‑‑Yes.

PN1267

And in that way you could elicit the data in a controlled and consistent and systematic way?‑‑‑Yes.

PN1268

With the aim of - - -?‑‑‑Also because at the time we ran the focus groups, because focus groups give you more in-depth information, we needed those focus groups before we could design a survey, so we couldn't have distributed the survey at the focus groups because we simply didn't have the survey developed.

PN1269

Yes, and so one of the purposes of the focus groups was to get a better understanding of how you could target the population that you were wanting to survey?‑‑‑Yes.

PN1270

And you wanted to access a sufficient number of that population so you would have an adequate sample for statistical purposes?‑‑‑Yes.

PN1271

And in organising the focus groups, you were looking to target the WHMs, weren't you?‑‑‑Yes.

PN1272

Could I take you to the second document in the bundle of materials that aren't contained in the court book that you've printed out?‑‑‑Yes.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1273

So just behind the extract of the Department of Home Affairs report?‑‑‑Yes.

PN1274

That is an advertisement that you used to recruit backpackers involved in harvesting or farm work to participate in the focus groups?‑‑‑Yes.

PN1275

As that advertisement shows, you are specifically looking to target WHMs?‑‑‑Yes.

PN1276

And every one of the 64 workers that you interviewed in these focus groups was a temporary migrant?‑‑‑Yes. No, no, we did interview some - we had a focus group of farmers as well.

PN1277

Yes, 51 of the 64 were WHMs?‑‑‑Okay, yes.

PN1278

We find that in your Layered Vulnerability report. You set out at page 3 of that report how you went about the focus groups?‑‑‑Yes.

PN1279

You used the focus groups to determine how best to reach the WHMs for the purpose of your survey; yes?‑‑‑That was one of the - one of the outcomes in the focus groups, yes.

PN1280

Having done that, you then went about advertising for participants in the online survey targeting that population that you were wanting to survey, namely WHMs; correct?‑‑‑Yes, that's right.

PN1281

So if you look at the next document in that tender bundle, is that one of the means of communication that you used to advertise for participation by WHMs in your online survey?‑‑‑Yes. That's the postcards - it's a copy of the postcards we distributed.

PN1282

Right, that's the postcards, and the postcards were sent to backpacker hostels in the growing regions?‑‑‑Yes, well, in the picking regions.

PN1283

The picking regions?‑‑‑Only areas where they were picking.

PN1284

Yes. And I assume that the messaging in the postcards there, you used consistent messaging in the advertisements on the online platforms, the websites?‑‑‑That's right.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1285

Can I just take you to that document, that advertisement, the second page of it?‑‑‑Yes.

PN1286

You made it clear that it was an online survey and who was conducting it?‑‑‑Yes.

PN1287

Then you set out what the purpose and objective of the survey was; yes?‑‑‑Yes.

PN1288

The objective is stated there in the second sentence, isn't it? I'll read it out to you:

PN1289

Our objective is to understand the work risks and pressures experienced by workers, the steps taken by employers to minimise risks and how these processes can be improved.

PN1290

That's the purpose stated?‑‑‑Yes.

PN1291

So, its objective had a health and safety focus; yes?‑‑‑Well, that was one of the focuses. If you look at the introductory sentence, it also says it's investigating the employment and workplace health and safety experience.

PN1292

Yes, with the objective to understand what you set out there in the second sentence; yes?‑‑‑We could have - we could have repeated our objective is to understand the employment and workplace health and safety risks, but when you're developing a postcard which is used to advertise, you have to be frugal with words.

PN1293

Yes. And so you designed the survey questions and the distribution channels to fit the objectives of the research?‑‑‑Yes.

PN1294

You weren't trying to examine the whole population of Australian harvest workers, were you, rather your research was focused on WHMs?‑‑‑Yes.

PN1295

It wasn't the primary purpose of your research to determine pay outcomes of piece workers, was it?‑‑‑No.

PN1296

You weren't trying to get a representative sample of the whole population of harvest workers; that wasn't the purpose or objective of the research, was it?‑‑‑You cannot get a representative sample of harvest workers.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1297

Sorry, just be responsive to my question. So, you weren't trying by this online survey to get a representative sample of the whole population of the harvest workers; that was not the purpose of the research, was it?‑‑‑We knew we couldn't get a representative sample because we don't know what the population is. What we - - -

PN1298

Dr Underhill, just be responsive to my questions?‑‑‑What we sought - - -

PN1299

I am putting to you directly that the purpose of your research was to access and target one cohort of the total population of harvest workers, namely, WHMs; correct?‑‑‑Yes.

PN1300

And so you weren't trying to expand your sample outside of WHMs, were you?‑‑‑That wasn't our intention, but we did get responses from non-WHMs.

PN1301

Well, the people who responded to your survey, four out of five of them were WHMs, weren't they?‑‑‑Eight per cent, yes; 20 per cent weren't.

PN1302

None were Pacific Islanders?‑‑‑I think back in 2013/14, there were fewer than a hundred Pacific Islanders, so, no, not Pacific Islanders.

PN1303

All right. And we see the breakdown. Again, you set that out in your Layered Vulnerability report at page 4?‑‑‑Okay.

PN1304

Yes, I don't need to take you to it, but you confirm there that four out of five of the online survey respondents were WHMs?‑‑‑Well, actually, 90 per cent were.

PN1305

Ninety per cent?‑‑‑Yes, because it's year 1 and year 2 WHMs, and you'll see that less than 4 per cent were students.

PN1306

Yes, I see, yes. So, the four out of five is just the first year cohort and then there's the second year cohort, so the total of them is 90 per cent?‑‑‑Yes.

PN1307

All right. Now, within that target audience of WHMs, it was up to the individual as to whether or not to participate in the survey and complete the responses?‑‑‑Yes.

PN1308

That brings into play self-selection bias, doesn't it?‑‑‑Yes.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1309

That was an issue that was raised by Mr Greg Houston in his report, wasn't it?‑‑‑It was.

PN1310

And you have now acknowledged this in paragraph 9 of your reply report?‑‑‑Yes, I've acknowledged that there is self-selection bias and it occurs not just with piece rate workers, but also with hourly rate workers, and I also state that one way you can reduce self-section bias is by making your survey attractive to people who are otherwise disinterested, and so we sought to do that by paying people to complete the survey so that it would draw in people who were drawn to the money and not just the topic that the survey was.

PN1311

Yes. And so you say the effect of that or the impact of that, you explain in paragraph 9 of your reply; yes?‑‑‑I do explain it somewhere.

PN1312

Paragraph 9, Dr Underhill?‑‑‑And also paragraph 50 to 52.

PN1313

Yes. At paragraph 9, to be clear, you would expect that self-selection was reduced to some degree because of that financial incentive?‑‑‑Yes.

PN1314

But, as you rightly acknowledge in paragraph 9, it's not possible to estimate the extent to which that self-selection has biased the results?‑‑‑That's correct.

PN1315

All right. Now, the pay question in this online question was:

PN1316

In your current farm job, how much do you earn on average per hour?

PN1317

?‑‑‑Yes.

PN1318

Yes. And for an hourly rate worker that would be clear enough, but can I suggest to you for a piece rates worker that leaves a few things to their own interpretation, doesn't it?‑‑‑I think at the end of the day when they get their pay they can easily do a calculation on how much they've earnt per hour. So, no, I don't (audio malfunction).

PN1319

It leaves them to identify a period of time. Your question doesn't specify a period, does it?‑‑‑It says in their current job per hour.

PN1320

It doesn't say a period of time, does it?‑‑‑As in last week or this week?

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1321

They're going to have to work out hours, aren't they?‑‑‑Yes, they do need to.

PN1322

Yes. And so what I am saying is that you haven't unpacked that survey question to ask for example in the last fortnight estimate how many hours you worked excluding unpaid breaks and travel to and from work for example; you haven't asked that question, have you?‑‑‑I don't think there was a need to ask that question.

PN1323

And there wasn't a need because your focus of this survey was not about pay, was it, it was about mainly OHS issues in the WHM workforce, correct?‑‑‑No, it wasn't mainly about OHS issues, it was about employment and workplace health and safety, it was both.

PN1324

It certainly wasn't seeking to survey and ascertain pay outcomes across the entire horticulture workforce population, was it?‑‑‑It was not.

PN1325

No. The 2018 survey, that was done as part of a research project for the Victorian Government on how temporary migrant workers might access information about their employment rights. Is that a fair summary?‑‑‑Yes.

PN1326

And it was based on focus groups undertaken in Chinese and Korean languages targeting non-English speaking temporary migrant workers; yes?‑‑‑Yes, and a survey.

PN1327

And it wasn't aimed specifically at the horticulture industry, it was really focusing on the temporary migrant workers more broadly across industries; yes?‑‑‑Yes, that's right.

PN1328

And there was a particular focus on the Asian cohort of the WHMs?‑‑‑Yes.

PN1329

And of course the focus of the research was not pay, it was how they use social media and how they use that media to access information about their employment rights?‑‑‑Yes, and how they use it to communicate with other people.

PN1330

Yes. So then you produced an online survey?‑‑‑We did.

PN1331

Targeting that particular cohort, namely primarily Asian speaking WHMs?‑‑‑No, the survey was broader than that.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1332

WHMs?‑‑‑Yes.

PN1333

Okay?‑‑‑Well, temporary migrants, temporary migrant workers. It wasn't restricted to WHMs, it also included international students.

PN1334

Yes, thank you. All right. And again I am assuming that participation in that survey was voluntary?‑‑‑Yes.

PN1335

And so again that brings into play self-selection bias issues?‑‑‑Yes.

PN1336

And the only financial incentive to participate in that survey was a chance to win one of ten $100 e-gift cards, is that correct?‑‑‑That's right.

PN1337

So the self-selection bias risk with this 2018 survey is probably more profound than the first survey?‑‑‑Yes.

PN1338

And the question that you asked about pay was similar to the 2014 question, wasn't it, and I will quote it, quote, "How much do you currently earn on average per hour"?‑‑‑Yes.

PN1339

Now, at paragraph 29 of your reply, can I take you to that?‑‑‑Okay.

PN1340

Have a look at the last sentence in that paragraph?‑‑‑Yes.

PN1341

You acknowledge there that you cannot claim that the samples that you obtained in the 2014 survey and the 2018 survey are representative of the broader horticultural workforce because of the lack of population data; yes?‑‑‑Yes.

PN1342

That's a qualification that you should have raised in the first report. Do you accept that?‑‑‑I could have, but there's a statistical test which would enable you to take a non-probability sample to use it to indicate what is likely the population.

PN1343

We will get to that, but I think as you confirmed in your earlier evidence that only relates to the finding as to the relationship between average piece rate earnings and hourly rate earnings. It's not concerning - it doesn't address your other finding, the specific dollar finding about actual average earnings of piece rate workers. That's correct, isn't it?‑‑‑That's correct, yes.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1344

So I will get back to that question. Do you accept that you should have raised this qualification is an independent expert?‑‑‑Yes, I should have. It was careless.

PN1345

Now, in your first report you make the observation that WHMs are, quote, "Highly vulnerable to exploitation", particularly the non-English speaking ones. Do you recall making that observation.

PN1346

JUSTICE ROSS: Can you just take us to the paragraph, Mr Dalton.

PN1347

MR DALTON: Yes, your Honour, it's paragraph 17.

PN1348

JUSTICE ROSS: Thank you.

PN1349

MR DALTON: I think it's on page 9, so it's over the page. Paragraph 17 straddles pages.

PN1350

THE WITNESS: Yes.

PN1351

MR DALTON: And because of that characteristic they're more vulnerable to receiving poorer deals in relation to their pay rates, be it whether it's hourly pay or piece rates?‑‑‑Yes.

PN1352

And WHMs are likely to start the season with little or no experience, correct?‑‑‑Yes.

PN1353

Whereas local labour and SWP labour are more likely to have worked in prior harvests?‑‑‑You would expect so, yes, except for the new - the new seasonal workers.

PN1354

Yes. I say more likely?‑‑‑Yes. The return ones will have, the returning ones will have.

PN1355

Yes. And WHMs have a high attrition rate?‑‑‑Yes.

PN1356

And WHMs are largely there to get their 88 days?‑‑‑Yes.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1357

So that may be their primary motivation, not so much motivation to maximise earnings?‑‑‑Well, we know some of them do want to maximise earnings because they intend to use those savings to fund the rest of their time in Australia or the rest of their travel. Whether they want to - whether all of them want to maximise I think it's fair to say they do want to earn enough to pay their accommodation and their basic living food needs, and that - the focus groups we came across they weren't even achieving, some of them weren't even achieving that.

PN1358

Yes, all right. The group that you've targeted in your surveys, the WHMs, they're likely to be the worst paid, at least the worst excluding the undocumented migrant group?‑‑‑Probably. Yes. Yes, I think so.

PN1359

And so the fact that they dominate your samples that's going to skew the pay outcomes towards the lower end, isn't it?‑‑‑It might - that's a difficult question, because we have - you have to be making an assumption that if they're working alongside local workers that they're earning actually less per hour or being paid less per picking. You see the problem if you think the data is skewed down to the lower end, particularly with the hourly rates.

PN1360

You have not put in controls in your surveys to address that, have you?‑‑‑Well, we can't, we don't have the data.

PN1361

So that's an unknown?‑‑‑Whether they're being discriminated in ‑ ‑ ‑

PN1362

Just the example that you've used. So for example in your surveys you haven't compared like for like work as between piece rates workers and workers on hourly rates, have you? You didn't control for that?‑‑‑Well, we do ‑ ‑ ‑

PN1363

JUSTICE ROSS: I'm not sure I understand the question, Mr Dalton. Would you mind reframing it?

PN1364

MR DALTON: Yes.

PN1365

There's certain work in particular picking work and other linear work that's particularly likely to be the subject of piece rates. Correct?‑‑‑Yes.

PN1366

And then there are other tasks that are not really amenable to piece rates and that would be expected to be paid on the basis of hourly rates?‑‑‑Yes, which might be packing shed work, for example.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1367

And there could be other reasons why workers are employed on hourly rates, including the fact that they're return workers and are experienced and reliable?‑‑‑Well, we didn't come across are who were doing supervision, if that's what you're thinking. They were all just doing rudimentary harvesting work.

PN1368

If you're a newbie and you're doing picking, you're much more likely to be paid piece rates as distinct from hourly rates?‑‑‑Yes.

PN1369

My question is that you haven't put in any controls in your survey to allow for the possibility that there are members of the population of the hourly paid workers who are performing different work from members of the population of the piece rate workers. Correct?‑‑‑We did ask them what work they were doing, and they were all - other than I think about 10 or 20 responses, I've indicated in one of my reports they were actually all doing picking work, whether they were paid by the hour or paid pick rates. I can see if I can find it in my - which paragraph it's covered in.

PN1370

All right. Could I take you to paragraphs 28 and 29 of your reply statement, Dr Underton(sic)?‑‑‑Yes, I have that.

PN1371

Here you're saying, in reply to matters raised by Mr Houston in his report that it's practically impossible to get a truly representative sample of the entire population of the piece worker cohort in horticulture?‑‑‑Yes.

PN1372

And you say that that's due in summary to the lack of information about the population and its itinerant nature?‑‑‑Yes.

PN1373

But you would have to accept, wouldn't you, that when you were doing these surveys you weren't trying to get a representative sample of the whole horticultural piece worker population, were you?‑‑‑No, we weren't.

PN1374

And had you been trying, you could have got a more representative sample, couldn't you?‑‑‑No.

PN1375

Can I suggest to you that there were some things that you could have done that would have got a broader ‑ ‑ ‑ ?‑‑‑Okay.

PN1376

‑ ‑ ‑ sample beyond just WHMs?‑‑‑All right.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1377

For a start you wouldn't have limited your focus groups and advertising for participation in the focus groups to WHMs, you could have extended it to other participants in the labour market?‑‑‑Yes, I could have, like grey nomads, are you thinking?

PN1378

Local workers, grey nomads, Pacific Islands workers, et cetera?‑‑‑Sorry, there weren't Pacific Islanders back in 2013-14.

PN1379

Yes. They were there in 2018. But in any event, my question is you made no attempt to seek participation in focus groups from anyone who might give you some insight into how to access those other cohorts of the labour force in horticulture?‑‑‑That's because our project was about working holidaymakers in horticulture.

PN1380

Of course, and that's my very question. And I'm suggesting to you that had you had the relevant purpose here, namely: what are the average piece rate earnings of the broad population of horticulture workers, you would have made attempts to find out through focus groups: how do I access the broader labour market? Do you accept that?‑‑‑No, I don't, actually, because what we - piece rates are primarily paid in the picking area. We know that companies like Costa, 80 per cent of their workers are casuals. They use a high percentage of working holidaymakers, so I'm not sure what the point is. I mean, if you accept that most of the harvesting work is done by itinerant working holidaymakers, then our sample has looked at the most common group.

PN1381

I've taken you through the estimates, the figures, the total workforce, and the best estimates we can come up with for WHMs. It's clear from that evidence that there are a large number of non-WHMs who are performing they work?‑‑‑They do picking work.

PN1382

You're asking you that question?‑‑‑I am asking you that question, because I - you know, I think you can look at the total workforce figures, but you have to take into account that there are actually a lot of other employees in the industry who have permanent employment; who, you know, are working directly for farms, who aren't doing picking work.

PN1383

But, Dr Underhill, the ‑ ‑ ‑ ?‑‑‑ ‑ ‑ ‑ piece rates.

PN1384

Sorry, I may have cut you off. Sorry?‑‑‑They're not doing picking work and they're not subject to piece rates.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1385

Yes, but of course the nature of horticulture is that it is labour-intensive in relation to particular tasks, including picking, particularly around the harvest time?‑‑‑Yes.

PN1386

And so it's reasonable to proceed upon the basis that the vast majority of the numbers that we're dealing with in those estimates as to the total workforce in horticulture are doing work around the harvests?‑‑‑Yes. And I think you've will find that ABARES estimates that something like 57 per cent of harvesting work is done by working holidaymakers.

PN1387

All right. Can I suggest to you that you could have targeted growers and grower associations, at least in focus groups, to give you a better read on how to access a broader group of the workforce?‑‑‑Well, we did have a focus group of growers in Tasmania. We interviewed growers and labour hire in other locations. But that particular project was focusing upon working holidaymakers.

PN1388

Yes. And can I suggest to you that really what you've done here is in preparing your expert report in an attempt to answer the second subject that you were asked to opine about, namely the piece rates that are paid to workers in horticulture, that you've relied on data that you've collected about WHMs only, and collected for a particular purpose that's quite different from that particular question that you had been asked to address. Is that a fair point?‑‑‑Well, I don't think - I mean, the fact that the purpose of the survey was about employment, not just piece rates, doesn't in any way impact on the quality of the data around piece rates. That's my response to your second question. I'm sorry, I forgot what your first question was.

PN1389

I put to you that in fact this data is quite unrepresentative of the broader horticultural workforce, and for that reason it's not sound for you to rely on that data to support either of the findings that you've set out at paragraph 25 of your first report. Do you accept that?‑‑‑No, I don't. We know the sample is not representative, and we know it's impossible to be get a representative sample. We have focused on a group which make up almost 60 per cent of the picking workforce based on ABARES data. That was the group we focused upon. We then took non-parametric tests to see whether or not the data could be used to indicate what was happening in the population, and it showed that yes, the results impacting both surveys showed that this difference between the earnings of piece rate workers and the earnings of hourly rate workers was indicative to be the case across the workforce.

PN1390

That's a good segue into the next topic I wanted to ask you about, the statistical test. So just to confirm, to be absolutely clear, those tests - on both occasions the t‑test in your first report and the U test that you've used on reflection as a more appropriate test in your reply report, are to test the statistical significance of the second finding that you set out in paragraph 25, namely the relationship with the average piece rate earnings - - -?‑‑‑Yes.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1391

- - - as compared to hourly rate earnings?‑‑‑Yes.

PN1392

So just to be clear, those tests say nothing at all about actual piece rate earnings of the broader population, do they? It's a relationship test between two sample groups. Yes?‑‑‑It is a relationship test.

PN1393

The relationship test being: is the lower mean or median figure for piece rate workers within the population of piece rate workers in your sample statistically significant as compared to the higher mean or median for the population of hourly paid workers in your sample?‑‑‑Okay, yes.

PN1394

So the t-test is the one that you used in your first report, isn't it?‑‑‑Yes.

PN1395

That's a parametric test, isn't it?‑‑‑It is.

PN1396

And that means that it assumes that the two samples that you're wanting to compare are random and have a normal distribution?‑‑‑Yes.

PN1397

And following Mr Houston's report is it fair to say that on reflection you accept that that's not the proper test to apply for the purpose that you were wanting to deploy it in your - to respond to Mr Houston's report, and you've chosen to use the Mann-Whitney U test instead?‑‑‑That's right, yes.

PN1398

And the U test is a nonparametric test?‑‑‑Yes.

PN1399

And so you say the U test is a statistical technique that you say can be used to overcome the problem of having a non-repetitive sample?‑‑‑Yes, because it doesn't assume that you have a normal curve.

PN1400

It doesn't assume you have a normal curve?‑‑‑Yes.

PN1401

Yes?‑‑‑It's also known as a distribution-free test.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1402

All right. Mr Houston will give evidence that that is misconceived, and that the fact that the U test doesn't require you to assume a normal distribution still doesn't allow any conclusions to be drawn about whether the average value of a variable in those two samples that you've used approximates that in the population as a whole because you've used an unrepresented sample, WHMs only?‑‑‑I think he's wrong.

PN1403

All right. You don't agree with that?‑‑‑The difference is the result is weaker, but the result is valid.

PN1404

Can I suggest to you that all it does from a mathematical logic perspective is allow you to test the statistical significance of the difference in the median between the two populations that you've chosen - - -?‑‑‑It does that, yes - - -

PN1405

- - - piece rates and hourly rates?‑‑‑Yes.

PN1406

But it doesn't allow it then to extrapolate that as reflecting the relationship between those two groups in the broader population of the horticultural workforce, because the WHMs is only a portion of that broader population?‑‑‑Well, WHMs our close to 60 per cent of the picking population, so we don't know how different the earnings are for WHMs compared to local workers or grey nomads, who are said to be slower - I mean, based on what employers say, they're slower so they're probably earning less, and don't know what undocumenteds earn. But we do know that this data indicates that for this group, working holidaymakers, almost 60 per cent - until recently 60 per cent of the population of pickers, using the Mann-Whitney test, enables you to say: this is indicative of what is going to be happening in the rest of that population.

PN1407

So just to be clear, so do you accept the limitations of the application of the U test, that you're now saying that the pool of WHMs that you've used is broadly representative of the total horticultural workforce?‑‑‑I'm sorry, I'm not - can you say that again.

PN1408

Do you accept the limitations of the U test, that is that it's only useful to the extent that the pools that you're comparing are representative of the total population that you're targeting for the purposes of the hypothesis?‑‑‑Yes, I do, that's up to - that's based at 60 per cent of the picking workforce. And as I've just said, we know others who are slower pickers.

PN1409

All right. So you're raising a point about the extent to which WHMs might be representative of the total workforce?‑‑‑No, I'm just saying that if you want to think that - I mean, you have suggested that the data for WHMs will show lower earnings rates than what you might get in the rest of the population; and I'm just suggesting that there are reasons why in fact that might not be the case.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1410

That's not something you're able to quantify, is it?‑‑‑No.

PN1411

And you keep mentioning this 60 per cent. Can I suggest to you that - are you pointing to any particular data to support that?‑‑‑I am. Yes, I'm looking at ABARES from 2016, I think. It's in my first - where is it? Yes, it's a figure that NALAC gives that they've cited using ABARES data for 2019.

PN1412

Is that temporary migrants more generally?‑‑‑They just say temporary migrant workers.

PN1413

Yes, all right.

PN1414

JUSTICE ROSS: Can I just - I'm sorry, Mr Dalton.

PN1415

Where were you referring to there, Dr Underhill? You said it was somewhere in your first report?‑‑‑It's paragraph 12, the end of paragraph 12.

PN1416

Thank you.

PN1417

Sorry, Mr Dalton.

PN1418

MR DALTON: No, that's fine, your Honour.

PN1419

Now I just want to ask you some questions about what conclusions might be drawn from the data that you presented in tables 4 and 5. And to be clear, because you've updated and corrected table 5, we will work off tables 4 and 5 as you've set them out in your reply statement. Is that the way to go?‑‑‑Yes.

PN1420

If you look at the pay outcomes of time workers, hourly paid workers?‑‑‑This is for 2014?

PN1421

It's for both?‑‑‑Okay.

PN1422

So 4 is for 2014 and 5 is for 2018?‑‑‑Yes.

PN1423

All right. So looking at hourly paid workers in the table, so starting with table 4, the minimum is $3, the mean is $16.20. Both of those figures are clearly below the minimum award rate; yes?‑‑‑Yes.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1424

And the same is seen in table 5: minimum $10; mean $21.62. Again, both figures are clearly below the award minimum; yes?‑‑‑Yes.

PN1425

And so your surveys show that the average pay of an hourly‑paid worker is clearly below the award minimum; yes?‑‑‑Yes, it's below the award.

PN1426

So that shows, on your sample, that a substantial proportion of those hourly-paid workers are being paid in clear breach of the award?‑‑‑Well, it doesn't with respect to table 4 because the median rate is $18 and the award rate is $16.87. That's table 4.

PN1427

Table 4?‑‑‑Yes, there's a median rate $18.

PN1428

Yes. That's median, that's the middle point, but if you look at the mean, which is the average?‑‑‑Yes.

PN1429

You see how that says there $16.20?‑‑‑It does. It shows it's - - -

PN1430

I am dealing with average and medians. Hopefully everyone knows, but, to be clear, median is the mid-point between the lowest figure and the highest figure; yes?‑‑‑Yes, that's right.

PN1431

And mean is the average?‑‑‑Yes.

PN1432

So, getting back to my question, both those surveys show that the average pay of the hourly-paid worker is clearly below the minimum award rate?‑‑‑Well, for survey 1, it's 67 cents less than the award rate.

PN1433

Yes?‑‑‑And for survey 2, it's about $1.20 less per hour than the award.

PN1434

Yes. But this shows, to a greater or lesser degree, that there are - that there is an extent of underpayment that is likely to be explained by the employer being in clear breach of the award in respect of hourly-paid workers?‑‑‑It would appear so.

PN1435

You would accept, wouldn't you, that, as a matter of logic, an employer prepared to do that towards time workers would probably also be prepared to do that in relation to piece rate workers?‑‑‑Yes.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1436

In terms of the comparison between the pay outcomes for time workers and piece workers, you would accept, wouldn't you, as a basic law of statistics, that correlation doesn't equal causation, does it?‑‑‑That's correct.

PN1437

And a possible explanation for the lower pay outcomes of workers on piece rates in your sample is that the time workers and the piece workers are doing different tasks?‑‑‑No, actually I don't accept that because of the points I've raised earlier, which is that workers - - -

PN1438

You say a high proportion were doing indicatively the same tasks?‑‑‑Yes.

PN1439

All right. The averages that you present across tables 4 and 5, the population in each of those samples is across the entire - sorry, I'll ask the question in a different way. The populations that you've chosen for the surveys for both piece rate workers and time-based workers, you haven't put any controls in such as a minimum level of experience, have you?‑‑‑No.

PN1440

But you are aware that under the award clause for piece rate workers, it brings in that concept of average competent employee?‑‑‑Yes.

PN1441

And so if you're working out who is average within the competent employees, you need to exclude employees who are not competent?‑‑‑Yes.

PN1442

Your survey, we have no data on what proportion of the workforce in those samples would come within the concept of a competent worker, do we?‑‑‑No, we don't, but given they're mostly - well, they are working holidaymakers, who mostly are just doing their 88 days to get their second new visa, I expect quite a number don't have a chance of reaching competency standards, average competency.

PN1443

All right. But, as you say, you've not put any controls in for minimum levels of experience to take that out of the equation?‑‑‑No.

PN1444

Just going back to the different types of work that can be done in the horticulture industry, there's a range of different crops. Some of them can be harvested by machinery?‑‑‑Yes.

PN1445

And that would typically be hourly rate, or that's most likely to be paid at hourly rates, isn't it?‑‑‑Yes, I would expect so.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1446

All right. Now I just want to ask you some questions about the occupational health and safety issues that you've raised in your report, but, before I do that, can I just ask you this question: in accepting the engagement from the AWU to be an expert witness in this case, have you charged a fee?‑‑‑I have charged a fee.

PN1447

Can I now go to the section of your report that deals with occupational health and safety. Here you've set out - your report contains three sections, one of which is a linkage between piece rates and unsafe work practices; yes?‑‑‑Yes.

PN1448

And the other two sections address the matters that the AWU asked you to opine about?‑‑‑Yes.

PN1449

You weren't asked to opine about the OHS issues, were you?‑‑‑No, I wasn't, no.

PN1450

You have just volunteered that?‑‑‑Yes.

PN1451

An entire section of your report?‑‑‑Yes, that's right. My PhD involved OHS as one of the areas of it and it's an area I'm very interested in.

PN1452

Can I take you to paragraph 17 of your first report?‑‑‑Yes.

PN1453

You see the last sentence there?‑‑‑Yes, on page 9?

PN1454

Yes?‑‑‑Yes.

PN1455

If you just want to read that to yourself?‑‑‑Okay.

PN1456

You weren't asked to opine on that subject either, were you?‑‑‑No, I wasn't.

PN1457

No. Can you go to paragraph 21 in your first report?‑‑‑Yes.

PN1458

Again last sentence. Again you're setting out another view or conclusion or opinion that you hold?‑‑‑It's a real risk, isn't it, with academics? We don't know when to stop.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1459

Well said, Dr Underhill, but can I suggest to you that the reason that you've volunteered those things that you haven't been asked to opine about is because you have done substantial work on these things and you passionately hold those views and you wanted to use this opportunity to ventilate them? Is that a fair - - -?‑‑‑I've already put the views forward in the articles that I published and, yes, I do feel very strongly about it, but I didn't see this as a document in which I could vent passions at all. I viewed it as a means of taking the research that we'd done and using it in the public policy area.

PN1460

You understood your task was to assist the tribunal as an independent expert to opine about the things that an interested party, in fact a party that's moving for a particular form of relief in the tribunal was wanting you to address. Do you understand that?‑‑‑I do.

PN1461

And that your role was not to advance any particular cause or agenda either of your own or any interested party in the proceeding. Did you understand that?‑‑‑Yes, I understand that too.

PN1462

So you would accept, wouldn't you, on reflection that you shouldn't have included those things in your report?‑‑‑I shouldn't have included anything on OHS? Is that what you're suggesting?

PN1463

Yes, I am saying OHS and also those two last sentences that I took you to?‑‑‑Well, they are outside of the scope of what I was asked to do. I do accept that.

PN1464

Yes. That concludes the cross-examination, your Honour.

PN1465

JUSTICE ROSS: Thank you, Mr Dalton. Mr Donaghey, what's your position?

PN1466

MR DONAGHEY: The position is the same as for the previous expert witness. I would be indebted to the tribunal to be able to make a phone call which is likely to truncate some of the cross-examination I have, or if it's - I notice the time and I notice we were due to return at 1.30. So I am in your Honour's hands, but certainly - - -

PN1467

JUSTICE ROSS: Perhaps if you could make the phone call. I have got two short questions that I wanted to put that I don't think will traverse any of the same ground that you might be contemplating. I can do that while you're doing the phone call if that's convenient.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1468

MR DONAGHEY: If your Honour pleases.

PN1469

JUSTICE ROSS: Dr Underhill, can I take you to paragraph 12 of your first statement?‑‑‑Yes.

PN1470

And it's the last sentence there. I am just trying to understand; in reply to a question by Mr Dalton my note had that you had said that WHMs were close to 60 per cent of the picking population in horticulture?‑‑‑Yes, based on that ABARES and NALAC report, but in fact it's more precise than that, it says they're from overseas, It doesn't actually say WHMs.

PN1471

Yes, that was my question. Well - - -?‑‑‑So if they're not WHM and they're from overseas then there would be a number of Pacific Islanders in that group, and otherwise they'd be predominantly undocumented.

PN1472

The Pacific Islander cohort would depend on the time period. As I understood your evidence the first survey there were hardly any Pacific Islander - - -?‑‑‑That's right.

PN1473

- - - whereas in the second they were more of a feature of the cohort?‑‑‑Yes.

PN1474

Is that right?‑‑‑Yes.

PN1475

The second question, and we will come back to Mr Dalton if there's anything that arises from either of these, just in tables at 4 and 5 in your second statement?‑‑‑Yes.

PN1476

I must confess I always find mean and median slightly misleading, and I prefer to get a table with the actual responses for the 68 who were paid by the hour in survey 2, and the 47 who were paid by piece rates, but I don't know whether you still have the data that sits behind those two tables. So in other words for survey 1 that paid by the hour mean of $16.20 that's based on 158 responses, is that right, is that how I read that?‑‑‑Yes.

PN1477

Do you have the actual 158 responses?‑‑‑Yes.

PN1478

And the same for the 120 for piece rates?‑‑‑Yes.

PN1479

And the same in table 5 for paid by the hour and paid piece rates?‑‑‑Yes.

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1480

All right. If you could provide that to the AWU and I would ask that they file that material?‑‑‑I'm not sure what it is that you want. You want like a frequency of - - -

PN1481

No, I can work out the frequency. I just want to know the response of respondent 1, what did they say?‑‑‑Okay.

PN1482

What was their answer to that question that was put to them, that's all?‑‑‑Right. Okay.

PN1483

Because I see you have got the standard deviation. No, it wasn't to do a calculation, it was just to provide the raw material as it were?‑‑‑Okay.

PN1484

All right?‑‑‑I can do that.

PN1485

Thank you. Is it possible to do that early next week, Dr Underhill?‑‑‑Yes, but just to clarify what I would provide you with is the ID of each person - - -

PN1486

Yes?‑‑‑So the (indistinct), whatever, and the amount that they're earning?

PN1487

Yes, their answer to those questions, yes?‑‑‑Okay.

PN1488

And it's from that material that you've derived the mean and the median?‑‑‑Yes.

PN1489

And the minimum - because that would tell me for example how many people were on the minimum of $3?‑‑‑Yes.

PN1490

Yes, I see?‑‑‑There is a table - there is a table that - chart 1 and chart 2 also - - -

PN1491

Whereabouts are you?‑‑‑I'm on page 21 of page 22.

PN1492

Of?‑‑‑Of my response to Mr Houston. So it's paragraph 107.

PN1493

Yes?‑‑‑Chart 1 gives you distribution of the average hourly - - -

*** ELSA MARGARET UNDERHILL XXN MR DALTON

PN1494

Yes?‑‑‑And that's piece rate earnings. That gives you an idea of the distribution.

PN1495

It does. That's for both?‑‑‑Yes. I've got it over the page in survey 2.

PN1496

So that's for piece rate earnings for both?‑‑‑Yes.

PN1497

Do you have a similar chart for the hourly earnings?‑‑‑I could do that.

PN1498

All right. Well, that would answer my question. I suppose it's partly driven by a concern that those paid by the hour seem to be - have a look at the extent of underpayment really?‑‑‑Yes.

PN1499

And understand that point a little bit more. So if you could provide those charts to your instructor and the parties can make what comments they wish to make on that in their submissions on the evidence. Thank you, Dr Underhill?‑‑‑Thank you.

PN1500

Was there anything arising from any of that, Mr Dalton?

PN1501

MR DALTON: No, your Honour. Just while I am speaking perhaps I should ask for the cross-examination bundle to be tendered.

PN1502

JUSTICE ROSS: Any objection? No?

PN1503

MR DONAGHEY: No, your Honour.

EXHIBIT #AFPA1 BUNDLE OF MATERIAL USED FOR THE CROSS-EXAMINATION OF DR UNDERHILL

PN1504

JUSTICE ROSS: Thanks, Mr Dalton. Mr Donaghey?

PN1505

MR DONAGHEY: Yes, sir. No cross-examination for this witness.

PN1506

JUSTICE ROSS: All right, thank you. Mr Gibian, any re-examination.

RE-EXAMINATION BY MR GIBIAN [1.01 PM]

*** ELSA MARGARET UNDERHILL RXN MR GIBIAN

PN1507

MR GIBIAN: Yes, thank you. Dr Underhill, can you hear me again?‑‑‑I can hear you, yes.

PN1508

Just a few matters. You were asked at the commencement of the cross-examination some questions in relation to the composition of the workforce or the various components of that composition, and so far as working holidaymakers were concerned you were asked about two visa classes, I think the 417 visa and the 462 visa. Do you recall that?‑‑‑Yes, I do.

PN1509

I think in answer to that question you said mostly 417?‑‑‑Yes.

PN1510

Why did you say that?‑‑‑Because 462 visas at the time did not have an incentive to work in horticulture and made up a very small proportion of horticulture workers.

PN1511

When you said "at the time" in that answer what time were you referring to?‑‑‑Well, 2013/2014.

PN1512

Has that changed since then, has that situation changed?‑‑‑I think it might have changed in the last year or two.

PN1513

Do you know whether there is up to date information about the proportion of 417 versus 462 visa holders working in horticulture?‑‑‑No, I don't know. I don't think there is any.

PN1514

I understand. As of this year or in the last year or so?‑‑‑No, I don't think the data exists.

PN1515

Thank you. You were then asked some questions about international students and whether they were a component of the workforce and I think you indicated that in relation to studies you'd undertaken, they appeared to be a substantial component of the workforce. Do you recall saying that?‑‑‑I do.

PN1516

So far as the international student visas is concerned, is there any requirement under those visas to work in particular industries?‑‑‑No, not for international students.

*** ELSA MARGARET UNDERHILL RXN MR GIBIAN

PN1517

Finally in that respect, you were asked some - I think I probably understood the answer - but you were asked some questions about the extent to which there were Pacific Islanders involved through either the regional works program or the Pacific Islands employment worker program and I think you said in answer to one of those questions that in the 2013/14 period, there was, I think you said, no more than a hundred or so Pacific Islanders in the industry?‑‑‑Yes.

PN1518

What's your understanding as to why that was the case at that time?‑‑‑The regulations around hiring Pacific Islanders. The regulations were very strict and, as a result, employers didn't respond particularly favourably to the option of bringing in Pacific Islanders. Those regulations have been eased somewhat since.

PN1519

All right. When did that occur, about?‑‑‑I couldn't give you the dates. It's a program that has changed progressively to try and encourage more employers to use it, so I couldn't give the dates. Maybe five/six years ago.

PN1520

You were asked some questions in relation to whether working holidaymakers were a component of the workforce particularly vulnerable to exploitation, I think by reference to paragraph 17 of your report?‑‑‑Yes.

PN1521

Do you recall that?‑‑‑I do.

PN1522

It was suggested to you that they were likely to be paid worse - have worse pay levels than other workers, perhaps other than undocumented workers; do you recall being asked that question?‑‑‑Yes.

PN1523

I think you said in answer to that question that for that to be correct, you would have to assume that they were being paid less than other workers they were working alongside?‑‑‑Yes.

PN1524

Did your studies give any indication as to whether that was a phenomenon that occurred, that is that working holidaymakers were paid differently than persons who they worked alongside?‑‑‑No, it didn't appear in our study, although it has appeared anecdotally, I guess you'd say, in other people's research where particular groups like Koreans, for example, are hired at a different rate than other nationalities.

PN1525

When you say "anecdotally", was there particular research you had in mind in that respect?‑‑‑I couldn't name the research, but I know I have read about it and it's probably appeared in - possibly - in the Senate Inquiry, A National Disgrace. I think they may have covered this issue, but I couldn't say for certain. I just know that I have come across it in some writings.

*** ELSA MARGARET UNDERHILL RXN MR GIBIAN

PN1526

Next you were asked some questions in relation to whether there may have been a difference between the type of work undertaken by workers earning hourly rates compared to those employees or those workers receiving piece rates in the surveys that you conducted; do you recall that?‑‑‑Yes, I do.

PN1527

I think you said that virtually all of the workers were engaged in picking work?‑‑‑Yes.

PN1528

That were in the studies, and I think you were going to refer to part of your reply statement in that respect, but were moved on. Could I just ask you whether in your reply report, you intended to refer to paragraph 56, which is on page 11 of the report, page 331 of the court book?‑‑‑Yes.

PN1529

Which refers back to paragraphs 11 and 12?‑‑‑That's right, 95 per cent of respondents were performing harvesting work and probably some of that harvesting work is packing, in the packing sheds. Packing shed workers are more likely to be paid hourly rates. We had - - -

PN1530

I'm sorry?‑‑‑I'm sorry, I can't hear you. Are you talking?

PN1531

No?‑‑‑All right, okay.

PN1532

Just have a moment. You were then asked some questions in relation to - sorry, at the start of the cross-examination, you were asked some questions about the total workforce numbers and I think it was suggested to you that it was - you'd used a figure of 119,000, but it may be somewhat higher than that as a result of the presence of undocumented workers specifically?‑‑‑Yes.

PN1533

You were then asked some questions later in the cross-examination about the proportion of that total workforce were comprised of working holidaymakers and - or perhaps I'll go back a step - and it was in that context that the figure of 57 per cent or upwards of 60 per cent of the picking workforce, as you understood it, were working holidaymakers, or at least from overseas, as was later clarified; correct?‑‑‑That's right, yes.

PN1534

Is there data as to the proportion of the total workforce, the 119,000 figure, or some were higher than that, whatever it might be, are engaged in seasonal harvesting work as opposed to, as you refer to it, ongoing (indistinct) work?‑‑‑No, I don't believe there is. I haven't come across any.

*** ELSA MARGARET UNDERHILL RXN MR GIBIAN

PN1535

Finally, I think, you were asked - and this might be addressed by the matter that His Honour the President raised with you, but you were asked some questions in relation to tables 4 and 5 in the reply report. I'm just struggling to find it. It's on page 9 of that report and pages (audio malfunction) of the court book?‑‑‑Yes.

PN1536

Noting the observation about the mean versus the median, I just wanted to ask you whether my understanding of what is shown in table 4, for example, is accurate. The mean, so far as hourly workers/employees you were asked about, is a figure of $16.20; do you see that?‑‑‑Yes.

PN1537

And the median was an amount of $18?‑‑‑Yes.

PN1538

I think Mr Dalton asked you - wanted to direct your attention to the mean and you directed his attention to the median. Do you recall that?‑‑‑Yes.

PN1539

He put to you, as I recall it at least, if I've accurately understood his question, that the median was the midpoint between the highest earning amount and the lowest hourly amount. That's what he put to you?‑‑‑Yes.

PN1540

My understanding is, and can you tell me whether this is right or this is wrong, is that the median, that is the $18 figure in this, is the middle of all of the responses; that is it is the individual employee who was the middle of all the responses. Is that right?‑‑‑Yes, that's right. 50 per cent person.

PN1541

That is half of the workers on hourly rates were earning above $18, or half minus one, and half were earning below. Is that a correct understanding as to the median?‑‑‑Yes.

PN1542

Can I just have a moment, your Honour. Thank you, your Honour. Those were the initial matters.

PN1543

Thank you, Dr Underhill?‑‑‑Okay. Thank you.

PN1544

JUSTICE ROSS: Nothing further for the witness?

PN1545

Thank you for your evidence, Dr Underhill. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [1.15 PM]

*** ELSA MARGARET UNDERHILL RXN MR GIBIAN

PN1546

JUSTICE ROSS: I'm conscious that it's not quarter past. I was going to propose, in order to give you some break, that we resume at 2 o'clock. My associate will contact each of the witnesses to let them know that if they can be available at 2 o'clock. That should enable us to finish comfortably in the time this afternoon, given the estimates, which - well, we will see whether 20 minutes is required for each in any event, but.

PN1547

There were two tasks over the break. Can I suggest that the task in relation to the material that the AFPA wanted to tender arising from Dr Howe's cross‑examination, you can attend to that later today, really, and come back tomorrow morning. But I do want you to discuss how we deal with Dr Houston's examination-in-chief and whether that can be reduced to a statement, because I'm conscious that the timetable for tomorrow is relatively tight, starting at 9.30.

PN1548

The unions have estimated already two hours of cross‑examination of Dr Houston; then if you add the examination-in-chief and the re‑examination, I'm concerned about the timeframe. Having regard to the fact that the evidence is intended to assist the Commission as well, certainly speaking for myself, not that I'm wishing to, you know, ignore any issues of fairness to opposing counsel, Mr Dalton, but I would be assisted by a further statement, because that would give me time to think it through in the event that I have any issues that I wanted to raise.

PN1549

But I understand the - it may be that that can be filed tomorrow morning; it may be, to assist that, we can start slightly later than 9.30. But if you could give some consideration to those matters, have a discussion amongst yourselves, and we will see where we go with it.

PN1550

MR GIBIAN: Can I just indicate a matter about that, your Honour - well, two matters. The first is that we would have some concern about having sufficient time to deal with whatever - if it's 45 minutes of evidence-in-chief that's raised with Mr Houston, particularly if it's of a nature of detail that might require us to seek instructions from Dr Underhill, for example, and whether that would be possible even if there's a statement tomorrow morning, I'm not sure.

PN1551

JUSTICE ROSS: We will have a better idea if there's a statement tomorrow morning that we would ‑ ‑ ‑

PN1552

MR GIBIAN: Of course.

PN1553

JUSTICE ROSS: ‑ ‑ ‑ and we can then deal with it when the statement is filed, as opposed to trying to deal with it while Mr Houston is in the witness box, and perhaps then recalling him. If in fact the judgment is that it's so detailed that you need instructions, it can't be done, then there would be no point in bringing Mr Houston on in the afternoon, we would have to bring him back.

PN1554

MR GIBIAN: Yes, I share that view. The other matter I was just going to raise was that your Honour mentioned Monday. I'm not available on Monday ‑ ‑ ‑

PN1555

JUSTICE ROSS: Well, you are, in the sense that you're in the Menulog matter, and I've spoken to Catanzariti VP and - or whatever it is, Deliveroo ‑ ‑ ‑

PN1556

MR GIBIAN: Deliveroo.

PN1557

JUSTICE ROSS: ‑ ‑ ‑ matter before you. No, we will adjust the timing of that, so worry not.

PN1558

MR GIBIAN: So long as your Honour ‑ ‑ ‑

PN1559

JUSTICE ROSS: It's either that, or we can certainly deal with it on Sunday. That's the other option. It's only one witness. It's not going to take that long. So we can deal with it either way, but we need to get on with it on the timeframe.

PN1560

MR GIBIAN: I understand, your Honour. Your Honour was conscious of my difficulties.

PN1561

JUSTICE ROSS: No, no, always trying to help, Mr Gibian. But if I can ask the relevant parties to give some consideration to all of that and see what the best way forward is.

PN1562

MR GIBIAN: May it please.

PN1563

JUSTICE ROSS: Thanks very much. We will adjourn until 2 pm.

LUNCHEON ADJOURNMENT [1.20 PM]

RESUMED [2.01 PM]

PN1564

JUSTICE ROSS: All right. Can we start with Mr Houston, and what's to be done with him? Anybody?

PN1565

MR GIBIAN: I understand that there were communications between Ms Burke and Mr Dalton's junior. I have only got second-hand reports of that and I think Mr Dalton and his junior were considering the matter. I think that we were informed that they didn't believe they were in a position to have a further report prepared by tomorrow morning, but were considering whether they could provide some articulation of the evidence in some outline form which was expected to be called in-chief.

PN1566

JUSTICE ROSS: All right.

PN1567

MS BURKE: Sorry, I should clarify, I assumed that Mr Dalton was on the line and we were - I can't see him, but the conversation I had with Mr Ternovski was that he said that they would be unlikely to be able to provide a statement tonight, and I asked if in those circumstances at least we could have an outline of the topics that Mr Dalton will be leading evidence from Mr Houston about, because the prejudice that Mr Gibian identified is quite acute, but again this is - - -

PN1568

JUSTICE ROSS: No, that's fine, Ms Burke.

PN1569

MS CROSSMAN: If I may, this is Ms Lauren Crossman, I'm instructing Mr Dalton in these proceedings, Mr Dalton is stuck in the lobby and hasn't been able to join the call as of yet.

PN1570

JUSTICE ROSS: All right. Well, it doesn't sound like there has been any resolution at the moment, Ms Crossman, and so the parties can continue to discuss this once the witness evidence is concluded this afternoon.

PN1571

MS CROSSMAN: (Indistinct).

PN1572

JUSTICE ROSS: Yes. But in any event you haven't reached an agreement about how you're going to deal with it, or have you?

PN1573

MR DALTON: Is that a question directed to me, your Honour?

PN1574

JUSTICE ROSS: I am happy to take anyone's reply at this stage, Mr Dalton.

PN1575

MR DALTON: I am sorry. First of all can I apologise, I clicked into the wrong notice of listing, (indistinct) 30 July, so I apologise for that error. To update you in relation to Mr Houston I have had an opportunity to speak to him. He is able to prepare a report, but it won't be possible for him to prepare a report in time for him to give his evidence tomorrow. So, your Honour, it really comes down to when - sorry, and he's available on Monday or Tuesday for the purposes of giving evidence.

PN1576

JUSTICE ROSS: Well, when would he be able to provide his report?

PN1577

MR DALTON: By Monday morning 9 am.

PN1578

JUSTICE ROSS: We are not going to have him examined, cross-examined at 10 am, are we?

PN1579

MR DALTON: No. Your Honour, it could be late morning or early afternoon on Monday.

PN1580

JUSTICE ROSS: No.

PN1581

MR DALTON: No? Okay.

PN1582

JUSTICE ROSS: Just bear with me for a moment. Well, I will have to discuss it with my colleagues about an available time.

PN1583

MR DALTON: Your Honour, is it possible to work back from that to have the hearing start on Monday morning and for us to provide if possible a witness statement, a further report on Friday evening?

PN1584

JUSTICE ROSS: If the further report was provided this Friday evening then I wouldn't see any impediment to - Ms Burke and Mr Gibian no doubt might have another view, but in the end you will still have a period of time over the weekend to view it, and we could look at hearing his evidence at 9.30 on Monday, with the movement of your other matter, Mr Gibian, because the Vice President is on that one too. Let's look at that as a proposition, and perhaps Mr Gibian and Ms Burke could give some thought to that, and we will return to it once we finish with the lay witness evidence this afternoon. All right?

PN1585

MR DALTON: Yes, your Honour. Could I also update you in relation to the tender bundle for Dr Howe?

PN1586

JUSTICE ROSS: Yes.

PN1587

MR DALTON: So I understand that we have reached an agreement with the UWU that we would tender that bundle with the exception of the press release. So that just covers off on what could be tendered on that point, excising the issue of the press release. But in agreeing to do that we intend to compile a complete set of public pronouncements in relation to the agricultural visa, and we will take that up with Ms Burke obviously before we seek to file and serve that material.

PN1588

JUSTICE ROSS: Just to be clear the documents referred to in Dr Howe's cross-examination, if you can get your instructor just to send through the list of those. You mentioned there were two articles at the appendices. You don't need to do it immediately, but I can indicate that we have marked that material as exhibit AFPA.2, and if you can just confirm what's in it, and I understand that there will be some further discussion about - - -

PN1589

MR DALTON: Yes, it's appendices A, B - pardon me, it's appendices - no, it is appendices A, B and C to the durable future report, and then there's two articles.

PN1590

JUSTICE ROSS: Yes.

PN1591

MR DALTON: We can give you a list if that's convenient.

PN1592

JUSTICE ROSS: That will be great, thank you. All right.

PN1593

MS BURKE: I am sorry, your Honour, can I just ask Mr Dalton to confirm that the bundle of press releases, which I foreshadowed I will object to, when that will be provided? Sorry, that was a question for Mr Dalton via your Honour.

PN1594

MR DALTON: Noted, and we will deal with that.

PN1595

MR GIBIAN: We would also like to be included in that if that's not pursued.

PN1596

JUSTICE ROSS: I think the short answer, Ms Burke, is he's not going to tell you when he's going to provide them, but he will provide them as soon as he gets them. There is one other matter, we have received some correspondence from the representatives of 88 Days and Counting. Is one of those representatives online?

PN1597

THE ASSOCIATE: I don't believe so, your Honour.

PN1598

JUSTICE ROSS: All right. They have indicated that they want to cross-examine Mr King and they have only just received the notice to produce material. My associate drew their attention to the fact that Mr King has already been cross-examined, certainly by the AWU, and they wouldn't be permitted to cross-examine on the same material. They have basically put that, well they have only just got the material and they want Mr King moved. We will deal with that at the commencement tomorrow. I can indicate that perhaps other than shifting Mr King to a definite time of 12.30 after all the other witnesses have been done I wasn't inclined to indulge 88 Days some further - to any greater extent, but I haven't heard what they want to say about it, but bearing in mind that no doubt the union will cross-examine on that material and they will go first I am not sure where the necessity arises. I think that correspondence has been sent to all of you. I don't understand why they are not here, but we will inform them to be here at 9.30 tomorrow and we can deal with that as a preliminary matter. Okay. All right, let's - nothing else? Let's go to the first witness, Ms Reardon.

PN1599

THE ASSOCIATE: Can you please state your full name to the Commission.

PN1600

MS REARDON: Anne Kathleen Reardon.

<ANNE KATHLEEN REARDON, AFFIRMED [2.12 PM]

EXAMINATION-IN-CHIEF BY MR DONAGHEY [2.12 PM]

PN1601

MR DONAGHEY: Ms Reardon, can you hear me clearly?‑‑‑Yes, I can.

PN1602

Ms Reardon, you've made a witness statement in this proceeding. Is that correct?‑‑‑I have, yes.

PN1603

And that witness statement consists of five pages and 36 paragraphs?‑‑‑Yes.

PN1604

And has one exhibit to it as well?‑‑‑Yes.

PN1605

For those attending, it is Court Book 2773.

PN1606

Is your witness statement true and correct to the best of your knowledge?‑‑‑It is.

PN1607

I tender that witness statement, your Honour.

PN1608

JUSTICE ROSS: Thank you. I will mark the witness statement as exhibit NFF1.

EXHIBIT #NFF1 WITNESS STATEMENT OF ANNE REARDON

PN1609

MR DONAGHEY: If it pleases. I won't be seeking leave to ask any further questions of this witness.

*** ANNE KATHLEEN REARDON XN MR DONAGHEY

PN1610

Ms Reardon, could you remain on the line. I think you will be asked some cross‑examination questions?‑‑‑That's fine.

CROSS-EXAMINATION BY MR GIBIAN [2.14 PM]

PN1611

MR GIBIAN: Ms Reardon, can you see and hear me adequately?‑‑‑No - yes, I can now. Thank you.

PN1612

At least hear me. You probably don't have to see me, but so long as you can hear me?‑‑‑I can, yes.

PN1613

You have a copy of your statement in front of you, do you?‑‑‑Yes, I do.

PN1614

We're at an understanding that the crops that you grow are cherries and applies?‑‑‑Yes.

PN1615

And you've said - this is in paragraph 10 of your statement - that in total at least you engage roughly 72 casuals over the harvest season?‑‑‑Yes, that's correct.

PN1616

Between December, I think, and March, April, is what you say?‑‑‑Yes.

PN1617

And 20 at any time, so with the changing of population over that period. Is that right?‑‑‑Yes, that's right.

PN1618

And as I understand it, up until last season - I take it from December last year to March, April of this year, you mainly used - you used virtually entirely backpackers?‑‑‑That's the usual situation every year, yes.

PN1619

And with those backpackers, you make, do you, the type of piece work agreement which you've attached to your statement as annexure A?‑‑‑Yes, that's correct. For most of the picking, pruning and thinning, et cetera, are paid by the hour.

PN1620

Sorry, could you repeat that?‑‑‑Pruning and thinning and other odd orchard jobs are paid by the hour, but picking is piece work.

PN1621

I understand. And so that was the arrangement up until last season. You say in paragraph 14 that in the last season, for obvious reasons, you had to rely on labour hire providers. Is that right?‑‑‑Yes.

*** ANNE KATHLEEN REARDON XXN MR GIBIAN

PN1622

Did you rely entirely on labour hire? That is, were all the work done by labour hire staff in the last season?‑‑‑No. The cherry picking, we didn't require labour hire at all; and for the apples we had about half and half, some were labour hire, some were locals, and a couple were backpackers.

PN1623

So with the cherries there was still enough backpackers around to ‑ ‑ ‑ ?‑‑‑Backpackers and students. Because that happens in January, we get a lot of university students and high school students who want to come along and do it, and so we don't usually have any trouble then getting workers.

PN1624

So so far as last season was concerned, there was some labour hire, but it was still generally either backpackers or students or some other ‑ ‑ ‑ ?‑‑‑It was, yes.

PN1625

I think that we asked you to provide some records in relation to pay and the like, and I don't think we've received anything from you. Do you have such records, that is payslips and the like?‑‑‑Payslips, yes, I have got those. Yes, I was told I didn't need to worry about that.

PN1626

Who told you that?‑‑‑I thought it was Ben or someone.

PN1627

Can I then - in terms of how the work is done, then, so you have around - during the harvest season you have around 20 of the casual workers at any one time?‑‑‑Yes.

PN1628

And I think what you've said is that they go out as a team at the same time and are supervised by one of your permanent staff?‑‑‑Yes, usually, or someone who has had experience with us in the cherries or apples before.

PN1629

So what you say in paragraph 23 of your statement is that the pickers are supervised by one of the permanent staff, but if there's more than 22, you might divide them into two teams and there would be a supervising - a returning worker undertaking the supervising task. Is that right?‑‑‑Yes.

PN1630

And so far as the supervision is concerned, the permanent staff member who's supervising the pickers would be checking I think you say both the rate of picking to see that the picking is being done at an adequate rate?‑‑‑Yes, but their job is more to make sure the fruit is not damaged and the workers are taking care.

*** ANNE KATHLEEN REARDON XXN MR GIBIAN

PN1631

Yes, all right, I was coming to that. So they do two things. I think you do say that the supervisors will monitor the rate of picking?‑‑‑Yes.

PN1632

In addition to that, as you've pointed out, it's not only the rate that is important, it's no good if the fruit is picked and is damaged in the process. Correct?‑‑‑That's right, yes.

PN1633

And so the supervisor is also supervising the pickers' work to ensure that they are using appropriate techniques and not damaging the fruit in the course of the picking process?‑‑‑Yes.

PN1634

So what is important to you is not only the speed with which the picking task is done, but also that it is done with appropriate care so as to not to damage the fruit and reduce its value?‑‑‑Yes, absolutely.

PN1635

That is you don't want workers to pick as fast as is physically possible if it's at the expense of damaging the fruit. Correct?‑‑‑No, that's correct.

PN1636

Can I then ask you about the way in which you set the piece rates. I think you distinguish between the method that's used for apples and for cherries. Firstly so far as apples is concerned, you say that you start with the guidance provided by Primary Employers Tasmania. Is that right?‑‑‑Yes.

PN1637

And then you - you deal with this at paragraph 24 of your statement if you need to look at it. And then you say in (c) of paragraph 24 that based on that guidance and the conditions at the farm, that you determined the average competent worker would earn an hourly rate in excess of $27.78 if they were paid $47 per bin. Do you see that ‑ ‑ ‑ ?‑‑‑Yes.

PN1638

So that was what was determined for the most recent season. Is that right?‑‑‑That was for the most recent season, yes.

PN1639

So I ‑ ‑ ‑ ?‑‑‑Prior to that, we've actually stuck a little bit closer to the Primary Employers guidelines, but we changed - I think I mentioned there somewhere, we had a block with taller trees, which obviously take longer to pick, so we put the price up a bit.

PN1640

Can I take it one step at a time then. In paragraph 24(c), you're referring to a determination that was made for the last - the most recent season, I take it?‑‑‑Yes.

PN1641

In December of last year, or the start of the season; is that correct?‑‑‑March of this year. We started picking the apples in March.

*** ANNE KATHLEEN REARDON XXN MR GIBIAN

PN1642

Anyway, at the start of the period, you started picking the apples; is that right?‑‑‑Yes, yes.

PN1643

How long is the picking period for?‑‑‑It lasted about, I reckon, 14 days this last year.

PN1644

So, at the start or before the start of that period, you determined that $47 amount?‑‑‑Yes.

PN1645

And that, at least so far as the conditions on your farm were concerned, you needed it to be in excess of the rate that had been recommended by the Primary Employers Tasmania?‑‑‑Yes, we did, because we thought that the picking was a little bit more difficult.

PN1646

I understand. And then so far as the cherries are concerned, the method that you used, and this is described in paragraph 26, is you directed a worker to do an hour's sample work; is that what happened?‑‑‑Yes, that's right. We also discussed with other growers, you know, what they might be doing, but there doesn't seem to be any official document which tells you about the cherries.

PN1647

All right. Anyway, what you say you did in (a) of paragraph 26 at the top of the fourth page of your statement was that you directed a particular worker to pick cherries for an hour and then extrapolated from that; is that right?‑‑‑That's right, we did, yes.

PN1648

That was done at the start, was it, of the cherry picking season?‑‑‑Just before the workers came, yes.

PN1649

Who was that worker?‑‑‑Last year it was - oh, I just can't think - Russell Menzies.

PN1650

Is he an individual who has picked for you before?‑‑‑He had picked for us before, yes.

PN1651

Over a number of years or?‑‑‑No, he's only been there two years.

PN1652

That is he did the previous season and this season?‑‑‑Yes, yes.

PN1653

You then calculated the rate from that?‑‑‑We did, yes.

*** ANNE KATHLEEN REARDON XXN MR GIBIAN

PN1654

I think you mentioned that was before the start, that is, before the workers arrived?‑‑‑Yes.

PN1655

You then set the rate for the season and included it in the piece worker agreements that you provided to the workers when they turned up?‑‑‑Yes, that's right.

PN1656

All right. Can I then just go to the piece worker agreement, so annexure A; do you have that?‑‑‑Yes.

PN1657

This is an example, is it, of the form of agreement you used for the 2020/2021 season?‑‑‑Yes.

PN1658

It had been the same for some period of time or is it - - -?‑‑‑Yes, quite a few years, I think, yes.

PN1659

All right?‑‑‑We originally got this from the Primary Employers Tasmania also.

PN1660

This is for apple picking, but I assume some also have cherry picking?‑‑‑That's right, yes.

PN1661

And you have different people doing the cherries to the apples?‑‑‑Yes. Some come back, it depends.

PN1662

But, in any event, would sign a new agreement or you would give them a new agreement at that time; is that right?‑‑‑Yes, yes.

PN1663

I just want to ask you about one matter about that. You see the rate of pay is listed as $47 per bin for the apples?‑‑‑Yes.

PN1664

You see underneath that reference to $47 it says, "Fruit must meet the supervisor's requirements." Did you see that?‑‑‑Yes.

*** ANNE KATHLEEN REARDON XXN MR GIBIAN

PN1665

Is it the case that if the fruit doesn't meet the supervisor's requirements, then the worker isn't paid for the bin?‑‑‑That's never happened, no. What usually happens is if they're not meeting the supervisor's standards, they will be given a warning and they will be asked - shown what they have done wrong and how to - how to fix that and then we let them go on picking and if it's still not right, we'll probably ask them to leave, but they will still be paid for the bin that they have picked, whether they are staying on with us or not.

PN1666

Okay, I understand. So you deal with it by terminating them, in short form, not retaining them?‑‑‑Yes.

PN1667

I understand. Thank you, Ms Reardon?‑‑‑Thank you. Do I mute again now or what happens?

PN1668

JUSTICE ROSS: No, if they just want there for a moment, Ms Reardon, we won't be long?‑‑‑Okay.

PN1669

Ms Burke, do you have any questions?

PN1670

MS BURKE: No, I don't, thank you.

PN1671

JUSTICE ROSS: Mr Donaghey, anything in re-examination?

PN1672

MR DONAGHEY: I have what I think will end up being one or two in re-examination.

RE-EXAMINATION BY MR DONAGHEY [2.27 PM]

PN1673

Ms Reardon, you were taken by my learned friend to paragraph 24(c) of your statement. Do you still have that in front of you somewhere?‑‑‑Yes.

PN1674

You were asked a question and you gave an answer in respect of a group of - a block with taller trees which take longer to pick. Did you mean apples by that or did you mean cherries?‑‑‑Oh, apples, sorry.

PN1675

I understand?‑‑‑Yes.

PN1676

You stated in response to a question from Mr Gibian that those taller trees caused you to put up the piece rate in respect of those taller trees?‑‑‑Yes.

PN1677

Do you happen to recall how much you put those up?‑‑‑Well, we would have paid $43 a bin as stated by the Horticultural Award.

*** ANNE KATHLEEN REARDON RXN MR DONAGHEY

PN1678

Yes?‑‑‑But we put it up to 47 because of the different trees and, you know, they're just too - they have use ladders and all that sort of thing, which slows them down considerably.

PN1679

I understand. Nothing further, your Honour.

PN1680

JUSTICE ROSS: Thank you. Thank you for your evidence, Ms Reardon, you are excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [2.29 PM]

PN1681

We will call the next witness, Mr Kelly.

PN1682

THE ASSOCIATE: Can you please state your full name for the Commission.

PN1683

MR KELLY: Anthony Thomas Kelly.

<ANTHONY THOMAS KELLY, AFFIRMED [2.30 PM]

EXAMINATION-IN-CHIEF BY MR DONAGHEY [2.30 PM]

PN1684

Mr Kelly, could you please state your full name for the transcript?‑‑‑Anthony Thomas Kelly.

PN1685

You are the chief financial officer of N&A Group; is that correct?‑‑‑Yes, that's correct. Technically, N&A Fruit Distributors Pty Ltd.

PN1686

I understand. You have made a witness statement in this proceeding?‑‑‑Correct.

PN1687

That witness statement consists of five pages and 33 paragraphs?‑‑‑That sounds correct, yes.

PN1688

And it has one exhibit to it?‑‑‑Exhibit A, I believe, yes.

PN1689

For those following on the court book, it is CB2779. Are there any corrections you wish to make to that statement, Mr Kelly?‑‑‑No, I think the statement is correct.

*** ANTHONY THOMAS KELLY XN MR DONAGHEY

PN1690

Do you say then that it's true and correct to the best of your knowledge?‑‑‑Yes.

PN1691

I tender that statement, your Honour.

PN1692

JUSTICE ROSS: I will mark that exhibit NFF2.

EXHIBIT #NFF2 WITNESS STATEMENT OF ANTHONY KELLY

PN1693

MR DONAGHEY: I'm not seeking leave in respect of this witness, your Honour, so I won't be asking any questions.

PN1694

Mr Kelly, can you wait to be cross-examined, please?‑‑‑Yes, sure.

CROSS-EXAMINATION BY MR GIBIAN [2.31 PM]

PN1695

MR GIBIAN: Thank you, your Honour. Mr Kelly, can you see and hear me adequately?‑‑‑Yes, I can.

PN1696

You're the chief financial officer of - sorry, I missed the permutation of N&A that you referred to, the company?‑‑‑Yes.

PN1697

Correct?‑‑‑Correct.

PN1698

Do you have direct involvement on a day to day basis with managing the staff on the farms?‑‑‑No.

PN1699

Do you visit the farms from time to time at least?‑‑‑Yes, you know, depending on COVID. Sometimes three or four times a year, sometimes - you know, at the moment not so often.

PN1700

So leaving COVID to one side, and hoping that this experience passes at some point in time, generally three or four times a year. Is that ‑ ‑ ‑ ?‑‑‑Correct, yes.

PN1701

And so do you have any - you don't have in that work direct interactions with engaging of the staff and the like to undertake the harvesting work?‑‑‑No. No, not directly, no.

*** ANTHONY THOMAS KELLY XXN MR GIBIAN

PN1702

That's dealt with by managers on site, I take it?‑‑‑Correct. Administrators and farm managers, correct.

PN1703

Can I just ask your understanding, then. If you just go to your statement at - you describe the types of employment, employees that the company has from paragraph 9 onwards. Do you see that?‑‑‑Yes.

PN1704

And there are some ongoing employees throughout the year. At paragraph 11, so far as the harvest period is concerned, you employ both direct casuals and labour hire for the picking, the harvesting work?‑‑‑Not just harvesting, pruning and other peak periods.

PN1705

Are you able to say in what proportion, that is how many are direct - what proportion are directly employed and what are labour hire in your - in general terms, at least?‑‑‑It does vary, but I would say we've got at those peak times 40 per cent labour hire, 60 per cent employees.

PN1706

And in that answer, if it wasn't clear, I was intending to ask you about the seasonal workers rather than those that are there on a more long-term basis?‑‑‑Yes, that's - yes, so if you took our kind of our long-term casual employees out, that fluctuating labour would be, yes, more 60:40 probably.

PN1707

More 60:40 in favour of labour hire?‑‑‑Yes.

PN1708

I understand. In that respect, so far as the directly hired employees are concerned for the picking work, you generally get them on piece rates. Is that right?‑‑‑Yes.

PN1709

There's some I will come to that are in a different category, but so far as those that are working on piece rates are concerned, I take it the company gets them to sign a piece rate agreement. Is that right?‑‑‑When we sign them on as an employee or a contractor, they - either on behalf of the contractor on behalf of us - sign a general piece rate agreement.

PN1710

So when they - if I can just stick with the employees to start with. When an employee turns up at the farm to - and I take it you don't deal with this directly, but your understanding is that they will be given a piece work agreement to sign. Is that right?‑‑‑Yes.

PN1711

Before they start work?‑‑‑Yes. It's part of their on-boarding process.

*** ANTHONY THOMAS KELLY XXN MR GIBIAN

PN1712

So far as labour hire staff are concerned, they are employed by the labour hire company rather than directly by N&A?‑‑‑Correct.

PN1713

Did I understand you to say that nonetheless N&A arranges for them to sign a piece work agreement. Is that right?‑‑‑Correct.

PN1714

In the same terms?‑‑‑Yes.

PN1715

So far as the payment of the labour hire workers are concerned, I take it they are paid by the labour hire rather than by N&A?‑‑‑Correct.

PN1716

That is I take it you pay an amount of money to the labour hire company which reflects the piece work rate plus some kind of loading?‑‑‑Exactly, yes.

PN1717

And whatever payments is between the - the labour hire worker receives is between the labour hire company and the worker?‑‑‑That is correct, yes.

PN1718

Some of the workers aren't on piece rates who are doing the picking. An example is that you describe - and this is in paragraph 16 and 17 - introducing in recent times motorised platforms?‑‑‑Correct.

PN1719

And those workers are not on piece rates, as I understand it, for the reasons that you explain?‑‑‑Yes.

PN1720

Has that been a - I understand you say that those can't be used, I assume for practical reasons, at all parts of the farm. That's correct?‑‑‑Yes.

PN1721

But so far as they are able to be used, has that been a successful initiative so far as the company is concerned?‑‑‑Not successful from a cost management point of view, but from a risk reduction point of view, I would say.

PN1722

Can you explain that answer to me?‑‑‑It gives us a broader pool ‑ ‑ ‑

PN1723

‑ ‑ ‑ more specific. What did you mean my risk reduction? In what way does it assist in risk reduction?‑‑‑It's probably a safer way to pick, rather than have people climbing up and down ladders.

PN1724

I understand?‑‑‑So you need less skilled employee to do it effectively.

*** ANTHONY THOMAS KELLY XXN MR GIBIAN

PN1725

Sorry, you need a less ‑ ‑ ‑ ?‑‑‑A less skilled or a less physically abled employee.

PN1726

I understand. Can I then ask you about the setting of piece rates. You describe that from paragraph 18 onwards in your statement. I take it again this is not something you are directly involved in. is that right?‑‑‑No. I only find out in hindsight.

PN1727

So this is something that - what you've said from paragraph 18 onwards is essentially your understanding of how it works. Is that right?‑‑‑Yes, correct.

PN1728

And as you understand it at least, the pick rate is - the rate to be paid is set on any given day in consultation with senior supervisors. Is that right?‑‑‑Correct, yes. Each farm supervisor.

PN1729

And it needs to take into account variables that may affect the rate at which the fruit can be picked on the particular day, and I think you've identified the nature of the crop that's being used, the terrain of the particular area that's being picked, and the conditions. I take it you mean including weather conditions?‑‑‑Yes, and age of tree. Yes, there are lots of variables.

PN1730

That is if a tree is bigger and more sparsely fruited, it would take longer and the picking would be slower?‑‑‑Younger trees won't have as much fruit on them, yes.

PN1731

And as you understand it at least, all of those matters are considered by the supervisors and a rate is set for the work that's planned for a particular day?‑‑‑Correct.

PN1732

All right. And I think you say at paragraph 20, is that you are constantly monitoring the work rate and vary the piece rates depending on the type of matters that we have just mentioned?‑‑‑Yes.

PN1733

Does that include varying within the day? That is if things turn out a bit differently than was expected?‑‑‑Look, I think they do ‑ ‑ ‑

PN1734

‑ ‑ ‑ you can say so?‑‑‑At the end of the day I think the supervisor reviews in his own head to make sure that it's working, it's a fair rate. If there has not been a problem during the day.

*** ANTHONY THOMAS KELLY XXN MR GIBIAN

PN1735

That is as you understand it, at least, at the end of the day there's a - during or at the end of the day there's a recalibration or assessment which might result in a change in the rate that's applied to the work that has been done?‑‑‑Correct, because it won't be until the end of the day he has any kind of count on the actual productivity over a decent sized sample.

PN1736

All right. So the determination actually might be made at the end of the day rather than at the start of the day. Is that ‑ ‑ ‑ ?‑‑‑It would be - I would say it's checked at the end of the day.

PN1737

All right. So there will be a rate determined at the start of the day, but it's checked throughout, and at the end of the day it may be changed?‑‑‑Correct.

PN1738

All right. Are there any records of that process or is that just something the supervisor does in their head and in consultation with - - -?‑‑‑Yes. I'm not sure if they record in a notebook or something, I'm not sure about that.

PN1739

You don't know one way or the other?‑‑‑No.

PN1740

All right. Can I then ask about the document that's attachment A to your statement?‑‑‑Yes.

PN1741

Sorry, if I could just have a moment. So this is you describe as a wages spreadsheet for the piece rate workers from 28 April to 3 May of this year?‑‑‑Yes.

PN1742

And can I just make sure I have understood it correctly. You have separated them out into days, and even within the day there's different groupings. Are they groups who were working in different parts of the farm or different farms?‑‑‑Correct.

PN1743

Sorry, which one is it, different farms or different parts of the farm?‑‑‑Well, both.

PN1744

Both?‑‑‑Yes. There are multiple farms shown here and within each farm there are multiple parts of the farm.

PN1745

So for 28 April there seems to be two groupings; the first 15 or so before the break, and then there's another ten or 12, do you see that?‑‑‑Yes, I can.

PN1746

One is the block is AR01 or AR10RL. Do you see that?‑‑‑Yes.

*** ANTHONY THOMAS KELLY XXN MR GIBIAN

PN1747

So that would be the same farm but different parts of the farm, is that right?‑‑‑AR is the farm (indistinct), and the 01 is a part of that farm, and 10 is a different part of that same farm.

PN1748

And 15 another part again?‑‑‑Correct.

PN1749

All right. So far as those that were in AR01RL or that part of that - do you know which farm that is?‑‑‑That's called a blossom - a blossom orchard.

PN1750

So a blossom nursery 01RL - - -?‑‑‑Yes.

PN1751

- - - a rate had been set for that day of $45.00 per bin, is that right?‑‑‑Correct, yes.

PN1752

And there is then a calculation. So the first person that listed two and a half bins and for that they were to be paid $112.50?‑‑‑Yes.

PN1753

But it's over in the - it's a bit of the paler blue column, the second last of them with the numbers is piece actual $112.50?‑‑‑Yes, two and a half times 45. Yes, that's right.

PN1754

All right. And you have compared that in this instance with the hourly rate plus 15 per cent. That's how we read this document?‑‑‑Yes, that's - that's right.

PN1755

So the piece target, which is the column before the piece actual, is what you understood to be for the three hours work the amount that would be earned by an hourly rate plus 15 per cent, is that right?‑‑‑The piece - sorry, which column?

PN1756

Sorry, do you see there's a bolded column "Round hours", do you see that?‑‑‑Yes. Sorry, yes, round hours, okay, yes. So that's - that's the timeframe that they worked.

PN1757

And then there's piece target and piece actual. Do you see that?‑‑‑Yes. Okay, it's very greyed out on what I'm looking at.

PN1758

It's quite far online, but I can read it if I magnify it a little bit. All right. So I take it from that that to develop these records you have records of the hours of work of the particular employees that are maintained?‑‑‑Yes, that's right. The farm supervisor keys those hours into our payroll data collection system.

*** ANTHONY THOMAS KELLY XXN MR GIBIAN

PN1759

And also keys in I assume the amount of piece work that has been done by the particular workers?‑‑‑Yes, correct, each farm supervisor is responsible for his own data entry.

PN1760

All right. The next column then is - there's a piece variance and a piece result which is above target or below target. Do you see that?‑‑‑Yes, I'm looking at it on my computer so I can see it a little better, yes.

PN1761

All right. I understand, yes. I think they're in different colours. The green is above target, the red below target?‑‑‑Correct.

PN1762

Low target are below the hourly rate plus 15 per cent, is that right?‑‑‑Yes, I think that's correct, yes.

PN1763

Now, I don't think you prepared these documents yourself, and I am not being critical in that respect, but they're documents prepared by others, is that right?‑‑‑That is correct, yes.

PN1764

I may be don't have to take them to you in too much detail, but you can tell me if you need to be reminded. Some documents were produced to us of this same type from an earlier period, I think from March rather than April, in the last day or so. You're aware of that?‑‑‑Yes, correct.

PN1765

And you had some involvement in that process?‑‑‑Yes.

PN1766

And they involve some emails from someone called Alison Cooper who I think has some kind of role with Ardrossan Apples, is that right?‑‑‑Yes, that's correct.

PN1767

What's her position or role?‑‑‑She's our office administrator on the farm.

PN1768

I understand. Did you have access to a copy of those documents?‑‑‑Yes, I do.

PN1769

I think it's like 160 pages long, but I really only need to take you to the first page of it conveniently?‑‑‑Yes.

PN1770

You will see that there's an email - if you have the first page of that bundle - - -?‑‑‑Yes.

*** ANTHONY THOMAS KELLY XXN MR GIBIAN

PN1771

- - - there's an email from Alison Cooper of 17 March 2021. Do you see that?‑‑‑Yes, I've got that.

PN1772

Addressed to yourself and some other people?‑‑‑Yes.

PN1773

I take it those are all other employees within the company?‑‑‑Yes, that looks right, yes.

PN1774

All right. She provides you with attaching a spreadsheet of this type and providing some explanation. I just wanted to ask, the last thing she said in her email is, "If you would like to receive it I will send this information out after the payroll each week." Do you see that?‑‑‑Yes.

PN1775

So I take it at least as of March of this year this was a new process that was being undertaken, that is collating this document in this form?‑‑‑Yes, correct. That is correct, yes.

PN1776

All right. And what prompted you to start doing that form of analysis?‑‑‑Our gradual progression with a farming culture that is slow in uptake is why that's probably only just started. The heightened awareness and shortage of labour generally is something that we felt we needed to look at more closely and do a better job on.

PN1777

So in terms of what you had to do a better job on, that is of monitoring the rates of pay for the piece workers to make sure that they were adequate, is that - - -?‑‑‑Yes, ensuring that we were meeting minimums, yes.

PN1778

All right. And you referred to a culture that was slow in changing. Is that something you have been trying to implement yourself for some period of time, but have only - I don't want to use a metaphor of fruits of your labour, but the fruits of your labour are only coming to fruition now, is that a fair reflection of what you were intending to convey?‑‑‑Getting them to uptake new systems and getting guys who have worked in orchards with cracked fingers to type things into tablets is difficult.

PN1779

I understand. Can I just have a moment. Thank you, Mr Kelly, nothing further.

PN1780

JUSTICE ROSS: Any questions, Ms Burke?

*** ANTHONY THOMAS KELLY XXN MR GIBIAN

PN1781

MS BURKE: No, thank you.

PN1782

JUSTICE ROSS: Mr Donaghey, re-examination?

PN1783

MR DONAGHEY: No re-examination for this witness, your Honour.

PN1784

JUSTICE ROSS: All right. Thank you for your evidence, Mr Kelly, you are excused.

<THE WITNESS WITHDREW [2.51 PM]

PN1785

We will call the next witness, Mr Rogers.

PN1786

MR GIBIAN: Your Honour, can I just tender the first page of the bundle of produced materials? We can provide it separately if that would be of more convenience.

PN1787

JUSTICE ROSS: Certainly if you can provide it separately, but I will mark it now as exhibit AWU18.

EXHIBIT #AWU18 FIRST PAGE OF THE BUNDLE OF PRODUCED MATERIAL

PN1788

THE ASSOCIATE: The next witness on the list was Mr Ben Rogers. He appears to have dropped out of the lobby. We can proceed to the next witness or wait for Ben to rejoin, if you prefer.

PN1789

JUSTICE ROSS: Can you get in touch with him, Mr Donaghey?

PN1790

MR DONAGHEY: I will indeed, your Honour. I'm afraid his mobile has run out, your Honour, but I have sent him an email as well and not had a response, so I think it might be worth moving on to the next witness.

PN1791

JUSTICE ROSS: Yes.

PN1792

MR DONAGHEY: Hold on a moment, sir, he's popped up now as a dialogue box on my screen.

*** ANTHONY THOMAS KELLY XXN MR GIBIAN

PN1793

JUSTICE ROSS: Yes, he seems to have come through on ours now.

PN1794

THE ASSOCIATE: Can you please state your full name for the Commission.

PN1795

MR ROGERS: It's Benjamin William Rogers.

<BENJAMIN WILLIAM ROGERS, AFFIRMED [2.55 PM]

EXAMINATION-IN-CHIEF BY MR DONAGHEY [2.55 PM]

PN1796

JUSTICE ROSS: Mr Donaghey.

PN1797

MR DONAGHEY: Yes, thank you, your Honour.

PN1798

Mr Rogers, your full name is Benjamin William Rogers?‑‑‑That's correct.

PN1799

You have made a witness statement in this case?‑‑‑I have.

PN1800

Do you have a copy of that in front of you?‑‑‑I do.

PN1801

Does it consist of four pages and 24 paragraphs?‑‑‑It does.

PN1802

Do you have six exhibits to that marked A to F as well?‑‑‑I do.

PN1803

For those looking on the court book, which seems to have stopped working for me, CB2787. Mr Rogers, do you have any corrections to your witness statement that you wish to make?‑‑‑At paragraph 14, there's a typo. The word "after" should be deleted.

PN1804

At the end of that paragraph, Mr Rogers?‑‑‑That's correct.

PN1805

Just delete that?‑‑‑Correct.

PN1806

Other than that, is your witness statement true and correct to the best of your knowledge?‑‑‑It is.

*** BENJAMIN WILLIAM ROGERS XN MR DONAGHEY

PN1807

I tender that, your Honour.

PN1808

JUSTICE ROSS: I will mark Mr Rogers' statement as exhibit NFF3.

EXHIBIT #NFF3 WITNESS STATEMENT OF BENJAMIN WILLIAM ROGERS

PN1809

MR DONAGHEY: Thank you. No further questions for this witness, your Honour.

PN1810

JUSTICE ROSS: Thank you. Mr Gibian?

PN1811

MR GIBIAN: Thank you, your Honour. Just before I commence the cross-examination, your Honour did ask a question of Mr Donaghey about the status or the basis up on which the survey referred to from paragraph 21 in the statement is to be relied upon. I don't know whether there has been an opportunity to have an answer with respect to that question?

PN1812

MR DONAGHEY: Yes, I have asked the witness. I wonder if it might assist your Honour more if I go back on what I've just said about examination-in-chief and ask some questions in-chief that are targeted to elicit the response, or if your Honour wishes to ask the questions yourself?

PN1813

JUSTICE ROSS: No, no. I'm not sure it's a question for the witness in the sense that it's really a question for those instructing you as to what reliance they are placing on the survey evidence.

PN1814

MR DONAGHEY: I think you bringing it to our attention, your Honour, means it will necessarily feature in submissions, and if I anticipate what Mr Gibian's instructors have asked, it will probably feature in cross as well. I'll take it up that way, if your Honour pleases.

PN1815

JUSTICE ROSS: Did we get any information about how many NFF members in horticulture would have received the survey request as opposed to how many filled it in?

PN1816

MR DONAGHEY: No, I don't know the answer to that yet, but enquiries have been made and I anticipate I will get that, if not by the end of today, then shortly afterwards. Generally speaking, my experience of industrial organisations is they know how many members they have, but other segments are slightly harder to put a hand on at any particular point in time, so that enquiry has been made.

*** BENJAMIN WILLIAM ROGERS XN MR DONAGHEY

PN1817

JUSTICE ROSS: All right. Thank you, Mr Gibian.

CROSS-EXAMINATION BY MR GIBIAN [2.58 PM]

PN1818

Thank you, Mr Rogers. Can you see and hear me adequately?‑‑‑I can.

PN1819

All right. The AWU filed this application in the Fair Work Commission towards the end of last year, before Christmas; you are aware of that?‑‑‑I am.

PN1820

I take it you became aware of it at that time?‑‑‑I did.

PN1821

And saw and reviewed the application?‑‑‑I did.

PN1822

Am I right in understanding that the Farmers' Federation decided, at that time or soon after, that it would oppose the application of the AWU?‑‑‑Yes, at that time or shortly after.

PN1823

Was some formal decision made to that effect?‑‑‑There would have been consultation with our members and particularly with the National Farmers' Federation Horticulture Council about the response we wanted to make. So, whether or not it was weeks or days later, I couldn't say with any precision, but shortly thereafter.

PN1824

All right. At least by some time early this year, a clear decision had been made that the Farmers' Federation was proposing to oppose the application?‑‑‑Yes.

PN1825

And has been campaigning on that basis since that time?‑‑‑I'm not sure what you mean by "campaigning", but, generally speaking, we are opposing the application.

PN1826

Both in the Commission, but also making public statements in relation to the subject of the application; correct?‑‑‑Yes.

PN1827

And liaising with its members, at least relevant members, in relation to the application?‑‑‑I feel I should clarify that. The NFF's members are not farmers. We don't have direct membership, we're a federation, so our members are farming bodies, state farming bodies and commodity groups. So, in terms of liaising with our members, that's who I would have been talking to is those groups as opposed to farmers directly for the most part.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

PN1828

All right, I understand. Parts of that campaigning were that the Farmers' Federation has coordinated at least two survey-type activities, as I understand it, and I think you had responsibility with respect to those, or some responsibility at least, with respect to those matters?‑‑‑I think there was just the one survey, unless I misunderstand your question.

PN1829

Maybe it emerged in different manifestations. You refer to a survey from paragraph 21 of your statement; correct?‑‑‑Correct.

PN1830

That was a survey that you describe as involving questions that were - answers to which were elicited through a program known as Survey Monkey?‑‑‑Correct.

PN1831

There are also attached to a number of the witness statements filed by the Farmer's Federation in the proceedings a hard copy form that has been, it appears, completed in hand by some employees?‑‑‑Yes, correct.

PN1832

And you had some involvement in that process as well?‑‑‑Yes, I did. In terms of preparing those questions, yes.

PN1833

Yes, all right. And was that a separate exercise to the Survey Monkey exercise that you referred to in your statement?‑‑‑Yes.

PN1834

Can I ask you about that first, then. I don't know whether you have - do you have access to the Court Book?‑‑‑Yes, I do.

PN1835

There are a number of examples, but I think the example - the first one came up for me, at least, was that attached to a statement of Jonathan Moss are some of those forms. They are annexure A to his statement, it's at page 3002 of the Court Book?‑‑‑Yes.

PN1836

And you will see that that is a document headed AWU Horticulture Award 2020, Application to Install Piece Rate Floor. Do you see that?‑‑‑I do.

PN1837

Employee Questions. And I think you see the fourth paragraph of that document there's an invitation to contact yourself?‑‑‑Yes.

PN1838

Did you draft this document?‑‑‑Yes, I did.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

PN1839

And it was sent out - was it sent out in PDF form or in hard copy form to members?‑‑‑My recollection is that it was emailed to members, yes.

PN1840

I think you made a distinction in relation to the NFF's members. Did you only provide it to the state-based organisations that are members of the NFF, or give it directly to farmers who are in turn members of those organisations?‑‑‑Principally to the state-based and commodity groups. I would have sent it out to, for example, some of the witnesses who provided statements in this matter; and there may have been another handful who contacted me directly and I said, "I'll send you a copy of this questionnaire." But principally it was for the state farming groups and the commodity councils.

PN1841

So far as you sent it to the state-based bodies, you did so with instructions that they were to distribute - or request at least, I'm sorry, maybe instructed is the wrong word - but request at least that they distribute to their members and encourage them to distribute to their employees?‑‑‑I think that's correct. I think I probably also said, "If anyone contact you in relation to this matter, this is a questionnaire that you could provide to them." That sort of thing.

PN1842

With the intention that they provided to their employees?‑‑‑Correct.

PN1843

Can I go then to the text of it. The first line of the employee - the introduction to it - to the questions says that:

PN1844

The Australian Workers Union has made application to the Fair Work Commission which will effectively eliminate piecework arrangements under the Horticulture Award.

PN1845

Do you see that?‑‑‑Yes.

PN1846

You know that it's not the application of the AWU to eliminate piece rates?‑‑‑I disagree.

PN1847

You know that the application does not seek to prohibit piece rates. Correct?‑‑‑Correct.

PN1848

Or to, other than exhort a minimum payment obligation, alter the piece rate provision. Correct?‑‑‑That's correct, but to my mind that's effectively eliminating piece rates.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

PN1849

At least you describe it to employees who are to have this - were being asked to complete this questionnaire - as the application would effectively eliminate piece work arrangements?‑‑‑Effectively eliminate piece work arrangements, correct.

PN1850

And if you go to the third paragraph you will see in the second sentence you say:

PN1851

Crucially it may result in the removal of the requirement for growers to set piece rates that enables piece work is to earn 50 per cent more than the minimum wage.

PN1852

Do you see that?‑‑‑I do.

PN1853

Again you know it's not part of the AWU's application to remove the requirement for piece rates to be set such as to enable - at least the average competent piece worker to earn 15 per cent more?‑‑‑I accept that, yes.

PN1854

And in those two respects you were making statements in this questionnaire descriptive of the application which were not true. Correct?‑‑‑No.

PN1855

All right?‑‑‑I didn't say that that was the application, I said that that may be the result, which is still to my mind a possibility.

PN1856

Could I just put to you that you were - that these questions were - sorry, the introduction to the questions was materially misleading as to what the AWU was seeking to achieve in the application?‑‑‑Don't accept that, no.

PN1857

The other survey-type exercise was this Survey Monkey - sorry, if I could just have a moment.

PN1858

The second exercise that you conducted or coordinated was this Survey Monkey exercise. Correct?‑‑‑Correct, yes.

PN1859

And that was I think promoted in a number of different ways. There was a media release I think that was placed on the Farmer's Federation website?‑‑‑That's my understanding, yes.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

PN1860

Well, were you involved in that process or not?‑‑‑I wasn't directly involved. I probably asked for something along those lines to be - I probably asked for it to be promoted, and this is the way it was promoted, and then I probably looked at the press release, but I wasn't directly responsible for it, no. I didn't draft this press release, for example.

PN1861

I understand it was also - was it also sent out as a newsletter?‑‑‑Again, yes, that is my understanding. Same process.

PN1862

All right. I think we asked you to be provided with two additional documents, the first of which is an extract from the web site, as I understand it, or what we were provided with as the newsletter. It's a document with a green square on the first page in which the words, "Growers and farmworkers are asked to help protect piece rates." Do you see that?‑‑‑I do.

PN1863

You have that one?‑‑‑I do.

PN1864

It is dated 30 April of this year?‑‑‑Yes.

PN1865

And was what you were just telling me, that you didn't draft this text?‑‑‑That's correct.

PN1866

Did you approve the text?‑‑‑It's not me to approve, no. As I say, I probably looked at it and made comments. I have no specific collection of having done that, but I assume that that's what happened. That would be consistent with normal practice.

PN1867

Do you know who was responsible for the drafting of this document?‑‑‑I would speculate that it was our media manager. I would assume that sort was.

PN1868

If you just go to the - you see there is some quotes from a Mr Gator on the first page. If you go to the top of the second page of the document you will see there is some text:

PN1869

The AWU has recently launched an application in the Fair Work Commission to effectively abolish piece rates.

PN1870

Do you see that?‑‑‑I do, yes.

PN1871

Are you saying you didn't draft - it seems to be the same text as the earlier - the hard copy questionnaire. Are you saying you didn't draft that text?‑‑‑No.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

PN1872

All right, I understand. So far as you were involved, so far as you drafted the earlier questionnaire that was at 3002 of the Court Book, and included statements that the AWU had made an application to effectively eliminate piece rates, and that it may result in the removal of the requirement to set a 15 per cent set piece rates so as to enable piece workers to earn 15 per cent above the minimum wage; it's correct to say you included those statements because you wanted to engender responses that were critical of the AWU's application?‑‑‑I wanted to engender a response which was realistic of the consequences of the application.

PN1873

That is not reflecting what the application was, but what you assert are the potential consequences of the application; correct?‑‑‑Correct.

PN1874

Your Honour, can I tender the - I'm not sure whether it's a newsletter or a press release, but the document with the green box "Growers and Farm Workers asked to help protect piece rates".

PN1875

JUSTICE ROSS: Yes, I will mark that exhibit AWU19.

EXHIBIT #AWU19 NEWSLETTER/PRESS RELEASE WITH GREEN BOX "GROWERS AND FARM WORKERS ASKED TO HELP PROTECT PIECE RATES"

PN1876

MR GIBIAN: The second document that we asked you to be provided with is, I think, the form of - what I understand we have been provided with is the form of the Survey, Monkey survey?‑‑‑Yes.

PN1877

Have you got a copy of that?‑‑‑Yes, I do.

PN1878

There's a box on the first page, a rectangular box taking up the whole page, the top of which is the logo of the National Farmers' Federation?‑‑‑Yes.

PN1879

It's headed "NFF Piece Rates in Horticulture Survey"; correct?‑‑‑Yes.

PN1880

This was made available through a link on the Farmers' Federation website?‑‑‑I believe that's true, yes.

PN1881

Well, was there any other way that people could click on the survey link?‑‑‑I think there were links in Twitter messages and on Facebook and that sort of thing. I didn't have responsibility for promoting this, so I can't say with any certainty, but, yes, I think that's right.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

PN1882

One method, at least - or perhaps going back a step, in order to participate in the survey, they had to click on a link that would take them to the Survey Monkey page; correct?‑‑‑Correct.

PN1883

They could access that from the Farmers' Federation website; correct?‑‑‑Again, I believe that to be the case. I wouldn't - I'm not certain.

PN1884

If you go back to the first document, AWU19, that was just marked as AWU19, if you go to the third page of the document, you see at the bottom of that page - - -?‑‑‑I do, yes.

PN1885

The last two paragraphs read:

PN1886

If you're a worker or a grower in the horticultural sector who has been or is being paid piece rates, we want to hear from you. Please consider completing the survey here.

PN1887

Do you see that?‑‑‑Yes. Yes, I do.

PN1888

I think you have also said there were Twitter and Facebook messages. Are you aware of any other mechanism by which individuals could complete this survey?‑‑‑I'm not - I know that we asked our members to ask their members to promote the survey, so it was probably in some newsletters or something along those lines, but I don't know of anything specific, no.

PN1889

All right. Then it was just up to individual farmers as to whether they clicked on the link and completed the survey?‑‑‑Correct.

PN1890

I don't know how the technology works, but they did not have to complete every question, that is, they could complete some questions on the survey and leave others blank?‑‑‑I would assume so, yes.

PN1891

The results indicate on various questions that a large number of respondents skipped particular questions. I infer from that that they were able to do so and still complete the survey. That's your understanding?‑‑‑That is, yes, I would agree.

PN1892

Do you have the survey form?‑‑‑I do.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

PN1893

You see on the first page the questions start at question 1 and proceed over the next two pages to question 15 on the third page; do you see that?‑‑‑Yes.

PN1894

Question 16 says:

PN1895

If you are open to being contacted by the NFF in the matter, please provide your contact details.

PN1896

Do you see that?‑‑‑I do.

PN1897

If you then go to page 4, the survey then, at question 17, then commences on a different topic, that is, it asks questions from the respondents who are employees; do you see that?‑‑‑I do.

PN1898

Do we understand this form that if you are a grower, the idea is that you completed 1 to 15 and then put your name in; is that right?‑‑‑Yes, 1 to 16, yes, I think that's right.

PN1899

Sorry, 1 to 16. And then that they would then arrange for an employee to complete 17, 18, 19 and 20?‑‑‑No. In fact, my understanding is that it would leave - if you indicated earlier, I think - I had someone who works with me actually do the mechanics of this document, but I believe that if you indicated you were a worker, then it would leap from question 4 to question 17.

PN1900

I understand. All right. Then, after question 21 - if you go to page 5 - sorry, page 4 - question 21 asks the employee to put in their name; is that right?‑‑‑Sorry, question 21, yes.

PN1901

Then on page 5, the questions are then - is this back to questions for the employer or - - -?‑‑‑My understanding, again, and I didn't deal with the mechanics of this, but if the response to question 4 was "labour hire operator", it would then jump to 22.

PN1902

All right. So if you go to question 24, it says:

PN1903

What's the average weekly earnings of piece rate worker on the farm?

PN1904

Do you see that?‑‑‑I do.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

PN1905

Is that meant to be directed at a labour hire operator?‑‑‑I believe that's right.

PN1906

Well, you drafted it, didn't you?‑‑‑I drafted - sorry, yes, I drafted the initial questions, then some of them were modified by my offsider, but I did clear it and, obviously, I missed that.

PN1907

All right. In any event, people are supposed to understand, are they, that from 22 onwards is with respect to labour hire?‑‑‑I believe that's correct, yes.

PN1908

I understand. Can you go back to your statement. Annexure F to your statement, which commences on the court book at page 2893, is the results of such responses as you received?‑‑‑Yes.

PN1909

When did you derive these results?‑‑‑I think the survey closed on 10 June, so I'm going to say 10 June, but I actually have no direct memory of closing it down.

PN1910

All right. How did you get these results?‑‑‑They were downloaded from the system. Again, I think my offsider probably did it, but they were downloaded from the system, directly from the system, from the Survey Monkey program.

PN1911

Can I then just ask you just to make sure that - if you can't help us then tell me - I just want to make sure that I've understood correctly how we are to read these results. Can you go to question 12, which is on page - I don't think it's internally numbered but it's page 2913 of the court book?‑‑‑Yes.

PN1912

These are within the questions directed at an owner, I think, or a grower?‑‑‑Yes.

PN1913

And the question that is being responded to is:

PN1914

What proportion of the piece rate workers made less than $24.80 per hour?

PN1915

?‑‑‑Yes.

PN1916

You understand 24.80 is the casual rate?‑‑‑Correct.

PN1917

For level 1 under the award?‑‑‑Correct, yes.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

PN1918

Underneath the question, it's indicated that 109 answered and 87 skipped that question?‑‑‑Correct.

PN1919

So, we are right in understanding that there were 196 - if my maths is correct - responses that were directed to this part of the survey from growers?‑‑‑I'm sorry, was that a question? You might need to repeat it.

PN1920

Yes?‑‑‑Sorry.

PN1921

You will see that there's an indication that 109 answered this question and 87 skipped the question?‑‑‑Yes.

PN1922

And those numbers added together, I think, are 196?‑‑‑Yes.

PN1923

Are we right in understanding then that there were 196 responses from farmers, from growers?‑‑‑I don't - well, if I understand the question, then, no, 87 skipped, so they did not respond. It was 109 who responded. The reason for skipping, obviously, I don't know but --

PN1924

That is 87 of those who were responding chose not to answer that question?‑‑‑I don't know that's true. I mean they might have been distracted, they might have left, they might have - there's any number of reasons, I don't know why they didn't. Their computer may have crashed.

PN1925

They did not answer that question?‑‑‑Yes, that's - yes.

PN1926

If they were working their way through the survey and got to that question they either decided to answer it or not to answer it, is that right?‑‑‑If they were working their way through the survey and got to that question - okay, yes. I mean again they may have got distracted, they may have walked away, it may - but, yes, okay.

PN1927

So you're speculating, are you, that there wasn't a deliberate decision made in all 87 cases not to answer this question?‑‑‑I'm just saying I don't know the exact reason why they elected not to, or didn't elect not to, or in fact didn't answer the question.

PN1928

In any event 87 having at least started to commence this survey did not answer, correct?‑‑‑Yes.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

PN1929

And 109 elected to answer, and out of those ones, those growers, you have set out the number who said either zero earnt, less than 24 or up to 10 per cent or up to 20 per cent, et cetera, correct?‑‑‑That's the way it's set out, yes.

PN1930

So we are right in understanding that 30 per cent claimed that no one - no piece workers earnt less than $24 an hour?‑‑‑Sorry, can you repeat the question.

PN1931

Thirty per cent of those who were willing to answer this question indicated that none of the piece workers earnt less than $24.80 an hour, is that right?‑‑‑Yes.

PN1932

So the remainder, so almost 70 per cent, at least some of the piece workers earnt less than $24.80 an hour of those that were willing to answer this question as we read this survey?‑‑‑Sorry, can you repeat the question, I'm struggling with the figures here. I apologise.

PN1933

You see the heading "Answers choices"?‑‑‑I do, yes.

PN1934

So the first one is 0 per cent, do you see that?‑‑‑Yes.

PN1935

That is 0 per cent of the piece workers made less than $24 an hour, do you see that?‑‑‑Yes.

PN1936

That's how you read that, correct?‑‑‑Yes.

PN1937

And the responses was 30 per cent said 0 per cent of the piece workers earnt less than $24 an hour, is that right?‑‑‑21 to 30 per cent - sorry - - -

PN1938

See where it says 0 per cent in the table in the middle part of that page?‑‑‑I do, yes.

PN1939

And you see that's "Answer choices", and you see the second column is headed "Responses", do you see that?‑‑‑I do, yes.

PN1940

Underneath that is 30.28 per cent?‑‑‑Yes.

PN1941

So 30 per cent or slightly over 30 per cent said that none of their piece workers earnt less than $24.80 an hour?‑‑‑Yes.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

PN1942

So the remaining 69 point something per cent, at least some of their workers earnt less than $24.80 an hour. Is that how we read this?‑‑‑Well, I read that to mean that 70 per cent earnt more, but I'm likely misunderstanding again.

PN1943

The question says, does it not, what is the proportion of piece workers who make less than $24.80 an hour. Do you see that?‑‑‑Yes.

PN1944

So 0 per cent, that is none of them make less than $24.40 an hour, that's 33 responses and 30 per cent, is that right?‑‑‑Yes.

PN1945

For 33 per cent or 37 responses up to 10 per cent earnt less than $24 an hour, is that right?‑‑‑Yes. Sorry, yes.

PN1946

And 15 per cent between 11 and 20 per cent earned less than $24.80 an hour. Is that how you read this?‑‑‑Yes.

PN1947

All right. Can I just have a moment.

PN1948

JUSTICE ROSS: Mr Gibian, can you just refresh my memory, the $24.80 an hour you said that was for casual rate level 1. Is that including the 15 per cent or - - -

PN1949

MR GIBIAN: No. Fifteen per cent would be I think $28.50 or something of that nature.

PN1950

JUSTICE ROSS: Is that the issue in question at 13, the response to that, is that where you come up with - - -

PN1951

MR GIBIAN: That's a matter for Mr Rogers, but I think - I assume the 28 has been chosen and I am happy to ask him. I think it's slightly short of, but at least an approximation of the plus 15 per cent.

PN1952

JUSTICE ROSS: Is that right, Mr Rogers?‑‑‑Sorry, can you repeat the question?

PN1953

MR GIBIAN: I am happy to ask, your Honour, unless your Honour - - -

PN1954

JUSTICE ROSS: No, you go.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

PN1955

MR GIBIAN: I don't want to cut across your Honour. If you go to the following page, I was asking about question 12. If you go to the following page, which is 2914?‑‑‑Yes.

PN1956

Is question 13?‑‑‑Yes.

PN1957

You see it is asked, "What is the proportion of piece rate workers who make more than $28 an hour?" Do you see that?‑‑‑I do.

PN1958

I think the casual rate plus 15 per cent is actually $28.52 per hour. I am not asking you to accredit that maths, but I think that is the correct figure. Are we right in understanding that you chose $28 as an approximation of the casual rate for level 1 plus 15 per cent?‑‑‑Yes, and I think at the time that the survey was drafted the 15 per cent was slightly less than 28. I think since the annual wage review has gone up, so that might explain the difference. So I think 28 is slightly more, but that was again my maths, I might be wrong about that.

PN1959

I think you might be wrong about that, but we don't - - -?‑‑‑Okay.

PN1960

I don't think we need to - - -?‑‑‑I chose 28 because it was a round figure at about the 15 per cent, yes.

PN1961

You intended it to be a representor of the 15 per cent at least?‑‑‑Yes.

PN1962

I understand. Is that clear, your Honour?

PN1963

JUSTICE ROSS: Yes, thanks. Does that conclude your questions, Mr Gibian?

PN1964

MR GIBIAN: Can I just have a moment?

PN1965

JUSTICE ROSS: Yes.

PN1966

MR GIBIAN: That's the cross-examination, your Honour. Can I tender the SurveyMonkey documents headed "NFF piece rates in agriculture survey"?

PN1967

JUSTICE ROSS: Yes.

*** BENJAMIN WILLIAM ROGERS XXN MR GIBIAN

EXHIBIT #AWU20 SURVEYMONKEY DOCUMENTS HEADED "NFF PIECE RATES IN AGRICULTURE SURVEY"

PN1968

JUSTICE ROSS: Any cross-examination, Ms Burke?

PN1969

MS BURKE: No, thank you, your Honour.

PN1970

JUSTICE ROSS: Mr Donaghey?

PN1971

MR DONAGHEY: Nothing further, your Honour.

PN1972

JUSTICE ROSS: Thank you for your evidence, Mr Rogers, you're excused?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW [3.28 PM]

PN1973

JUSTICE ROSS: Can we call the next witness.

PN1974

THE ASSOCIATE: Mr McClintock, can you please state your full name for the Commission.

PN1975

MR McCLINTOCK: Brent Russell McClintock.

<BRENT RUSSELL MCCLINTOCK, AFFIRMED [3.29 PM]

EXAMINATION-IN-CHIEF BY MR DONAGHEY [3.29 PM]

PN1976

JUSTICE ROSS: Mr Donaghey?

PN1977

MR DONAGHEY: Thank you, your Honour. Mr McClintock, your full name is Brent Russell McClintock?‑‑‑That's correct.

PN1978

Have you made a witness statement in this case?‑‑‑That is correct.

PN1979

And does that witness statement - do you have that witness statement in front of you?‑‑‑Yes, I do.

*** BRENT RUSSELL MCCLINTOCK XN MR DONAGHEY

PN1980

And does that witness statement consist of five pages and 30 paragraphs?‑‑‑Yes, that is correct.

PN1981

And one exhibit marked A?‑‑‑Yes.

PN1982

Appearing at court book 2956. Mr McClintock, are there any corrections you wish to make to your statement?‑‑‑Yes, there are some corrections I wish to make to my statement.

PN1983

Could I take you then to, I think it's paragraph 1. Has your position changed since you made this statement?‑‑‑Yes, my position (indistinct) has changed.

PN1984

Yes, and what's your position now?‑‑‑My current position as general manager of Tasmanian operations.

PN1985

In relation to paragraph 8 is there a change you wish to make there?‑‑‑Yes, it should read 15 to 20 permanents/long time casual workers, so it more accurately represents the (indistinct) of people we employ in that role.

PN1986

JUSTICE ROSS: Sorry, could you just repeat that, what paragraph - - -

PN1987

MR DONAGHEY: Paragraph 8, your Honour, I think. Is that correct, Mr McClintock?‑‑‑Yes.

PN1988

And the correction you wish to make is that you - there should be a statement that you have 15 to 20 permanent long-term - I will start again ‑ ‑ ‑ ?‑‑‑Long-term slash ‑ ‑ ‑

PN1989

‑ ‑ ‑ casual workers?‑‑‑Yes.

PN1990

Is there a change you wish to make to paragraph 12?‑‑‑There

PN1991

are two small changes in that.

PN1992

Yes?‑‑‑One is it should be all pickers, not just cherry pickers.

PN1993

Yes?‑‑‑And the second one is adding a second labour company, which was ‑ ‑ ‑

*** BRENT RUSSELL MCCLINTOCK XN MR DONAGHEY

PN1994

What was the name of that second labour company?‑‑‑Hillwood Berries.

PN1995

So is that in addition to both Link Employment and Agri Labour who appear there currently?‑‑‑Yes, that is correct.

PN1996

Hillwood Berries. Thank you. Turning to paragraph 13, do you have a change to make there?‑‑‑Yes. We ended up having to engage some SWP workers to complete our apple season this year.

PN1997

When was that apple season complete, if you could tell the tribunal?‑‑‑It was completed around the middle of May.

PN1998

I understand that change. And could I - I think you've got one more correction, Mr McClintock, if I'm correct. Is that to paragraph 29?‑‑‑That is correct.

PN1999

What did you want to say about paragraph 29?‑‑‑So it's more of a change of the wording, and it's more saying that we - rather than - it's a huge capital cost for us to replant versus what's currently there.

PN2000

Yes?‑‑‑Which it should read:

PN2001

Which is less labour-intensive but has a high capital cost. It may result in blocks not being replanted.

PN2002

"Less labour-intensive, but a higher capital cost" to that second and third line?‑‑‑Yes.

PN2003

Thank you. Subject to those corrections, is your statement true and correct to the best of your knowledge?‑‑‑Yes, that is correct.

PN2004

I tender that statement, your Honour.

PN2005

JUSTICE ROSS: I will mark Mr McClintock's statement as exhibit NFF4.

EXHIBIT #NFF4 STATEMENT OF BRENT McCLINTOCK AS CORRECTED

*** BRENT RUSSELL MCCLINTOCK XN MR DONAGHEY

PN2006

MR DONAGHEY: Thank you, your Honour. No questions for this witness.

CROSS-EXAMINATION BY MR GIBIAN [3.34 PM]

PN2007

MR GIBIAN: Mr McClintock, can you at least hear me, and maybe see me adequately?‑‑‑Yes.

PN2008

Excellent. All right. As I understand it, there are two crops that you're growing, cherries and apples. Is that right?‑‑‑That is correct.

PN2009

I think - and you explained the employment arrangements at the farms. You have a core of local workers, and then the seasonal workers, both pickers and packers, are engaged during the harvest season?‑‑‑Yes.

PN2010

And I think you say probably between 50 and 60 to do the apple picking, and more 200 to do the cherries. Is that right?‑‑‑That is correct.

PN2011

And I think you corrected your statement in this respect, but all of those are engaged through labour hire companies. Is that right?‑‑‑That is correct.

PN2012

Is that the pickers and the packers, at least so far as temporary workers?‑‑‑That is correct.

PN2013

In that respect am I right in understanding that you don't make piece work agreements directly with the individual workers, that's done by the labour hire agency?‑‑‑That is correct.

PN2014

So at least as you understand it, you tell the labour hire agency what the rate is going to be, and it's up to them to enter into the agreements with the workers?‑‑‑Yes. When a job is set up we put in a minimum rate that we will pay for the job, and that is the rate they advertise with.

PN2015

So when you enter - I assume you have to enter into a contractual arrangement with the labour hire company?‑‑‑That's correct.

PN2016

And at that time you tell them what the rate is going to be?‑‑‑What the minimum rate is going to be.

*** BRENT RUSSELL MCCLINTOCK XXN MR GIBIAN

PN2017

And they then - well, it's a matter for them to then - you're not involved in the process of obtaining the workers, but they obtain the workers through whatever mechanisms they need to use, and they send them along to your farm?‑‑‑That is correct.

PN2018

And whatever arrangements are entered into between the labour hire and the worker, you're not involved in that process?‑‑‑We do take some involvement. We have a moral obligation to ensure that they're being employed correctly through the labour company; and we also take a strong view on how we engage staff and look after staff on farm.

PN2019

That is, do you look at the piece work agreements that they enter into with the labour hire company or not?‑‑‑Yes.

PN2020

Sorry?‑‑‑We have a look at them, but we also - because we're dealing with the staff day to day, we're the face, so to speak. So if we're dealing with complaints or issues, the complaints normally come back to us.

PN2021

All right. You then pay the labour hire company on whatever agreed arrangement you have with the labour hire company for the workers that they've provided?‑‑‑That is correct.

PN2022

I think you say all the pickers are on piece work rates and half of - 50 per cent of the packers?‑‑‑Yes.

PN2023

Who decides which 50 per cent of the packers are on piece rates?‑‑‑It depends on their role in the packing shed.

PN2024

I'm sorry?‑‑‑It depends on the role in the packing shed. Half the roles are wage roles and half the roles are - roughly half the roles are contract or piece rate roles.

PN2025

But they're all engaged through the labour hire company. Is that right - one of the labour hire companies?‑‑‑Not all of the - a lot of the - some of the wage workers are engaged through the labour hire company, and then we have that small core of people who are functioning in some roles as well.

PN2026

And all the piece work packers are engaged through a labour hire company. Is that right?‑‑‑Yes.

*** BRENT RUSSELL MCCLINTOCK XXN MR GIBIAN

PN2027

In terms of the picking work, I think you've said at paragraph 19 that a competent worker can harvest six to eight bins. That's apples, I take it?‑‑‑That is correct.

PN2028

And in terms of - sorry, are they - what size are those bins that you're ‑ ‑ ‑ ?‑‑‑Sort of a - depending on the fruit type, because the apples weigh differently, it's around 360 kilos to pull 100 kilos.

PN2029

All right. In terms of setting the rates, you've described that at paragraph 21, and there you indicate that - I think it says "at the being", I assume that should be "at the beginning of each season ‑ ‑ ‑ "?‑‑‑Yes.

PN2030

‑ ‑ ‑ you set the rate, and that's the process that I asked you about that, that is you - this is the rate that you inform the labour hire companies?‑‑‑Yes.

PN2031

And you are informed by the guidance provided by Primary Employers Tasmania. Is that right?‑‑‑That, and our own experience of what our blocks produce and how they pick out.

PN2032

That is it may be higher or it may be lower than what Primary Employers Tasmania recommends?‑‑‑Yes.

PN2033

And then you describe a process over the page of making adjustments to the rate each day. Is that right?‑‑‑Yes.

PN2034

So you will have some work planned out for a particular day. Is that right?‑‑‑Yes.

PN2035

Do you do this process yourself?‑‑‑Largely I used to do it in previous years, as my role has changed, and I've been taking steps back on the day to day stuff. I'm not as hands-on as I used to be. So it's normally handled by our farm manager or our key supervisors.

PN2036

When were you last more directly involved in this process?‑‑‑I think I started doing it at the start of the season, and then I've taken my hands off it during the season as the role changed.

PN2037

That is this year?‑‑‑Yes.

PN2038

I understand. So in terms of the - when you were involved with the process, there's some work planned out for the day?‑‑‑Yes.

*** BRENT RUSSELL MCCLINTOCK XXN MR GIBIAN

PN2039

And in the morning you will make an assessment based upon the weather, and the nature of the work that's planned for the day, and the type of crop and the area in the farm that's being worked and make a determination as to what the rate should be for that day; is that right?‑‑‑That is correct.

PN2040

When do you tell the workers that?‑‑‑Before they - they get told it as they start.

PN2041

So, when they turn up for work that day, you tell them what the rate's going to be for that day; is that right?‑‑‑Yes.

PN2042

You then describe a process in (c) of paragraph 21 of monitoring from start to finish; do you see that?‑‑‑Yes.

PN2043

That is, you might make a change to the rate during the day; is that right?‑‑‑No, we won't make a rate until the end of the day, but we're paying attention to what is going on during the day, so we're looking at what they have picked, how long it's taking them and what's going on.

PN2044

This is a role that, I take it, the farm manager, or the like, or the supervisors would be involved in and you were previously involved in; is that right?‑‑‑That is correct, yes.

PN2045

And that's supervising the workers as they're doing the work and checking on how the quantities are going and you may make an adjustment at the end of the day; is that right?‑‑‑That is correct.

PN2046

When will you tell the workers that?‑‑‑So, they will be informed when they return to work for the next day.

PN2047

So, the next day, you tell them if there's been an adjustment from, say, the day before?‑‑‑Yes.

PN2048

They are then paid, are they, at the end of the rate?‑‑‑Yes. So they're paid - most of our providers pay weekly and I've got one that pays fortnightly, but we provide the information to them weekly.

PN2049

So you provide the information to the labour hire company weekly?‑‑‑That is correct.

*** BRENT RUSSELL MCCLINTOCK XXN MR GIBIAN

PN2050

As to what the rate was and how much work's been done by the particular worker or each particular worker?‑‑‑Yes, and how many hours they've worked.

PN2051

So, you keep a record of the hours that they've worked and provide that to the labour hire company as well?‑‑‑That is correct.

PN2052

You maintained your own documentation recording the hours of work?‑‑‑Yes.

PN2053

JUSTICE ROSS: Sorry, Mr McClintock, just in relation to the last question, you maintain a record of hours of work for both piece workers and minimum hourly workers; is that correct?‑‑‑That is correct. Under the Hort Award, we have to maintain the hours or else how can we work out the average?

PN2054

Yes, all right, thanks.

PN2055

MR GIBIAN: Sorry, I was on mute. In monitoring work of the workers, either yourself when you were doing it, or any other farm managers or other supervisors, you would identify workers who were not working at the speed or with the efficiency that is reasonable?‑‑‑Yes.

PN2056

And I think you have indicated that generally what you would do in that kind of circumstances is you'd, at least if it didn't remedy itself in a reasonable period, ask the person to move on?‑‑‑Yes. So what - that would be - what we tend to do is we retrain. We spend a lot of time developing our staff and we're trying to have successes rather than failures because there's a huge investment in putting someone on. So, there's a reasonable retraining process that goes - we go through, and then it comes down to whether or not that person either doesn't wish to continue or they wish to continue.

PN2057

All right. That is, if they don't get up to speed in a reasonable period, notwithstanding training, it's a question as to whether it's appropriate for them to continue to do that work?‑‑‑Yes.

PN2058

And that's a discussion you would have with them?‑‑‑Yes.

PN2059

I understand. Can I then ask you about some documents that were produced. I think you have produced some documents. There's a wad of, I think, some 379 pages. Do you have those available to you?‑‑‑Yes.

*** BRENT RUSSELL MCCLINTOCK XXN MR GIBIAN

PN2060

You will see that that's - if you just go to the first page of those documents, you'll see that there's a table document with a date of 22 March 2021; do you see that?‑‑‑Yes.

PN2061

Are these records that are maintained on your company's system?‑‑‑Yes.

PN2062

This is the records of both hours and work quantity of the picking employees for the relevant period?‑‑‑Yes.

PN2063

These records are maintained by the supervisors or entered by the supervisors and then entered onto this system by an officer person for that purpose?‑‑‑Yes, so a paper-based system out on the field and then entered into the spreadsheets by an office person.

PN2064

Is that done on a daily basis?‑‑‑Yes.

PN2065

The first day, there's a picker number and the name of the worker; do you see that?‑‑‑Yes.

PN2066

Then there's various bin types?‑‑‑Yes.

PN2067

That are listed across the top, depending on value, in short; do you see that?‑‑‑Yes.

PN2068

Then the total bin numbers picked by the individual employee and their start and finish time and break periods?‑‑‑Yes.

PN2069

Do you agree with that? All right. Can I ask you to go to the second page of - just because there's a few more employees on the second page. That's the entry for 23 March this year?‑‑‑Yes.

PN2070

This was work involving apple picking?‑‑‑Yes.

PN2071

On that day, there were seven workers doing apple picking; is that right?‑‑‑That is correct.

PN2072

They were doing apple strip picking?‑‑‑Yes.

*** BRENT RUSSELL MCCLINTOCK XXN MR GIBIAN

PN2073

And the bin rate that was applied to them was $45 per bin; is that right?‑‑‑That is correct.

PN2074

They would have been informed that morning, would they, that the bin rate for that day was going to be $45?‑‑‑That's correct.

PN2075

Do we assume then it wasn't adjusted?‑‑‑No, the - what you're looking at - you're unfortunately looking at stuff here in isolation. This is one labour provider's sheet and when we set rates, we're setting it for every workers in that block. So, you have to look at the other providers as well on that day to get your average.

PN2076

All right, let's take that one step at a time. So, this is a record, is it, for one labour hire provider?‑‑‑That is correct.

PN2077

Which one is that, do you know?‑‑‑Looking at the names, I'd say Link.

PN2078

So it doesn't identify it on this document itself, but those are employees of Link, as you recall it at least, who were doing work in that period?‑‑‑Yes.

PN2079

Correct?‑‑‑That is correct.

PN2080

Or on that day; correct?‑‑‑Yes.

PN2081

You are saying there were also workers from other - you said there were two other labour hire agencies?‑‑‑Yes.

PN2082

Are you speculating or at least you think that there were probably other workers from other labour hire agencies on that day?‑‑‑A normal picking crew is 40-odd pickers this year, so I'm assuming - and I know for a fact that we had Link, we had Agri Labour and we had Hillwood Berries engaged on the same day, all working in the same block.

PN2083

All right. Is there a separate record of this type for those other companies for the same day?‑‑‑Yes.

PN2084

Have you produced that as well in this bundle?‑‑‑Yes.

*** BRENT RUSSELL MCCLINTOCK XXN MR GIBIAN

PN2085

Can I just make sure I've understood what is shown here, which is what I was asking you?‑‑‑Yes.

PN2086

You will see that these workers, at least, were picking - doing apple strip picking and were filling bins for which they were to be paid $45; is that right?‑‑‑Yes.

PN2087

In light of the process that you described earlier, they would have been told at the start of the day that it was $45 a bin; is that right?‑‑‑Yes.

PN2088

And we can assume on this occasion that no adjustment was made to that rate. Is that right?‑‑‑No.

PN2089

That is there may have been an adjustment made?‑‑‑No, there was no adjustment.

PN2090

You agree with me?‑‑‑Yes.

PN2091

If an adjustment was made, the numbers would appear in a different column?‑‑‑Yes.

PN2092

I understand. And so on this day the first employee, Mr Widderson, picked seven bins, seven $45 bins. Is that right?‑‑‑That is correct.

PN2093

The second, Mr Hodgetts, picked two $45 bins. Is that right?‑‑‑That is correct.

PN2094

And Mr Pickvell, two; I assume that's Mr Sapkopta, picked three; Mr Saunders, Mr Mann picked three; and Mr Sodey two. Is that right?‑‑‑That is correct.

PN2095

And the hours of work are then in the right-hand column?‑‑‑Yes.

PN2096

The three columns on the right-hand side. So Mr Hodgetts picked two bins in the period between 7 am and 2.40 pm. Is that right?‑‑‑Yes ‑ ‑ ‑

PN2097

‑ ‑ ‑ which time he had a 30-minute break?‑‑‑Yes.

PN2098

And that's seven hours and 17 minutes. I'm not sure why it's - it's 7.17 hours?‑‑‑Yes.

*** BRENT RUSSELL MCCLINTOCK XXN MR GIBIAN

PN2099

All right. So he would have earned $90 in that period of time. Is that right?‑‑‑That is correct.

PN2100

And Mr Pickvell also earned $90; and Mr Sapkopta and Mr Saunders, $120 in six and a half or seven hours, thereabouts?‑‑‑Yes.

PN2101

All right. So for those - Mr Hodgetts, for example, was earning I think something in the range of $12 an hour. Is that right?‑‑‑I would suspect so, yes.

PN2102

And Mr Sapkopta and Mr Saunders, $17 or something in that range. I don't understand your maths, but $120 over almost seven hours of work. All right?‑‑‑Yes.

PN2103

I think the next day, on the third page, is the 24th of - and at least among those - sorry, if you just stick with the second page, 23 March - I withdraw that. If you go forward, the next page is ‑ ‑ ‑

PN2104

JUSTICE ROSS: Just before you do.

PN2105

Mr McClintock, if you go - the document is not numbered, but you go about a centimetre into the bundle and there's another date, 23 March, with another group of workers, starting with picker number 6, Hayley Griffin. Is that what you mean? You go through the document, you wanted to work out, there's more than one crew on a particular day, but if you look at the date on it, then - and you match them up, that will tell you, once you've collated those, how many pickers were employed on the day and what their results were?‑‑‑Yes, that is correct.

PN2106

Yes, Mr Gibian.

PN2107

MR GIBIAN: Can I just have a moment, your Honour?

PN2108

JUSTICE ROSS: Sure.

PN2109

MR GIBIAN: I think - I don't know what form you have it in. In electronic form it's page 178 within the bundle of documents that you have, there's another page for 23 March.

*** BRENT RUSSELL MCCLINTOCK XXN MR GIBIAN

PN2110

JUSTICE ROSS: Unfortunately my printed out copy doesn't have page numbers, but ‑ ‑ ‑

PN2111

MR GIBIAN: Yes. No, mine doesn't have page numbers either, but it does have a page number within the electronic ‑ ‑ ‑

PN2112

JUSTICE ROSS: But how much further are you going to take the cross‑examination? You're not presumably ‑ ‑ ‑

PN2113

MR GIBIAN: I was about to finish, until your Honour pointed out the other pages ‑ ‑ ‑

PN2114

JUSTICE ROSS: The material can be collated in some way and you can make submissions about ‑ ‑ ‑

PN2115

MR GIBIAN: Yes. That may be sufficient.

PN2116

Page 178 of the bundle has another page for 3 March 2021 which has another I think 14 names on it. We're right, as his Honour the President pointed out that - are we right in understanding there to be those workers sourced from a different labour hire company. Is that right?‑‑‑Yes. So it's all - these are essentially the forms we send to the labour hire companies, so we have to correlate them separately because we don't send one lot of information to another labour hire company.

PN2117

I understand.

PN2118

If I could just have one moment to check one more entry.

PN2119

JUSTICE ROSS: Certainly.

PN2120

MR GIBIAN: That's the cross‑examination.

PN2121

JUSTICE ROSS: Ms Burke, any questions? Anything in re‑examination, Mr Donaghey?

PN2122

MR DONAGHEY: Nothing for this witness, your Honour.

*** BRENT RUSSELL MCCLINTOCK XXN MR GIBIAN

PN2123

JUSTICE ROSS: Thank you for your evidence, Mr McClintock. You're excused?‑‑‑Sure.

<THE WITNESS WITHDREW [3.58 PM]

PN2124

MR GIBIAN: Can I tender that bundle, your Honour?

PN2125

JUSTICE ROSS: Certainly. So all of the material provided in response to the notice to produce?

PN2126

MR GIBIAN: Yes, please.

PN2127

JUSTICE ROSS: Bear with me.

PN2128

MR GIBIAN: I'm sorry, he produced a couple of different documents. Just that bundle, actually.

PN2129

JUSTICE ROSS: I'm not sure which bundle you're referring to.

PN2130

MR GIBIAN: The bundle I asked him about, it's a 379-page bundle with the ‑ ‑ ‑

PN2131

JUSTICE ROSS: Yes. No ‑ ‑ ‑

PN2132

MR GIBIAN: Sorry, he produced separately some other documents, just so there's no confusion.

PN2133

JUSTICE ROSS: Yes. No, no problem.

PN2134

MR GIBIAN: We will arrange for it to be paginated at least, your Honour.

PN2135

JUSTICE ROSS: That would be helpful. Thank you. Mark that exhibit AWU21.

EXHIBIT #AWU21 BUNDLE OF DOCUMENTS PROVIDED BY BRENT McCLINTOCK

PN2136

If we can call the next witness, Ms Silverstein.

PN2137

THE ASSOCIATE: Can you please state your full name for the Commission.

PN2138

MS SILVERSTEIN: My full name is Catherine Frederic Cristine Silverstein.

<CATHERINE FREDERIC CRISTINE SILVERSTEIN, AFFIRMED [4.00 PM]

EXAMINATION-IN-CHIEF BY MR DONAGHEY [4.00 PM]

PN2139

MR DONAGHEY: Ms Silverstein, could you state your full name again?‑‑‑My full name is Catherine Frederic Cristine Silverstein.

PN2140

And are you referred to on occasion as Rene Silverstein?‑‑‑I am.

PN2141

Have you made a witness statement in this case?‑‑‑I have.

PN2142

Do you have a copy of that in front of you?‑‑‑I do have a copy of that.

PN2143

Is your witness statement consist of five pages and 38 paragraphs?‑‑‑That's correct.

PN2144

It has no exhibits to it?‑‑‑No, it has not.

PN2145

And for those electronic, it is CB, court book 2961. Do you have any corrections you wish to make to your witness statement Ms Silverstein?‑‑‑No, I do not.

PN2146

I tender that, your Honour.

PN2147

JUSTICE ROSS: I will mark Ms Silverstein's statement as exhibit NFF5.

EXHIBIT #NFF5 WITNESS STATEMENT OF CATHERINE SILVERSTEIN

PN2148

MR DONAGHEY: No further questions for this witness, your Honour.

PN2149

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN XN MR DONAGHEY

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN XXN MR GIBIAN

JUSTICE ROSS: Thank you, Mr Gibian.

CROSS-EXAMINATION BY MR GIBIAN [4.02 PM]

PN2150

Thank you, Ms Silverstein. You can hear and see me adequately, can you?‑‑‑I can.

PN2151

Excellent. The crops you grow are apples and pears; is that right?‑‑‑That's correct.

PN2152

For the purposes of the harvesting task or the seasonal work, as I understand it, you've said that you usually employ up to around - sorry, there's 40 workers in total of which aa are year-round and the remainder are the seasonal workers; is that right?‑‑‑That's correct.

PN2153

I think they are made up, are they, of around, you say in paragraph 15, generally about 10 engaged through the Seasonal Worker Program; is that right?‑‑‑That's correct.

PN2154

And the remainder are either labour hire or backpackers; is that right?‑‑‑That's correct.

PN2155

The backpackers, leaving aside - the current season, there's a bit of a different arrangement, but you usually directly employ those people, do you?‑‑‑We do. Not many, only two or three, but that's all.

PN2156

So the remainder are through labour hire companies, are they?‑‑‑That's correct.

PN2157

Do you have one labour hire supplier or more than one?‑‑‑More than one.

PN2158

All right. So far as the labour hire workers are concerned - perhaps I'll go back a step. The Pacific Worker Program workers are also through labour hire, are they?‑‑‑No.

PN2159

You employ them directly?‑‑‑I do.

PN2160

So far as the backpackers and the workers through the Seasonal Worker Program, they are employed directly by you and do you make piece work agreements with them directly?‑‑‑That is correct.

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN XXN MR GIBIAN

PN2161

So far as the labour hire workers are concerned, I take it that's dealt with by the labour hire company or it's a matter that the labour hire company works out?‑‑‑That is correct.

PN2162

So far as the labour hire workers are concerned, I assume you inform the labour hire company of what the rate is going to be and then it's - the documentation is between the labour hire - at least as you understand it - between the labour hire company and the worker?‑‑‑That's correct.

PN2163

In terms of the work that's undertaken, you describe that at paragraph 29 and 30. So, generally, the picking work is done starting at either 6.30 or 7.30 in the morning until about 4 pm; is that right?‑‑‑That's correct.

PN2164

And six days a week during the harvest season?‑‑‑That's correct.

PN2165

So the workers would generally - I think that's - well, it's either eight or nine hours a day; is that right?‑‑‑Sometimes, yes.

PN2166

Well, you describe, in paragraph 30, that at the start of the period, in the February/March period, they generally begin work around 6.30 am; is that right?‑‑‑That's correct.

PN2167

And will generally work until about 4?‑‑‑Correct.

PN2168

With half an hour break or something like that?‑‑‑That's correct, for lunch.

PN2169

So that's, I think, nine hours; is that right?‑‑‑Yes.

PN2170

Then, in the later period, I assume because of light in the morning, they start a little bit later, at 7.30; is that right?‑‑‑That's correct.

PN2171

In the April/May period?‑‑‑That's correct.

PN2172

And still knock off at about 4?‑‑‑That's correct.

PN2173

So that would be, with a half an hour break, eight hours?‑‑‑That's correct.

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN XXN MR GIBIAN

PN2174

If they do that six days a week, they'll be working either 48 or 54 hours a week, or thereabouts; is that right?‑‑‑Well, that's general. On Saturdays, they often log off at about 1 o'clock. They don't work for the whole time on the Saturdays, and not all of them work all of those hours all the time.

PN2175

All right. Firstly, leaving Saturdays to one side, the general pattern would be to work from either 6.30 or 7.30 in the morning until 4 pm?‑‑‑Correct.

PN2176

For most of the workers, but if one needed to leave early one day, that might happen; that's generally what you're saying?‑‑‑Correct.

PN2177

On Saturdays, generally, it's a bit of a shorter day; is that right?‑‑‑Yes.

PN2178

So they might only work five or six hours?‑‑‑Correct.

PN2179

Finish a bit earlier?‑‑‑That's correct.

PN2180

All right. Now, in terms of the piece rates, you say that you - that is at paragraph 27 of your statement - that you adjust the piece rates amount every year depending on the recommendations of the Industrial Committee of the VFF and the Fruit Growers Victoria; do you see that?‑‑‑Yes, that's correct.

PN2181

Firstly, at the start of the reason, you set a rate for that year; is that right?‑‑‑That's correct, yes.

PN2182

And it's maintained throughout the season?‑‑‑That's correct.

PN2183

Then you say you usually add an amount of $5 per bin on top of the amount that the VFF or the Fruit Growers Victoria recommends; is that right?‑‑‑Yes, that's correct.

PN2184

Is that because your assessment is that on your farm at least, you need to add that amount to make it a fairer rate consistent with the award?‑‑‑We do that as a bonus for good pickers because we feel that if they're paid more, they'll pay more attention to the way they pick.

PN2185

Do you have your statement in front of you?‑‑‑I do.

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN XXN MR GIBIAN

PN2186

Can you just go to paragraph 27? I just want to make sure I've understood correctly what you're saying?‑‑‑Yes.

PN2187

You see in the first sentence, you say you adjust the piece rate amount every year depending on the recommendation of the VFF or the Fruit Growers Victoria; do you see that?‑‑‑Yes, I do.

PN2188

Then in the second sentence, you say:

PN2189

On top of this recommended amount, we usually add a further $5 per bin.

PN2190

Do you see that?‑‑‑Yes.

PN2191

Then you say:

PN2192

Plus a further bonus of $1 to $5 per bin, depending on the quality of the produce picked without damage.

PN2193

?‑‑‑Correct.

PN2194

All right. Are there two different amounts that you're referring to there, an additional $5 as standard plus a discretionary bonus?‑‑‑Correct.

PN2195

Is that as we understand it?‑‑‑Yes, that's correct.

PN2196

So the first payment or the first figure you refer to is a further $5 per bin; do you see that?‑‑‑Yes, I do.

PN2197

That's a standard rate; is that right?‑‑‑For us it is, yes.

PN2198

That is, you assess that it was necessary for you to add an extra - leaving aside the bonus issue?‑‑‑Yes.

PN2199

It was necessary for you to add an extra $5 on the amount that had been recommended as appropriate for your farm to meet the award obligation; correct?‑‑‑Correct.

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN XXN MR GIBIAN

PN2200

MR DONAGHEY: Objection. That's a mischaracterisation of the answer that this witness gave. She gave an answer which incorporate, "We do this as a bonus for" - - -

PN2201

MR GIBIAN: I object. I've been asking the witness to clarify and my learned friend should not lead the witness's answer in his objection.

PN2202

MR DONAGHEY: (Audio malfunction.) It is a confusing question, confusing (audio malfunction).

PN2203

JUSTICE ROSS: Yes, all right. Let's just take it through - well, let me ask a question, Ms Silverstein, and then you can explain how that comes up. As I understand it, you use the recommended amount by the VFF and Fruit Growers Victoria as the base?‑‑‑That's correct.

PN2204

And you then say, if you go to paragraph 27, you say: "We will usually add a further $5 per bin"?‑‑‑Yes, we do.

PN2205

"Plus a further bonus of $1 to $5 per bin." So that's in addition to the first $5?‑‑‑That's correct.

PN2206

And that second bonus amount, as I understood your evidence, was something that you would provide to, I think as you put it, "as good pickers to improve the quality of the pick"?‑‑‑That's correct. My statement number 33 explains a little bit more of that.

PN2207

I think Mr Gibian's question is not so much about the $1 to $5 per bin that relates to the quality, he's asking you about the first $5 amount?‑‑‑Yes. We add that because we believe we want to bonus our good pickers. That's why we do it, to bonus our good pickers on our orchard. That's why we do it.

PN2208

Mr Gibian?

PN2209

MR GIBIAN: Yes. Can I just ask you about then - in the second sentence of paragraph 27, do you have that in front of you?‑‑‑I do.

PN2210

You refer to as the president just asked you two payments, the first being a $5 that you add to the recommended amount. Do you see that?‑‑‑That's correct.

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN XXN MR GIBIAN

PN2211

And is that an amount that you add for everyone in the amount that you determine at the start of the season, is that right?‑‑‑We do.

PN2212

And then you refer to a second amount which you refer to as a bonus of $1 to $5 per bin depending on the quality of the produce. Do you see that?‑‑‑Yes, I do.

PN2213

That's the bonus, is it, for particularly good people, not the standard?‑‑‑Yes, it is.

PN2214

And the first $5 payment you refer to is part of your standard payment, that is it's not the bonus, the standard that you apply to everyone, correct?‑‑‑We do, because we have good quality fruit and we would like them to understand they are picking good quality fruit; not fruit for the cannery, good quality fruit to go into the first produce.

PN2215

So you make an assessment that on your farm based upon the type of work that is done by the pickers on your farm it is necessary to add the additional $5 to the recommended amount as the standard before you come to the bonus issue, is that right?‑‑‑To get good quality work, yes.

PN2216

Do you make an assessment as to what is necessary for those workers to earn to earn the minimum amount required by the award?‑‑‑Always.

PN2217

And it's on that basis that you add he $5, is that right?‑‑‑No.

PN2218

Well, what do you assess the amount that was required? Sorry, can I just have a moment. All right. You then describe, in paragraph 33 you describe your year around workers doing picking work during the season?‑‑‑Correct.

PN2219

The (indistinct) half season, is that right?‑‑‑Yes.

PN2220

You describe that as their opportunity to make good money and the piece rate is the cream on the cake, that's as you - - -?‑‑‑Correct.

PN2221

The expression you use?‑‑‑That's correct.

PN2222

They appreciate the opportunity to do work that allows them if they work hard to earn more than the hourly rate?‑‑‑Correct.

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN XXN MR GIBIAN

PN2223

And they're motivated to do that work by the possibility of them not just earning the hourly rate, by earning more than the hourly rate. That is as you apprehend it?‑‑‑Yes, definitely.

PN2224

All right. And so long as you continue to offer the piece rate that would allow those workers to earn more than the hourly rate you believe that they would continue to wish to do that work?‑‑‑Yes, that's correct.

PN2225

I think you provided us - you provided some documents?‑‑‑I did.

PN2226

Some pay records. Do you have access to those in front of you?‑‑‑I do.

PN2227

Do you have them in hard copy form or in electronic form?‑‑‑I have the one month of hard copy for my worker Langa Fatui(?) in hard copy, but the rest of them are in electronic copy.

PN2228

I was provided with, or I understand you provided a bundle of pay records which there's 84 pages which I have in electronic form. Do you have that document?‑‑‑Yes, I do. I do.

PN2229

Can you just go firstly just to the end, towards the end of that bundle of documents?‑‑‑Yes.

PN2230

I think they commence at page 76 of the bundle electronically. I don't have actual numbers appearing on them. It's the last seven or eight pages I think?‑‑‑Yes.

PN2231

You will see there's a document headed "Fruit Growers Victoria"?‑‑‑Yes. Yes, I've got those in hard copy too.

PN2232

Sorry, you have got those in hard copy too. The page, the one that is page, the 76th page of the bundle is headed "Piece work picking rates guide for season 2021" under the logo of Fruit Growers Victoria?‑‑‑Yes, I have that.

PN2233

This is the guides that you refer to?‑‑‑The green one for 2021.

PN2234

Green is for 2021, is that right?‑‑‑Blue is 19-20 and yellow is 18-19.

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN XXN MR GIBIAN

PN2235

All right. And then can you go back to the start of that bundle?‑‑‑Yes.

PN2236

The first page - these are individual pay records on a weekly basis?‑‑‑They are.

PN2237

And the first of those is that of Farrah Tufogo(?)?‑‑‑Yes.

PN2238

And it's for the week of 29 March to 4 April this year?‑‑‑That's correct.

PN2239

And this doesn't record hours of work, is that right?‑‑‑That's correct.

PN2240

Do you maintain any records of the hours of work of your piece workers?‑‑‑I did send in the listing of the hours of work of our manager to show that the average - the hours of work of all of the workers. They don't - I don't have it on documentation, but I do have those documents from Napota Semaicka(?) who is our manager, and he works while they are working, so I included those to give you an idea of the hours of work of everybody.

PN2241

What is that document, is that in this bundle?‑‑‑Yes, they were - let me have a look what page number they are - page 20 of 84. That is the example for that week. It has the person's name on it, Napota Semaicka, for the pay period 5 April to 11 April.

PN2242

All right. So that's Napota Semaicka?‑‑‑Napota Semaicka. He is our manager.

PN2243

So he's paid on an hourly basis?‑‑‑He's paid on an hourly rate, a salary rate, so that shows you the hours that he worked, and he actually did one day of the public holiday that was Easter by the look of it, and we paid him for that public holiday rate to unload the fruit bins that were picked from the day before.

PN2244

So he worked a public holiday hours for which he was paid $23.59 an hour, is that right?‑‑‑He worked - of those hours that he worked eight of them were public holiday, so he was paid extra, another $23.59 per hour for those.

PN2245

All right. You don't separately maintain - do you separately maintain any record of the hours of work of the piece workers?‑‑‑No. They all start work when the sun rises to pick the fruit and they finish around 4 o'clock. So we don't have their exact hours. They don't put their hours on their - on their timesheets per se, they put the bins on their timesheets. When you have a look at some of these timesheets you will see that they have got a mixture of hours and bins, because sometimes they were doing other things apart from picking.

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN XXN MR GIBIAN

PN2246

So if you go back to the first page of this bundle, Farrah Tufogo - - -?‑‑‑Farrah Tufogo, yes.

PN2247

- - - in that week of 29 March to 4 April that worker earned - filled three bins at $50?‑‑‑Yes, three normal sized bins and 17 small bins.

PN2248

What's the difference between those bin sizes?‑‑‑I gave another document with the bin sizes. Some of the bin sizes are three-quarter bins or half bins.

PN2249

How do you - sorry, so some of the bins are worth $40 and some of them are worth $50. Is that right?‑‑‑That's correct, yes. That's what we pay them.

PN2250

So that week that person earned $830?‑‑‑Correct.

PN2251

And we see the same throughout the piece workers throughout the period that you've provided. Correct?‑‑‑Yes, that's right.

PN2252

And you agree that the pattern of work that you described to us was working from sunrise, so 6.30 or 7.30 in the morning, till 4 pm, with a half an hour break?‑‑‑Yes, that's right.

PN2253

Six days a week, or at least five and a half days a week. Correct?‑‑‑Yes, correct.

PN2254

And either eight or nine hours per day?‑‑‑Yes, but it looks like this lady might not have worked the whole of those hours. 20 bins wasn't very many bins for a whole week's work, so she probably didn't work a whole week.

PN2255

You don't know that at the moment, you're speculating. Is that right?‑‑‑No, I am speculating. My husband and the manager take account of when the workers start work and when the workers finish work.

PN2256

That is they do maintain a record of hours of work. Is that right?‑‑‑They know it. They don't maintain a record. They know it, but they don't maintain it. they don't write it down.

PN2257

Anyway, so far as the first worker is concerned on page 1, the earnings of $830, you speculate a lower week. The next worker, Ayesa Simeka, is the ‑ ‑ ‑ ?‑‑‑Isiah, yes.

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN XXN MR GIBIAN

PN2258

Isiah, sorry. Did some picking work at an hourly rate, is that right? Eight and a half hours?‑‑‑Isiah did some at hourly rate and some at full rate, which means the hourly rate, as I explained in my statement on item number 25, early in the season sometimes for a few days when they're colour or size picking, we pay them an hourly rate.

PN2259

I understand. And that person also picked 17 small bins at $40 a bin. Is that right?‑‑‑That's correct.

PN2260

For $890 for the week?‑‑‑Yes.

PN2261

I just want to suggest to you - and I'm not going to ask you to go through the documents, but on the pattern of hours that you've described in your statement, in order to earn 15 per cent more than the hourly rate, an individual worker would have to earn at least $1368 per week, and that in fact only one of the payslips that you've produced does a worker earn more than that amount of money?‑‑‑We do not underpay our workers. We pay our workers by the bin rate, and if they do not earn the rate per hour, then we pay them an hourly rate. We don't underpay our workers.

PN2262

We're right in understanding the amount you paid the workers in the period of time that you've produced records for is included in these payslips. Correct?‑‑‑Correct. You can't give an overhead statement saying everyone has worked 38 to 40 hours a week.

PN2263

I'm just asking you - I just need to put to you that on pattern of hours that you have described to us as the pattern of hours worked by these employees, they would have to earn at least $1368 to earn 15 per cent more than the hourly rate, and that that is only the case in one of the entries on the payslips that you've provided to us, and that's the conclusion we draw from looking at those payslips?‑‑‑I think that's incorrect.

PN2264

All right. That's the cross‑examination.

PN2265

JUSTICE ROSS: Ms Burke, any questions?

PN2266

MS BURKE: No questions, thank you, your Honour.

PN2267

JUSTICE ROSS: Mr Donaghey, any re‑examination?

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN XXN MR GIBIAN

PN2268

MR DONAGHEY: Just one part, your Honour.

RE-EXAMINATION BY MR DONAGHEY [4.27 PM]

PN2269

MR DONAGHEY: Ms Silverstein, you referred to when you were being cross-examined your motivation for increasing the amount you pay for a bin as "bonusing our good pickers on our orchard" and you explained that you wished to let your pickers know that they were picking good produce. Do you remember giving that answer?‑‑‑Yes, that's correct.

PN2270

Then you used an expression which I don't think my learned friend clarified, you said you wanted your produce to go to first produce and not to the cannery. Can you explain to the tribunal what you meant by that expression "first produce"?‑‑‑We pay the pickers extra per bin because the first produce, the first rate pick goes to - gets the highest return per bin, and the highest return per bin is if the pickers are very careful picking the fruit.

PN2271

I understand your answer. Thank you very much.

PN2272

Nothing further, your Honour.

PN2273

JUSTICE ROSS: Thank you for your evidence, Ms Silverstein. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [4.48 PM]

PN2274

JUSTICE ROSS: Can we now deal with the final witness, Mr Trewin.

PN2275

MR GIBIAN: Can I tender that bundle before ‑ ‑ ‑

PN2276

JUSTICE ROSS: Yes. I will mark the bundle - we will get you to send it in electronically as well, Mr Gibian, just to - that's the material provided by Ms Silverstein in response to the notice to produce.

PN2277

MR GIBIAN: I'm sorry, did your Honour mark that?

PN2278

JUSTICE ROSS: Yes. It's exhibit AWU22.

*** CATHERINE FREDERIC CRISTINE SILVERSTEIN RXN MR DONAGHEY

EXHIBIT #AWU22 BUNDLE OF DOCUMENTS PRODUCED BY CATHERINE SILVERSTEIN

PN2279

MR GIBIAN: Thank you, your Honour.

PN2280

JUSTICE ROSS: I'm sorry if I didn't. I meant to.

PN2281

THE ASSOCIATE: Mr Trewin, could you please state your full name for the Commission.

PN2282

MR TREWIN: Glen Clifford Trewin.

<GLEN CLIFFORD TREWIN, AFFIRMED [4.29 PM]

EXAMINATION-IN-CHIEF BY MR DONAGHEY [4.29 PM]

PN2283

MR DONAGHEY: Mr Trewin, have you made a witness statement in this proceeding?‑‑‑Yes, I have.

PN2284

And does that witness statement consist of four pages and 26 paragraphs?‑‑‑Yes, it does.

PN2285

It has no exhibits to it. Is that correct?‑‑‑Correct.

PN2286

And electronically it's on Court Book 2966.

PN2287

Do you have any corrections to make to your statement?‑‑‑No, I do not.

PN2288

Is your statement true and correct to the best of your knowledge?‑‑‑Yes, it is.

PN2289

I tender that statement, your Honour.

PN2290

JUSTICE ROSS: I will mark Mr Trewin's statement as exhibit NFF6.

EXHIBIT #NFF6 STATEMENT OF GLEN TREWIN

PN2291

MR DONAGHEY: Nothing else for this witness, your Honour.

*** GLEN CLIFFORD TREWIN XN MR DONAGHEY

CROSS-EXAMINATION BY MR GIBIAN [4.30 PM]

PN2292

MR GIBIAN: Mr Trewin, can you see and hear me adequately?‑‑‑Yes, I can.

PN2293

This is a very big business, I think $25 million of turnover or something of that nature. Correct?‑‑‑Correct, yes.

PN2294

And you're the financial controller?‑‑‑Correct.

PN2295

I take it - and I'm not being critical in this respect - but you're not involved in the day to day management of the staff at the farms?‑‑‑The farms corporations, no.

PN2296

That is you manage other staff of a more administrative ‑ ‑ ‑ ?‑‑‑ ‑ ‑ ‑ administration staff, that's correct.

PN2297

You've set out the range of produce that are grown: lettuce, spinach, broccoli, and baby broccoli, I think. You only use piece workers for the - piece rates, I should say - for the baby broccoli. Is that right?‑‑‑That is correct.

PN2298

That is you're content for the other produce to be picked by workers on hourly rates?‑‑‑That is correct.

PN2299

And so far as the baby broccoli picking workforce is concerned, that's seasonal, and you get all the workers - or most of the workers, I think, from Thailand. Is that right?‑‑‑That's currently correct, yes.

PN2300

Sorry, has that position changed in recent times?‑‑‑No.

PN2301

That is that has been the case for some years?‑‑‑I believe so, yes. Since I've been here, yes.

PN2302

When you say you believe so, that's not a matter that's reflective of your degree of direct involvement in it. is that right?‑‑‑I don't know what occurred prior to my employment.

PN2303

*** GLEN CLIFFORD TREWIN XN MR DONAGHEY

*** GLEN CLIFFORD TREWIN XXN MR GIBIAN

Of course. And at least so far as you understand it - sorry, I withdraw. The employees from Thailand, are they through labour hire companies, or do you directly employ them?‑‑‑Directly employ.

PN2304

And do you get the same employees coming back multiple years?‑‑‑Yes.

PN2305

And they're generally good workers?‑‑‑Yes, very good, yes.

PN2306

All right. And I think you've indicated that - this is over at paragraph 20 and 21 - the current rate is think is - sorry, 24 - is 40 cents per bunch. Is that right?‑‑‑40 cents per bunch, correct.

PN2307

And for those workers doing the baby broccoli picking, the company, does it, maintains records of their hours of work and the amount of bunches picked in any particular week?‑‑‑We do, yes.

PN2308

That is you have start-finish times and the produce picked for the purpose of calculating their payments?‑‑‑Correct.

PN2309

And for monitoring the piece rates that you are paying. Is that right?‑‑‑Yes.

PN2310

You produced some documents, I think, or someone from your company did, with reference to those?‑‑‑Yes. Yes, I do.

PN2311

If I get a moment to get them up?‑‑‑That's okay.

PN2312

It's a bundle, I think, of 199 pages. It starts with a payslip for an individual, Mechu Befuku, I'm going to - pronouncing that correctly. Do you have that bundle?‑‑‑No, but I can. One sec, sorry.

PN2313

Of course?‑‑‑I don't have the payslip, that's all. Sorry, won't be a sec.

PN2314

I don't know whether you - it would be helpful if you had it, and I thought this had hopefully be arranged in the same form that was provided to us. I have ‑ ‑ ‑ ?‑‑‑One second. What week ending are you looking at? Is it the week ending 17th or the 3rd, or the 10th of the 3rd; the 3rd of the 3rd, or the 31st of the 3rd?

*** GLEN CLIFFORD TREWIN XXN MR GIBIAN

PN2315

I have a bundle of documents which is 199 pages long, the first page of which has an address for an individual, Mechu Befuku?‑‑‑Yes.

PN2316

And it's for a pay period from 25 February to 3 March?‑‑‑Okay. Yes, I've got those.

PN2317

Do you have - same form as that?‑‑‑Yes.

PN2318

All right. Not the single payslip, do you have the bundle of 199 pages which has that document at the start?‑‑‑I've got them, but not in that bundle. I've got them all together, yes.

PN2319

All right. We will see how we go, it might be a bit difficult if you don't have it in the same form, but we will see how we go. Do you have that page, at least?‑‑‑Yes, I do.

PN2320

So that's the form that the payslip for a piece work employee. Is that right?‑‑‑That is correct.

PN2321

And it records the total number of some 3080 bunches that were picked ‑ ‑ ‑ ?‑‑‑Correct.

PN2322

‑ ‑ ‑ that employee that week. Is that right?‑‑‑Yes.

PN2323

It's a bunch ‑ ‑ ‑ ?‑‑‑At 40 cents a bunch. Correct.

PN2324

So this doesn't record the hours of work, but the company separately maintains a record of the hours of work of the employees. Is that right?‑‑‑We don't record the physical hours that they work for that particular week. We pay them per bunch.

PN2325

Yes. That is they're not reflected on the payslip, but you separately have a record of the hours of work. Is that right?‑‑‑No.

PN2326

I think I asked you that earlier, and you said you did maintain a record of the hours of work?‑‑‑That was incorporated with the original question as to whether we maintain bunches. I apologise.

*** GLEN CLIFFORD TREWIN XXN MR GIBIAN

PN2327

So to the extent you said you did, that was wrong, you don't maintain hours of work at the moment. Is that right?‑‑‑Physical clock on and clock off for the piece rate workers, no.

PN2328

Well, when you say - do you maintain any record of the hours of work of those employees?‑‑‑No, because we pay them on a piece rate.

PN2329

Yes, I understand. So you don't know how many hours any of them have actually worked. Is that right?‑‑‑Correct.

PN2330

All right. And if you just go - the second page of the document I have is a payslip for another individual, Cantana Kyunae?‑‑‑Yes.

PN2331

Do you have that?‑‑‑Yes, I do.

PN2332

For the same period, 25 February to 3 March. Do you see that?‑‑‑Correct, yes.

PN2333

That individual also picked, coincidentally, 3080 bunches?‑‑‑Correct.

PN2334

But only received 35 cents a bunch?‑‑‑Correct.

PN2335

What's the reason why there's different rates for different employees?‑‑‑Because this particular employee was a new employee. Until they became competent, then they would receive 40 cents per bunch.

PN2336

So this person picked exactly the same number of bunches as the first employee. Is that right?‑‑‑Coincidentally, correct.

PN2337

But despite picking exactly the same number, they received 5 cents a bunch less?‑‑‑Correct.

PN2338

How long had Katana Kyunae been working at the farm by 25 March - 25 February, I should say?‑‑‑I don't know what her particular start date was, I'm sorry.

PN2339

Do you know - you don't know that person. I assume you don't know ‑ ‑ ‑ ?‑‑‑I know of that person because I pay that person. I don't know that particular person's start date.

*** GLEN CLIFFORD TREWIN XXN MR GIBIAN

PN2340

That is you've seen her name on pay records. Have you otherwise met her or had anything to do with her?‑‑‑No.

PN2341

JUSTICE ROSS: Just before you leave that, Mr Gibian.

PN2342

Mr Trewin, you can see the year to date amount on that payslip, 8500?‑‑‑Yes.

PN2343

That suggests that she has been employed for a little over eight weeks?‑‑‑Potentially. I can't confirm that, but potentially.

PN2344

MR GIBIAN: How long do you pay people 35 instead of 40 cents per bunch?‑‑‑We try to use a similar circumstance a level 1 worker to a level 2 worker. When people start on the farm they start on level 1, and after approximately - I think it's six months - we move them to level 2 because they become more competent in their actual tasks that they do.

PN2345

How long ‑ ‑ ‑ ?‑‑‑Sorry?

PN2346

How long is the baby broccoli harvest season?‑‑‑We grow baby broccoli for 12 months of the year.

PN2347

Sorry, can you just repeat that answer?‑‑‑We grow baby broccoli for 12 months of the year.

PN2348

And how long are the harvest periods? The whole time?‑‑‑We harvest for 12 months of the year, correct.

PN2349

Can you go to the fifth page of the bundle of payslips?‑‑‑Yes.

PN2350

There's a payslip for a Feme Nguyet Huang; see that?‑‑‑Yes.

PN2351

That person is still being paid 35 cents despite having year to date earnings of 22,000?‑‑‑Correct.

PN2352

$23,000?‑‑‑Yes.

*** GLEN CLIFFORD TREWIN XXN MR GIBIAN

PN2353

So you're still paying that person at 35 cents a bunch?‑‑‑Correct.

PN2354

On that rate been there at least close to six months?‑‑‑Potentially. I don't know their start dates off the top of my head, I'm sorry.

PN2355

All right. Can I just go back to your statement for a moment?‑‑‑Yes.

PN2356

Are we right in understanding you haven't mentioned that you pay people 35 cents in your statement; is that correct?‑‑‑Correct.

PN2357

Can you go back to the bundle?‑‑‑Yes.

PN2358

If you go through - I don't know whether you have it in the same form that I have, but it starts at page 32?‑‑‑That would be the next date, yes.

PN2359

No, I have a document which is headed "Timesheet Baby Broc Team". Do you have those, a document in that form? It's a table with coloured lines on it?‑‑‑Yes. Yes, I do.

PN2360

I don't know whether the Bench has it. In the form I have it, it starts at page 32 of the electronic bundle.

PN2361

JUSTICE ROSS: I'm not sure of the page number, but I've got it. It's got different colours, blue, dark blue, light blue, green?‑‑‑Blue and yellow lines over the names, yes.

PN2362

MR GIBIAN: These are summary documents that are prepared, are they, of the work of the individuals?‑‑‑Correct.

PN2363

I have - and it requires going through the - so if you've got that page, the first entry is for the week ending 4 March 2021; do you see that?‑‑‑That's not the document that I've got that's got those blue lines on it. Oh, those ones, sorry, I beg your pardon, yes. Yes, it's okay, yes, I'm looking at that.

PN2364

So there's a summary for each day?‑‑‑Yes, correct.

PN2365

The first table is for 25 February and I think no work was done that day; is that right?‑‑‑4 March, yes, correct.

*** GLEN CLIFFORD TREWIN XXN MR GIBIAN

PN2366

Sorry?‑‑‑I've got that page you were talking about, yes.

PN2367

It's got at the top "Labour Hours Total"; do you see that?‑‑‑Yes.

PN2368

And underneath "Week ending 4 March" and underneath that "Bulmer Team"; do you see that?‑‑‑Yes, sorry, two secs. That would be that one there. Yes.

PN2369

To the left of the blue box which has the words "Bulmer Team" in it, there's a date 25 February 2020; do you see that?‑‑‑Yes, correct, yes.

PN2370

There's then the list of names of the workers; do you see that?‑‑‑Correct, yes.

PN2371

You have no entries on that day, so I take it that was, I assume, a weekend and not part of the working period; is that right?‑‑‑They didn't cut - they didn't pick baby broccoli on that day, correct.

PN2372

You will see that on the right-hand side, the second-last column, there's a series of numbers there?‑‑‑Yes.

PN2373

They are cumulative total numbers, are they, over a period?‑‑‑That's the weekly cumulative numbers, correct.

PN2374

Then if you go down to the next day?‑‑‑Yes.

PN2375

It's the bottom half of the same page as I've got it?‑‑‑Yes.

PN2376

It's the following day, 26 February?‑‑‑Yes.

PN2377

Then there's entries for the amount that they picked and the total picked by each individual of bunches and crates; do you see that?‑‑‑Correct, yes.

PN2378

You see there's an entry for hours to be entered, which isn't entered in this instance; do you see that?‑‑‑Correct. Yes, I do, yes, yes.

*** GLEN CLIFFORD TREWIN XXN MR GIBIAN

PN2379

All right. Now, I'm not sure how I'm going to navigate you to this necessarily but it's page 107 of the bundle as I have it. It's in a landscape format but it's the same form of table?‑‑‑Yes.

PN2380

For the week ending 17 March. Perhaps I should just ask, do you have any - - -?‑‑‑No, it's all right.

PN2381

Do you have any role in the - - -?‑‑‑I've got it, that's okay.

PN2382

Do you have any role in supervising or preparing these documents or is it done by someone else?‑‑‑This particular document is done by the harvest supervisor at the end of the day.

PN2383

Do you have the one that's in a landscape format, as I've got at least, for 17 March 2021?‑‑‑Yes, I have.

PN2384

So the first entry, the first day entry for that is 11 March; do you see that?‑‑‑Yes.

PN2385

And it records the bunches and the total pick in the same way, do you see that, for each employee?‑‑‑Correct.

PN2386

On this occasion, there's a record of the hours worked; do you see that?‑‑‑Correct.

PN2387

And I think, except some don't appear to be working because they didn't pick anything and have no hours recorded, but the others all worked five and a half hours, or there are, I think - - -?‑‑‑One did four and a half hours, yes.

PN2388

(Indistinct) and a half hours; do you see that?‑‑‑Yes, yes, I've got it.

PN2389

So the total - if you go down, it's over the page as I have it - the total pick for each individual - sorry, for all the individuals - was 9800 bunches for that day?‑‑‑Correct.

PN2390

And the total hours worked, I think, is 168.5 hours?‑‑‑Correct, yes.

*** GLEN CLIFFORD TREWIN XXN MR GIBIAN

PN2391

For that day. All right. That indicates to me that, for that day, for 11 March 2021, that across the whole group - I must say, I'm assuming that they were paid 40 cents a bunch and obviously some of them may have been paid 35 cents a bunch, but at 40 cents a bunch on those hours, the total - the amount per hour per employee is $23.56. That's the average hourly rate for the employees for those dates. I'm not asking you to check the maths on that?‑‑‑You can make that assumption, but that's not correct.

PN2392

Well, that's a calculation of multiplying 9800 by 40 cents and dividing it by the number of hours; you understand the calculation that I have done?‑‑‑I do understand that, but the hours that are actually listed on that sheet is for a different task. That is not actually picking baby broccoli, it's a different task. So, on that particular day, they picked baby broccoli, as you can see, tag number 7 cut seven crates of baby broccoli, but then they completed another task.

PN2393

All right?‑‑‑(Audio malfunction.)

PN2394

I'm not sure what that was. So, in addition to doing picking work, so if you just take a particular employee?‑‑‑Number 7, yes.

PN2395

Vicky Tua, if that's the first one?‑‑‑Correct.

PN2396

Picked 280 bunches?‑‑‑Bunches, yes.

PN2397

And did some separate work in addition to that for five and a half hours; is that right?‑‑‑That is correct. At what they were paid the hourly rate for, correct.

PN2398

And we can't tell from this and you can't tell us how many hours was worked for the 280 bunches?‑‑‑No, I cannot.

PN2399

We're right in understanding from that that the company doesn't maintain any records that would allow anyone to check what hourly rate - what amount per hour was earnt by picking employees when they were doing the picking task?‑‑‑If we don't know how many hours they actually worked picking, correct.

PN2400

That is, no one could go back and look at the company's records and work out the effective hourly rate that the picking employees earned?‑‑‑You could say that.

PN2401

It's correct, isn't it, that is there's no records that we could go and look at to - - -?‑‑‑There's no clock on - there are no clock on and clock off times, that is correct.

*** GLEN CLIFFORD TREWIN XXN MR GIBIAN

PN2402

And I think you agreed - well, you told me earlier that there was no hours records at all, is that right?‑‑‑That is correct. That's correct, yes.

PN2403

And the consequence of that is there's no way that anyone could go back and check what the effective hourly rate of the piece workers employees who were picking the baby broccoli is, is that right?‑‑‑Correct, yes.

PN2404

JUSTICE ROSS: You put yourself on mute, Mr Gibian.

PN2405

MR GIBIAN: Apologies. That's the cross-examination. Thank you, Mr Trewin?‑‑‑Thank you.

PN2406

JUSTICE ROSS: Ms Burke, any questions for this witness?

PN2407

MS BURKE: No, thank you, your Honour.

PN2408

JUSTICE ROSS: Mr Donaghey, any re-examination?

PN2409

MR DONAGHEY: Not for this witness, your Honour.

PN2410

JUSTICE ROSS: Thank you. Thank you for your evidence, Mr Trewin, you're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [4.52 PM]

PN2411

JUSTICE ROSS: Mr Gibian, was there anything in the material that you want to tender that relates to Mr Trewin?

PN2412

MR GIBIAN: Yes. I think we would tender the first five pages of that bundle.

PN2413

JUSTICE ROSS: All right. Perhaps if you can submit it separately and once you do that - just bear with me for a moment - once you have submitted that we will mark that exhibit AWU23.

PN2414

MR GIBIAN: Thank you.

*** GLEN CLIFFORD TREWIN XXN MR GIBIAN

PN2415

JUSTICE ROSS: I think that concludes the witnesses for today. Can we turn to two questions in relation to tomorrow. The first is Mr Houston and the proposal was (audio malfunction) an opportunity to reflect on it, but the supplementary statement will be filed on Friday evening, and Mr Houston would be cross-examined at 9.30 on Monday morning. If it's any consolation, Ms Burke, Mr Gibian is already in lockdown, so I am assuming he won't be doing much over the weekend, and it looks like Victoria will be going into a five day lockdown commencing at midnight tonight.

PN2416

MS BURKE: It's a pretty grim view of the consolation, your Honour. Yes, thank you.

PN2417

MR GIBIAN: I haven't had a chance to talk to Ms Burke again. I think she did have a potential issue with Monday. I don't speak for her in that respect. Can I make a polite enquiry as to whether or not Tuesday morning was a possibility for the hearing of Mr Houston's evidence? If that's not convenient or available for the Bench I would understand it of course. It just might - in addition to having to deal with the other case on Monday might provide me with more of an opportunity, and I don't think, at least for my part, I wanted to interrupt the further progress of the directions that were contemplated. If it's not available for the Bench I understand - - -

PN2418

JUSTICE ROSS: Bear with me for a minute, I am just going to have a quick offline chat with my colleagues. I know that I can do it, but I am not sure of the availability of the other two.

PN2419

MR GIBIAN: I understand.

PN2420

MS BURKE: I might just address, just note I have a pretty significant personal difficulty on Monday, but if that's the only day I will do my best to rearrange things. The Tuesday would certainly be preferable.

PN2421

JUSTICE ROSS: All right, we will see how we go. Just bear with us. All right. We can accommodate 9.30 on Tuesday. Do you know - can I check your availability, Mr Dalton, and that of your witness?

PN2422

MR DALTON: I'm available and I understand Mr Houston is also available. He indicated to me at lunchtime that he was available Monday and Tuesday.

PN2423

JUSTICE ROSS: All right.

PN2424

MR DALTON: So unless you hear otherwise, your Honour, I am assuming that will be okay.

PN2425

JUSTICE ROSS: All right. Well, we will proceed on that basis. The other matter, I understand that the representative from 88 Days is back with us. Is that right? It's Mr Bretherton, is that right?

PN2426

MR BRETHERTON: Yes, I'm here.

PN2427

JUSTICE ROSS: All right. Mr Bretherton, look as I understand the situation and your request it's briefly this, that you have received the material provided by Mr King, I think that you had indicated that you wish to cross-examine him, and that as I understand it from my associate you wanted his evidence moved to give you more time to examine that material. Is that the nub of it?

PN2428

MR BRETHERTON: Yes, that's correct. I spoke to Jess from your office today and I just got the email today with the evidence he provided me.

PN2429

JUSTICE ROSS: Yes. I am afraid there is not - on the timeframe we don't have a lot of flexibility about moving people. I make two observations, that we can - I will ask - I imagine this will be fine, but I will check with Mr Dalton in a moment - I think the most that we could do would be to say that Mr King, the commencement of his evidence would not be before 1 pm tomorrow. That would provide sufficient time to deal with the other witnesses. I think, Mr Bretherton, I think the issue is that the AWU has also had this material for a number of days, and they intend to cross-examine Mr King. As we indicated earlier a witness can only be cross-examined about the same subject matter once, or the same issues once. So you won't be able to ask the same questions Mr Gibian is asking. So Mr Gibian will go first in the cross-examination, and then it will really be if there is anything additional that you wanted to ask. Do you understand?

PN2430

MR BRETHERTON: Yes, I'm aware of that, and that's - - -

PN2431

JUSTICE ROSS: Yes. So to some extent, the extend there will be a forensic examination of the material provided in response to the notice to produce it's likely Mr Gibian will take care of that, and then you will see what's left over. All right?

PN2432

MR BRETHERTON: Yes, that's fine.

PN2433

JUSTICE ROSS: Okay. All right.

PN2434

SPEAKER: Your Honour, Mr Bretherton has asked to speak to us this afternoon and I am happy to speak to him about - - -

PN2435

JUSTICE ROSS: All right, that will be helpful, thank you. All right, thank you very much. So the only change to tomorrow we will begin at 9.30, we will deal with the remaining NFF witnesses, and then not before 1 pm, so if Mr King is available at 1 pm, we will deal with his evidence, and of course we won't be dealing with Mr Houston, we will deal with his oral evidence at 9.30 on Tuesday. Okay.

PN2436

SPEAKER: Thank you, your Honour.

PN2437

JUSTICE ROSS: Thank you for your assistance. I know there's no ideal solution to any of these issues, but I appreciate the spirit in which it's sought to be (audio malfunction). We will adjourn until 9.30 tomorrow morning.

ADJOURNED UNTIL FRIDAY, 16 JULY 2021 [5.01 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ELSA MARGARET UNDERHILL, AFFIRMED........................................... PN1102

EXAMINATION-IN-CHIEF BY MR GIBIAN................................................ PN1102

EXHIBIT #AWU16 REPORT OF DR UNDERHILL DATED 19/03/2021... PN1112

EXHIBIT #AWU17 REPLY REPORT OF DR UNDERHILL DATED 30/06/2021 PN1117

CROSS-EXAMINATION BY MR DALTON................................................... PN1129

EXHIBIT #AFPA1 BUNDLE OF MATERIAL USED FOR THE CROSS-EXAMINATION OF DR UNDERHILL................................................................................................ PN1503

RE-EXAMINATION BY MR GIBIAN............................................................. PN1506

THE WITNESS WITHDREW........................................................................... PN1545

ANNE KATHLEEN REARDON, AFFIRMED................................................ PN1600

EXAMINATION-IN-CHIEF BY MR DONAGHEY....................................... PN1600

EXHIBIT #NFF1 WITNESS STATEMENT OF ANNE REARDON............ PN1608

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN1610

RE-EXAMINATION BY MR DONAGHEY.................................................... PN1672

THE WITNESS WITHDREW........................................................................... PN1680

ANTHONY THOMAS KELLY, AFFIRMED.................................................. PN1683

EXAMINATION-IN-CHIEF BY MR DONAGHEY....................................... PN1683

EXHIBIT #NFF2 WITNESS STATEMENT OF ANTHONY KELLY......... PN1692

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN1694

THE WITNESS WITHDREW........................................................................... PN1784

EXHIBIT #AWU18 FIRST PAGE OF THE BUNDLE OF PRODUCED MATERIAL............................................................................................................................... PN1787

BENJAMIN WILLIAM ROGERS, AFFIRMED............................................. PN1795

EXAMINATION-IN-CHIEF BY MR DONAGHEY....................................... PN1795

EXHIBIT #NFF3 WITNESS STATEMENT OF BENJAMIN WILLIAM ROGERS PN1808

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN1817

EXHIBIT #AWU19 NEWSLETTER/PRESS RELEASE WITH GREEN BOX "GROWERS AND FARM WORKERS ASKED TO HELP PROTECT PIECE RATES".......... PN1875

EXHIBIT #AWU20 SURVEYMONKEY DOCUMENTS HEADED "NFF PIECE RATES IN AGRICULTURE SURVEY".............................................................................. PN1967

THE WITNESS WITHDREW........................................................................... PN1972

BRENT RUSSELL MCCLINTOCK, AFFIRMED......................................... PN1975

EXAMINATION-IN-CHIEF BY MR DONAGHEY....................................... PN1975

EXHIBIT #NFF4 STATEMENT OF BRENT MCCLINTOCK AS CORRECTED PN2005

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN2006

THE WITNESS WITHDREW........................................................................... PN2123

EXHIBIT #AWU21 BUNDLE OF DOCUMENTS PROVIDED BY BRENT MCCLINTOCK............................................................................................................................... PN2135

CATHERINE FREDERIC CRISTINE SILVERSTEIN, AFFIRMED.......... PN2138

EXAMINATION-IN-CHIEF BY MR DONAGHEY....................................... PN2138

EXHIBIT #NFF5 WITNESS STATEMENT OF CATHERINE SILVERSTEIN PN2147

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN2149

RE-EXAMINATION BY MR DONAGHEY.................................................... PN2268

THE WITNESS WITHDREW........................................................................... PN2273

EXHIBIT #AWU22 BUNDLE OF DOCUMENTS PRODUCED BY CATHERINE SILVERSTEIN.................................................................................................... PN2278

GLEN CLIFFORD TREWIN, AFFIRMED..................................................... PN2282

EXAMINATION-IN-CHIEF BY MR DONAGHEY....................................... PN2282

EXHIBIT #NFF6 STATEMENT OF GLEN TREWIN................................... PN2290

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN2291

THE WITNESS WITHDREW........................................................................... PN2410