PN2438

JUSTICE ROSS: Good morning. Can I raise one preliminary matter before we go to the first witness. We have received the second witness statement of Mr King. Has everybody else received that?

PN2439

MR GIBIAN: I have, although only relatively recently, I assume the same time as the Commission.

PN2440

JUSTICE ROSS: Yes. Ms Burke, have you got it?

PN2441

MS BURKE: I don't have it, but it may have been sent to my instructor and, if it hasn't, I'll let people know.

PN2442

JUSTICE ROSS: All right, we will assess the timing of Mr King's evidence once you've had an opportunity to look at the witness statement.

PN2443

There's another matter in relation to Mr King's evidence that I wanted to raise and that is the non-compliance with the notice to produce. Now, I'll hear from the union parties if they have an issue with it, but I certainly do. If you look through the background to this matter, we issued a statement on 2 July indicating that applications for notices to produce had been filed and that anyone who was opposing those applications should file a submission by 4 pm on Tuesday, 6 July. The AFPA filed a submission and did not oppose the notices to produce. There was a mention on 7 July. No party opposed the notices to produce.

PN2444

We issued a statement on 7 July granting the applications with compliance by 9.30 am on Wednesday, 14 July. There has been correspondence from Edge Legal indicating that, essentially, they are not going to comply with order (4). I have reviewed the material in response to orders (1) and (2). I can't read it because of the colours, I don't understand it and it's not in compliance with orders (1) to (3). Now, I had been working on the assumption, because it hadn't been corrected, that the representatives of AFPA, as this was their witness, were representing Mr King, but apparently not. So, my first question is why wasn't I informed that you weren't representing them? Mr Dalton?

PN2445

MR DALTON: Your Honour, Mr King's employed by Costa Group.

PN2446

JUSTICE ROSS: I know who he's employed by. You're calling him as a witness.

PN2447

MR DALTON: Yes.

PN2448

JUSTICE ROSS: I was proceeding on the not unreasonable assumption that if you had an objection to the notice to produce, you would have brought it to our attention.

PN2449

MR DALTON: My client didn't have an objection to the notice to produce, your Honour. It's called a witness from a third party, being Costa Berry Group.

PN2450

JUSTICE ROSS: And they're not a member of the AFPA?

PN2451

MR DALTON: No, I understand that they are a member of the AFPA.

PN2452

JUSTICE ROSS: And you're representing the AFPA.

PN2453

MR DALTON: Yes. Well, your Honour - - -

PN2454

JUSTICE ROSS: Well, where is Edge Legal? Are they in these proceedings? When are they going to come along and argue in support of setting aside that part of the order and to argue they are in compliance with the notice to produce?

PN2455

MR DALTON: I don't know, your Honour. Edge Legal - - -

PN2456

JUSTICE ROSS: Well, until that's done, why would we hear any evidence from Mr King?

PN2457

MR DALTON: Well, if your Honour wants to require Mr King to - - -

PN2458

JUSTICE ROSS: I'm not requiring Mr King, I'm requiring his legal representatives to come along and explain why they haven't complied with orders 1 to 3, and I see the force on the face of it of the argument about order 4, and we can hear them about that, but their document doesn't comply with 1 to 3.

PN2459

MR DALTON: Your Honour, I am not instructed to speak for Mr King, but I hear what you're saying and - - -

PN2460

JUSTICE ROSS: Well, how do we address it?

PN2461

MR DALTON: I'm assuming that Mr King's lawyers are not here, they're not participating in this Microsoft Teams hearing. We will take steps to bring that matter to their attention as soon as possible. We have got their contact details from that letter I think.

PN2462

JUSTICE ROSS: All right, and we will interpose then and we will at that point - we will hear now from Mr Gibian and Ms Burke. It may be that they're satisfied with the material that's been provided and they can understand it. It's so small I can't read it. I have printed it out so it's nearly a metre big, but it's not making much difference, but that might be, and the colours make it sort of impossible on the left panel for me to make out what that's about, but I accept I am getting old, Mr Dalton, and - - -

PN2463

MR DALTON: No, I had the same problem.

PN2464

JUSTICE ROSS: There may be a way of changing the colours, and I don't know the forensic purpose of it. So let's hear from them first, but I wanted to let you know of my apprehension and how it may affect your calling of Mr King. Mr Gibian or Ms Burke - because what I want to avoid, I don't want Mr King brought in and then we start it off by an argument about whether he's complied and everything else, and we may not have his lawyers representing him at that point, so I want to find out what the issues are, if any, about the notice to produce.

PN2465

MR GIBIAN: Thank you, your Honour. For our part we are not satisfied with the production that has occurred or not occurred. As I understand it the union endeavoured to serve the order for production on Mr King through the solicitors for the AFPA and was informed that they would not accept service on his behalf, despite having called him as a witness, that is after the orders were made, and the only response we received was the correspondence that Your Honour has seen. As we understand the document that was produced, leaving aside the difficulty in reading it, as we understand it it is not what was sought. It (a) only relates to, as we read it, part of the business to deal with billing of berries, and secondly it is not what was sought, that is it purports to be some summary document rather than any actual records which will allow anything to be checked or verified.

PN2466

JUSTICE ROSS: Ms Burke?

PN2467

MS BURKE: Thank you, your Honour. The UWU's position is the same as the AWU.

PN2468

JUSTICE ROSS: All right. Well, I will leave it to your instructors, Mr Dalton, to see if we can track down Edge Legal. I might say, Mr Gibian, if you had encountered a problem with service it might have been the wiser course to advise the Commission of that. That would have appraised us of the fact that the AFPA was not representing Mr King and we could have tried to have dealt with this earlier. But we are where we are, we will endeavour to - once Edge Legal is available we will put it to them, but on the face of it it doesn't appear that Mr King's evidence is going to be dealt with today.

PN2469

MR GIBIAN: Can I just indicate, your Honour, the union did serve it on Mr King and on Costa and was only appraised of a refusal or - - -

PN2470

JUSTICE ROSS: I see. Like in this correspondence - - -

PN2471

MR GIBIAN: - - - the same time as the Commission.

PN2472

JUSTICE ROSS: Yes, I see. All right. So it was served. They would have been aware because of the statements that they had the opportunity to object.

PN2473

MR GIBIAN: Yes, we initially endeavoured to serve through solicitors, Mr Dalton's instructors, but when that was declined it was served directly on the company and on Mr King, and as I say we were only appraised of any difficulty in that respect at the same time as the Commission.

PN2474

JUSTICE ROSS: Yes. All right. Okay, well let's go to call the first witness.

PN2475

MR GIBIAN: Just before you do, your Honour, I was just going to indicate to avoid any unnecessary inconvenience, in terms of the remaining witnesses just having looked at it overnight I wasn't going to ask questions of Mr Moss, Mr Fatui or Mr Brown, which may abbreviate things. I am not sure whether - I haven't had the opportunity to talk to Ms Burke about that, so I am not sure whether she's in a position to indicate what her view is in relation to those particular witnesses, but I thought I would indicate that now rather than have people waiting on if that's unnecessary.

PN2476

JUSTICE ROSS: Certainly. Ms Burke?

PN2477

MS BURKE: There's Mr Moss, Mr Brown and Mr Fatui - yes, I certainly won't be cross-examining Mr Fatui and I will let you know about Mr Moss and Mr Brown after the first witness this morning if that's all right.

PN2478

JUSTICE ROSS: Certainly.

PN2479

MS BURKE: Thank you.

PN2480

JUSTICE ROSS: I will ask my associate to contact Mr Fatui and to indicate that he's not required for cross-examination, and you can tender his statement at a convenient time, Mr Donaghey.

PN2481

MR DONAGHEY: Will do, sir.

PN2482

JUSTICE ROSS: All right. Well, let's deal with the first witness.

PN2483

THE ASSOCIATE: I believe the first witness was intended to be Mr Gaeta, but he appears to have dropped out of the lobby. I'm not sure if someone wants to contact him directly or otherwise we can proceed to Mr Han Shiong Siah.

PN2484

MR DONAGHEY: I believe Mr Gaeta is one of those with very dodgy internet access, your Honour.

PN2485

JUSTICE ROSS: We might try him by phone.

PN2486

MR DONAGHEY: I think that's worthwhile.

PN2487

JUSTICE ROSS: All right, we will try that.

PN2488

THE ASSOCIATE: Mr Gaeta, can you please state your full name for the Commission.

PN2489

MR GAETA: Gaetano Guy Gaeta.

<GAETANO GUY GAETA, AFFIRMED [9.45 AM]

EXAMINATION-IN-CHIEF BY MR DONAGHEY [9.45 AM]

PN2490

JUSTICE ROSS: Mr Donaghey?

PN2491

MR DONAGHEY: Thank you, your Honour. Mr Gaeta, can you hear me clearly?‑‑‑Yes, I can.

PN2492

This is Tim Donaghey speaking. Mr Gaeta, your full name is Gaetano Guy Gaeta, is that correct?‑‑‑Yes, it is.

*** GAETANO GUY GAETA XN MR DONAGHEY

PN2493

And you've made a witness statement in this proceeding, is that right?‑‑‑Yes, I have, yes.

PN2494

And that witness statement is dated 9 June 2021?‑‑‑Yes, it is.

PN2495

And it consists of two pages and 15 paragraphs. Is that right?‑‑‑Yes.

PN2496

It has one exhibit, GG1?‑‑‑Yes.

PN2497

You have a copy of that statement in front of you. Is that correct?‑‑‑Yes, I have.

PN2498

Are there any corrections you wish to make to your statement, Mr Gaeta?‑‑‑No.

PN2499

Is your statement true and correct to the best of your knowledge?‑‑‑Yes, it is.

PN2500

I tender that statement, your Honour.

PN2501

JUSTICE ROSS: I will mark Mr Gaeta'a statement as exhibit NFF7.

EXHIBIT #NFF7 STATEMENT OF GAETANO GAETA

PN2502

MR DONAGHEY: No leave sought for further questions for this witness, your Honour.

CROSS-EXAMINATION BY MR GIBIAN [9.46 AM]

PN2503

MR GIBIAN: Mr Gaeta, can you hear me?‑‑‑Yes.

PN2504

You may be able to see me as well, I'm not sure, but so long as you can hear me adequately. All right. So your farm at the moment, you grow apples and cherries?‑‑‑Yes, I do.

PN2505

And I think so far as - you've said that at least during the cherry picking season you have around 50 to 70 workers in addition to any regular workers you have. Is that right?‑‑‑That's right, yes.

*** GAETANO GUY GAETA XXN MR GIBIAN

PN2506

And I think as I understand it, you ordinarily used backpackers up until this most recent season. Is that right?‑‑‑That's right.

PN2507

How did you attract - I'm sorry, I withdraw that. You directly employed those backpackers?‑‑‑Usually, yes, that's what we do, yes.

PN2508

That is in the past?‑‑‑Yes, in the past, yes.

PN2509

When you say "usually", that is were they sometimes engaged through labour hire companies in the past?‑‑‑No, no, we never used - apart from this last season we never used labour hire companies before.

PN2510

Before this last season when you were using backpackers, how did you recruit the backpackers?‑‑‑Just when the season's on, they know, and they just drive around, come down the driveway, or on the web site, like PickTheWorld, we're on there, so.

PN2511

That is it's advertised through web sites, and presumably word of mouth on various ways, and people just turn up at the farm?‑‑‑That's exactly right.

PN2512

And when they turn up - again I'm talking about before this season - you tell them what the rate is and what the work they have to do is, and give them a piece work agreement to sign. Is that right?‑‑‑That's right.

PN2513

This last season you say you had to engage contractors for the first - labour hire for the first time. Is that right?‑‑‑That's right.

PN2514

Were all of the workers - sorry, you said there were very few backpackers. Were all of the workers in the most recent season through labour hire, or were there still some backpackers?‑‑‑They were mainly - 90 per cent through the labour hire company.

PN2515

I understand. And with respect to those workers, that is engaged through the labour hire, I take it you didn't have a piece work agreement with those, that was a matter that was dealt with by the labour hire company?‑‑‑Yes. We had a piece work agreement with the labour hire company.

PN2516

That is, you told the labour hire company what the rate was going to be, and they then charged you an amount plus whatever administrative or profit there was for the labour hire company?‑‑‑Yes. 25 per cent on top, plus GST.

*** GAETANO GUY GAETA XXN MR GIBIAN

PN2517

And in terms of the rates, did you have to have higher rates this year as a - that is, leaving aside the 25 per cent, did you also have to increase the rates compared to previous years?‑‑‑No. No, mainly because the cherries were all large. No, we didn't have to.

PN2518

What has the size of the cherries got to do with it?‑‑‑The bucket fills up twice as quick than when they're small.

PN2519

So the size of the cherries varies somewhat from season to season, does it?‑‑‑Yes. Yes, it does.

PN2520

And that's as a consequence of the growing conditions that happen to occur in any particular year?‑‑‑Mainly drought.

PN2521

That is whether it has rained or the weather generally speaking. Is that right?‑‑‑Yes, that's right.

PN2522

And do correctly understand from the answer you just gave that the variation can be considerable?‑‑‑Well, we try not to make it considerable, you know, but usually if it is considerable, there's nothing to say that we don't leave some trees behind because they're too small, so we just - because you just lose money to pick them. Everybody loses money, so yes.

PN2523

And that's one factor at least that - that is the size of the cherries is one factor that affects the rate at which pickers can fill the buckets?‑‑‑Yes.

PN2524

I understand. You indicate in your statement - and this is particularly at paragraph 10 - that prior to the start of picking for all worker you do an hour of work yourself. Is that right?‑‑‑Yes.

PN2525

And that's the basis upon which you set the piece rate for the season. Is that right?‑‑‑Yes. We just try to get an idea, you know, the time that it takes. And, like, it takes us a day or two to adjust it, but we make sure that anybody that can pick and has a go at picking can earn that award or a lot better.

PN2526

I understand. But anyway, just going back to the way in which you do it, you describe in paragraph 10 - and this is in the second sentence, I think - that:

PN2527

Prior to the start of picking for all workers we would do a -

*** GAETANO GUY GAETA XXN MR GIBIAN

PN2528

I assume that means "a pick" - "for an hour ourselves." Is that right?‑‑‑Yes.

PN2529

And that's the basis upon which you then set the rate?‑‑‑Yes.

PN2530

And that's a rate that's then - you write it in the piece work agreements that you then give to the workers - I'm talking about prior to this season - you give the backpackers when they turn up ‑ ‑ ‑ ?‑‑‑Yes.

PN2531

‑ ‑ ‑ the farm?‑‑‑Yes.

PN2532

You then say you monitor the rate. That's right?‑‑‑Yes, we do.

PN2533

By that I take it you mean you keep - you monitor the hours that the workers are performing work and the amount that they're picking in that period of time. Is that right?‑‑‑Yes, exactly.

PN2534

Do you keep any record of the hours?‑‑‑We do keep the hours, but I haven't got them here with me. But we do know, like, we monitor the - mainly our concern is they don't drop backwards. If the bar is set too high the people can't reach it. We're a family farm, we look after all our workers, and we do monitor them for our own sake and their sake.

PN2535

Just sticking back to the question. You do keep a record of the hours that are worked by the pickers. Is that right?‑‑‑Yes. Yes, we keep hours - we keep a record of the hours, yes ‑ ‑ ‑

PN2536

That is ‑ ‑ ‑ ?‑‑‑ ‑ ‑ ‑ we do, yes.

PN2537

That is the start time and the finish time and the total of hours of work that each individual performs?‑‑‑Yes, at the best of times, because a lot of times the pickers, they get in their car and they just go for a drive to town to get something or whatever. But overall the majority of the time we do try to keep a pretty accurate hours.

PN2538

Yes, all right. So you do have paper records, do you, of the hours of work of all the piece workers?‑‑‑Yes. Yes.

*** GAETANO GUY GAETA XXN MR GIBIAN

PN2539

You say that you would then adjust the piece rate if you didn't think that a large proportion of the workers were earning enough?‑‑‑That's right.

PN2540

For example because the crop was sparse or small, as we discussed. Is that right?‑‑‑Yes, that's right.

PN2541

How often does that happen?‑‑‑Well, look ‑ ‑ ‑

PN2542

That is, does it happen every season, that you have to adjust it?‑‑‑Yes. Yes, for sure. You always get sometimes a variety of trees which didn't pollenate, so they're a bit lighter. But we never adjust it backwards. If they're picking a lot more than what they - you know, we never have made the piece rates lower. So yes, but we are very conscious of what they pick per day. Yes, we are. We do.

PN2543

That is, how often have you adjusted the piece rate? That is, last season did you adjust it at all, or was it the same from the start to the finish?‑‑‑Look, just my memory, I think we would have adjusted it twice.

PN2544

Was that for particular days or particular parts of the farm, or did you generally just adjust it going forward?‑‑‑Just the particular - how the trees were loaded with cherries.

PN2545

All right. So, on a particular day or for a particular part of the farm, if you made an assessment, you might change it for that day; is that right?‑‑‑Yes, yes.

PN2546

And when do you tell the workers that the rate's been changed?‑‑‑We tell them straight away.

PN2547

That is before they start work or after they've been working?‑‑‑Oh, well, when they get there - when they get - they could be picking trees which are perfect and then they get to some slower trees and that's when you tell them. That way then you encourage them that they are going to earn more for the lug. Like we've had cases that we pay $15 for a lug. It's not like a factory thing, like this is trees that the fruit grows as it wants to grow and - but we do change it - to their benefit.

PN2548

All right. So, if the workers are working on one part of the farm and then they move to another part of the farm which you think might be a bit slower, you'll say, "Oh, we're just going to up the rate for the rest of today." Is that what you might do?‑‑‑Exactly, yes. We make sure that they earn their wage at least.

*** GAETANO GUY GAETA XXN MR GIBIAN

PN2549

Then if they go back to another part of the farm which is sort of more heavily fruited, for example, then they'd go back to the rate they were on before; is that right?‑‑‑On the crunch rate, yes, on the piece rate, yes.

PN2550

So it just sort of can vary from day to day, might go up and down; is that right?‑‑‑That's right, that's how it goes, yes.

PN2551

You produced some documents, I think - sorry, I just need to get them up. You were required to produce some documents in relation to both pay and hours of piece workers?‑‑‑Yes, yes.

PN2552

Am I right in understanding that you didn't produce any documents that reflected the hours of work of the employees?‑‑‑No, we didn't produce any of them, no, but they would take a lot longer to find and get out of the computer, like there's - like we went through 95 people and we only used around 45 full time, so there was plenty of heartache as it was, but we have got the records in the computer, but we've got the lug records and nobody works over eight hours at our place, so - - -

PN2553

That is, you understood that you were required to produce records in relation to hours of work, those records do exist and you just haven't produced them; is that the position?‑‑‑Oh, well, I wouldn't - why should I produce them anyway? We've got a hundred per cent of the people which work in the packing shed. They're all paid by the hour. We got them, but these ones here, we just, like I said, we make sure that they don't overwork and whatever, but we would have them there somewhere, but I didn't think I was on trial here either.

PN2554

That is, the answer to my question is "Yes", that is, you knew that you were required to produce hours of work records?‑‑‑Yes.

PN2555

Those records do exist and you just haven't produced them; is that correct?‑‑‑That's correct.

PN2556

The same with pay records? That is, you have pay records for what are paid to the employees or the workers?‑‑‑Yes, yes.

PN2557

You haven't produced those either?‑‑‑No, we have produced the amount that they've picked for their week and what they've been paid, yes.

*** GAETANO GUY GAETA XXN MR GIBIAN

PN2558

All I've got that you produced was four pages, is that right, four pages, the first of which is the letter of 27 August 2020 with the logo of something called GEMS Group?‑‑‑Yes.

PN2559

And it's four pages in total; is that right?‑‑‑Yes.

PN2560

That's what you produced?‑‑‑Yes.

PN2561

All right?‑‑‑I cannot produce you your payslips because I don't pay the pickers.

PN2562

Yes, I understand that?‑‑‑(Audio malfunction) pays the pickers. I pay the full amounts.

PN2563

So you don't have any pay records for the workers because they are all labour hire?‑‑‑That's right.

PN2564

I understand. Do you have that four pages of documents that you've produced?‑‑‑Yes.

PN2565

So the first page is the letter from GEMS Group. This was, in short, the proposal from GEMS Group, which is the labour hire company, was it, to you to supply labour?‑‑‑Yes.

PN2566

All right. So far as the - it sets out the number of staff involved and, in the middle part of that letter, the price is set out. So, you pay GEMS Group for the shed staff $28.50 an hour per worker; is that right?‑‑‑That's right.

PN2567

And then whatever those workers were paid was a matter between GEMS Group and the worker, I assume?‑‑‑Yes.

PN2568

So far as the picking rates for picking staff were concerned, there would be either an hourly rate or a load piece rate?‑‑‑Yes.

PN2569

I take it they were load piece rates, were there?‑‑‑Yes, yes.

PN2570

And that rate would be determined by management and the grower at the time of picking plus 25 per cent; is that right?‑‑‑Yes, yes.

PN2571

You told GEMS Group at some point what the rate was and you paid them what the rate was plus 25 per cent?‑‑‑Yes, that's right.

*** GAETANO GUY GAETA XXN MR GIBIAN

PN2572

The second page, you provided some lug - is this a load record for the pickers - - -?‑‑‑Yes.

PN2573

- - - for one week in December of 2020; is that right?‑‑‑Yes.

PN2574

Then, if you go to the third page, that's the invoice for a particular week; is that right?‑‑‑Yes, that's for that week there, the lug price.

PN2575

So all that this shows is the total number of lugs picked by all of the workforce engaged by GEMS Group and sent to your farm?‑‑‑That's right.

PN2576

All right. The rate there is 16.25; is that right?‑‑‑Pardon?

PN2577

Are you on the third page of the document, on the invoice? There were 1023.25 lugs picked by the workers?‑‑‑Yes, yes, that's right, yes.

PN2578

And the rate that you've paid the labour hire company was $16.25 per lug; is that right?‑‑‑Yes, if that's what it says, that's what it says, yes.

PN2579

And that included the 25 per cent for the labour hire company, did it?‑‑‑Yes.

PN2580

All right. So far as the last document headed "Cherry Season 2020 Piece Work" - do you see that?‑‑‑Yes.

PN2581

What is that document?‑‑‑That's how we work out like the lug rate on the season, like - - -

PN2582

Who prepared that document? Did you?‑‑‑Me and my son.

PN2583

When did you do that?‑‑‑About a week before harvest.

PN2584

All right. What you did was you calculated the hourly rate, including the 25 per cent casual loading; correct?‑‑‑Yes.

PN2585

Multiplied that by eight hours to get $198; is that right?‑‑‑Yes.

*** GAETANO GUY GAETA XXN MR GIBIAN

PN2586

You then inserted a rate of $13 per lug?‑‑‑yes.

PN2587

And added 25 per cent to the hourly rate of pay?‑‑‑No, 15 per cent.

PN2588

Sorry, 15 per cent, and that's how you calculated a per hour rate of picking of 2.2 lugs?‑‑‑Yes, we virtually - the young kids picking would have to earn at least $228 or $230 a day to be at least the minimum wage.

PN2589

Yes, but you started with inserting a value of $13 per lug and that's how you worked out the (audio malfunction) rate of 2.2?‑‑‑Yes, and if you can't reach that, you've got to put that price up.

PN2590

Anyway, this is the way (audio malfunction) for the season included the work in the piece work as well?‑‑‑Yes.

PN2591

This season, I suppose - this is not the piece work agreements that you had with the workers but what you informed the labour hire company?‑‑‑That's right.

PN2592

Can I just have a moment? Thank you, Mr Gaeta?‑‑‑Is that all?

PN2593

JUSTICE ROSS: Just for the moment, Mr Gaeta, if you just wait there. Ms Burke, did you have any questions?

PN2594

MS BURKE: I don't, thank you, your Honour.

PN2595

JUSTICE ROSS: Mr Donaghey?

PN2596

MR DONAGHEY: No re-examination, your Honour.

PN2597

JUSTICE ROSS: All right. Thank you, Mr Gaeta, you're excused.

PN2598

THE WITNESS: Okay. May I add something?

PN2599

JUSTICE ROSS: No.

*** GAETANO GUY GAETA XXN MR GIBIAN

PN2600

THE WITNESS: Okay then.

PN2601

JUSTICE ROSS: Thank you, Mr Gaeta?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.06 AM]

PN2602

JUSTICE ROSS: Before we go to the next witness, Ms Burke, are you able to give an update on whether you require Mr Moss and Mr Brown?

PN2603

MS BURKE: Your Honour, I don't require Mr Brown. I just need to briefly discuss Mr Moss with Mr Gibian and Mr Howell, and obviously I can't lean over and chat to them at the Bar table.

PN2604

JUSTICE ROSS: We can take five minutes to allow that to happen. Can I also raise an issue in relation to Mr King with Mr Dalton. Mr Dalton, there are it seems at least two ways forward. You have heard what has been said about the non-compliance with the notice to produce. One option is we will have the debate about compliance and whatever will come out of that will come out of that, but that would seem to mean that if there's to be further compliance that would have to take place and then Mr King would be called to give evidence after that. The alternate is you call Mr King at 1 pm in the face of the submissions you have heard about non-compliance from the two unions, and if those submissions are ultimately accepted that may mean that the weight to be given to Mr King's evidence is affected. Do you follow?

PN2605

MR DALTON: Yes, your Honour. From the AFPA's perspective our intention is to call Mr King at 1 pm. If Mr King on advice wants to answer compliance and press issues then he needs to do that as soon as possible presumably.

PN2606

JUSTICE ROSS: Okay. Because of Mr Gibian's cross-examination of the last witness I apprehended that may be the basis of the submission and I just wanted to put you on notice that you may face a similar issue, but it's your witness and you can call him at 1, and as you say we will see where the matter falls.

PN2607

MR DALTON: Yes, your Honour.

PN2608

JUSTICE ROSS: All right. Thank you. That probably hasn't given you enough time, Ms Burke, I am sorry about that. So we will just - - -

PN2609

MS BURKE: Sorry, I am not in the habit of making phone calls while your Honour is speaking.

PN2610

JUSTICE ROSS: We will just stand the matter down for five minutes, but if the parties can remain on the line. Thank you.

PN2611

MS BURKE: Thank you.

SHORT ADJOURNMENT [10.09 AM]

RESUMED [10.17 AM]

PN2612

JUSTICE ROSS: Ms Burke.

PN2613

MS BURKE: Thank you very much, your Honour. I do require Mr Moss for cross‑examination, but not Mr Brown.

PN2614

JUSTICE ROSS: Okay. Thank you. All right, we will call the next witness. Mr Gibian, did you want to tender Mr Gaeta's material in response to the notice to produce?

PN2615

MR GIBIAN: Yes, thank you, your Honour.

PN2616

JUSTICE ROSS: We will mark that exhibit AWU24.

EXHIBIT #AWU24 DOCUMENTS PRODUCED BY GAETANO GAETA

PN2617

We will call the next witness.

PN2618

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

PN2619

MR SIAH: I am Han Shiong Siah.

<HAN SHIONG SIAH, AFFIRMED [10.19 AM]

EXAMINATION-IN-CHIEF BY MR DONAGHEY [10.19 AM]

PN2620

MR DONAGHEY: Mr Han, could you state your full name for the tribunal, please?‑‑‑My name is Han Shiong Siah.

PN2621

And you're a farm manager. Is that correct?‑‑‑That is correct.

*** HAN SHIONG SIAH XN MR DONAGHEY

PN2622

And you've made a witness statement in this proceeding?‑‑‑That is correct.

PN2623

Do you have your witness statement in front of you?‑‑‑Yes, I do, right here.

PN2624

Does your witness statement consist of six pages and 41 paragraphs?‑‑‑Yes, that is correct.

PN2625

And you have two exhibits to that statement?‑‑‑That is correct, yes. Exhibit A and exhibit B.

PN2626

Do you have any corrections to your witness statement?‑‑‑I don't have any corrections, but I've just got a quick note that ‑ ‑ ‑

PN2627

I will stop you there. If I might stop you there. I will seek leave in relation to your note based upon whether the tribunal wishes to give me permission. Aside from the note that you've just mentioned in your statement, are there any corrections you wish to make other than that?‑‑‑No.

PN2628

Is your statement then true and correct to the best of your knowledge?‑‑‑That is correct, yes.

PN2629

I tender that statement, your Honour.

PN2630

JUSTICE ROSS: I will mark Mr Siah's statement as exhibit NFF8.

EXHIBIT #NFF8 STATEMENT OF HAN SIAH

PN2631

MR DONAGHEY: Your Honour, in order to seek leave to ask a further question of this witness, I probably need to ask a question first about the nature of what he has just expanded upon. Do I have your permission to do that, or do you wish me ‑ ‑ ‑

PN2632

JUSTICE ROSS: No, no.

PN2633

MR DONAGHEY: ‑ ‑ ‑ some instructions first, which I can do.

PN2634

JUSTICE ROSS: No, that's fine. What ‑ ‑ ‑

*** HAN SHIONG SIAH XN MR DONAGHEY

PN2635

MR DONAGHEY: Very good.

PN2636

Mr Han, you mentioned a moment ago that you had what you described as a note in relation to your statement?‑‑‑That's correct.

PN2637

Can you take us to which paragraph concerns you in your statement?‑‑‑Paragraph 13 and 32(a).

PN2638

Sorry, did you say 13 and 32(a), both of those paragraphs?‑‑‑That's correct, yes.

PN2639

I misunderstood, I thought you said one paragraph. Could I ask you to explain in your own words what you wish to say about those paragraphs?‑‑‑Basically what I'm trying to say in that paragraph is that the workers ‑ ‑ ‑

PN2640

Sorry to interrupt you, Mr Han. You mentioned two paragraphs. Are you now looking at 13, or are you looking at 32(a)?‑‑‑13.

PN2641

Thank you. Sorry, go on?‑‑‑They're the same paragraph - the same relationship. They're the same topic.

PN2642

I understand. Please go ahead?‑‑‑So basically paragraph 13 (indistinct) they work roughly nine hours a day. However, we give our workers the freedom to start and stop and choose their own breaks. So they could work nine hours a day or they could work six hours a day, based on their personal preference and they're meeting their goals.

PN2643

I understand. Does that impact upon what you said I think a moment ago about 32(a), or is that just in relation to that paragraph?‑‑‑Just in relation to that paragraph.

PN2644

Thank you. Nothing further, your Honour.

CROSS-EXAMINATION BY MR GIBIAN [10.22 AM]

PN2645

MR GIBIAN: Thank you, Mr Han. Can you hear me?‑‑‑Yes, I can.

*** HAN SHIONG SIAH XXN MR GIBIAN

PN2646

As I understand it, the farm grows a number of different fruits, but you only employ the casual pickers on piece rates for the mango. Is that right?‑‑‑That is correct, yes.

PN2647

So the other fruit is picked by your regular employees on hourly rates. Is that ‑ ‑ ‑ ?‑‑‑They are done by me and my parents.

PN2648

I understand. That is the mango is the largest part of the farm?‑‑‑It's probably the more labour-intensive crop.

PN2649

I understand?‑‑‑It makes about 60 per cent.

PN2650

All right. And that's about 15 employees during the harvest season. Is that right?‑‑‑Yes.

PN2651

You describe - this is from paragraph 15 of your statement onwards - the skills involved in the mango harvesting?‑‑‑Yes.

PN2652

In infer from that that it's obviously enough important to you that the work is done not only quickly, but with appropriate care to ensure the fruit isn't damaged as part of the picking process?‑‑‑Yes, that's correct. Yes.

PN2653

That is, you don't just want the workers to pick as fast as possible if it's at the expense of damaging the fruit and obviously reducing its value?‑‑‑Correct. That is correct, yes.

PN2654

And that is something that you supervise and correct if the workers are using an inappropriate or inadequate technique?‑‑‑Yes, that's correct. Yes, we do that.

PN2655

And can you just go to paragraph 22 of your statement. You refer there to the pickers operating an driving what you refer to as harvest aid machines?‑‑‑Yes.

PN2656

What is that?‑‑‑It is a mango harvesting machine. It helps de-saps mangos from harvested trees to remove the sap. It makes it more handle carefully - handle more safely after in - for the chains.

PN2657

That is it's a motorised vehicle, is it?‑‑‑Yes.

*** HAN SHIONG SIAH XXN MR GIBIAN

PN2658

With some kind of device on it that assists with the ‑ ‑ ‑ ?‑‑‑Yes, it ‑ ‑ ‑

PN2659

‑ ‑ ‑ process?‑‑‑Yes, correct. The workers - the pickers still have to pick the mangos themselves.

PN2660

And place in the harvest aid device. Is that right?‑‑‑Yes.

PN2661

And the work you say is operating and driving, that is the pickers have to drive the harvest aid machine from tree to tree. Is that right?‑‑‑Yes, that's correct. Yes.

PN2662

Are they separately paid for that, or that's just part of the work involved in the picking, they're paid by the piece rates?‑‑‑That is part of the work, yes.

PN2663

The casual workers, where do you get them from? That is, they're through labour hire or directly employed by the company?‑‑‑Directly employed.

PN2664

Are they generally backpackers, at least up to this year?‑‑‑Yes, they've all been backpackers.

PN2665

Do you still have - you still had enough backpackers in the most recent season?‑‑‑Yes, we did.

PN2666

And you ask them, do you, when they turn up, to sign a piece work agreement?‑‑‑Yes, I do, yes.

PN2667

You have given an example of that in annexure A to your statement?‑‑‑Yes.

PN2668

And the piece work agreement, I think it's on the third page, there's a schedule A which sets out what the rate is?‑‑‑Yes.

PN2669

If you just go to that document - it's a bit hard to read - it's at page 2986 of the court book, for everyone else's benefit - I think it's $70 a bin; is that right?‑‑‑Yes, that's correct.

PN2670

In this example at least. And then that rate is a rate that you've set for the season and remains the same throughout the season; is that right?‑‑‑Most of the time, yes.

*** HAN SHIONG SIAH XXN MR GIBIAN

PN2671

Well, does it change throughout the season ever?‑‑‑It does, depending on weather and performance.

PN2672

I'm sorry?‑‑‑It changes based on weather and performance.

PN2673

All right. That is, if the weather's - the picking rate might be affected by the weather, for example?‑‑‑Yes, the temperature, the humidity and the heat, yes.

PN2674

In which case you may adjust the rates at some point during the season?‑‑‑Yes.

PN2675

Do you enter into new piece work agreements if that happens?‑‑‑We generally do, yes, but we didn't last year.

PN2676

That is, there was no change last year; is that right?‑‑‑Yes.

PN2677

I understand. Do you just tell the workers that you're changing the rates and give them new piece work agreements if that does happen?‑‑‑Yes.

PN2678

You have described the process that you undertake for setting the rate in paragraph 28 of your statement. If you just go to 28(g), you say that that process takes a few moments; is that right?‑‑‑No, we're saying that we've done this process for the last 10 years.

PN2679

You say it's now second nature to you and only takes a few moments; is that right?‑‑‑Yes.

PN2680

At least when you set it last season, it's something that happened in your head and you just decided what the rate was going to be within a few moments; is that right?‑‑‑No, it's more like a second nature, it's like we know if the season's going to be that kind of volume.

PN2681

Yes, that is, before the harvest season, you have made a determination in your mind as to what the appropriate rate is going to be?‑‑‑Yes.

PN2682

You said it only takes a few moments for you to make that determination. I take it that that's not something, that is the way you work it out, is not something you write down or is documented in any way?‑‑‑No.

*** HAN SHIONG SIAH XXN MR GIBIAN

PN2683

And then that's the rate that you put in the piece work agreements that you give to the backpackers when they turn up?‑‑‑Correct.

PN2684

So far as the working is concerned, I think you've given some clarification about that. You have provided, attached to your statement, some payslips. I find them somewhat difficult to read, I have to say. Sorry, perhaps before I go to that, if you go to paragraph 32 of your statement?‑‑‑Yes.

PN2685

The additional comment that you added related in part to paragraph 32(a) where you refer to workers having worked a nine-hour day six days a week?‑‑‑Yes.

PN2686

That's the standard picking/harvesting period, or that is the workers are working for that time. I think the clarification you made is that some might stop earlier from time to time?‑‑‑Yes.

PN2687

Do you actually keep any record of the start and finish time of the piece rate workers?‑‑‑No, I don't. No time records.

PN2688

Sorry?‑‑‑No time records.

PN2689

No time records. All right. You would accept from that that it wouldn't be possible after the event to go back and work out the hourly rate, effective hourly rate, of a piece work employer based upon just their gross earnings without knowing what the hours were?‑‑‑No.

PN2690

That is, you agree with me?‑‑‑Yes.

PN2691

You have included some pay records from annexure B, that's from page 2988 of the court book. I can't really read these, I have to say, but you'll see that the first one, or the form of them is they have a payment, gross income, and give (indistinct) rate in hours? Do you see that that's recorded in the table? So go to the first page of annexure B?‑‑‑Yes.

PN2692

Do you see that?‑‑‑Yes.

PN2693

I think what you've recorded under hours is not actually hours but the number of bins picked; is that right?‑‑‑There's two - are you referring to the one with the two lines? There's one initial line with hours and the second line is the one with the bins.

*** HAN SHIONG SIAH XXN MR GIBIAN

PN2694

All right. It might be easier - you produced some records, a bundle of 37 pages of documents. Do you have that?‑‑‑I have the first statement here, which is the first one marked with - - -

PN2695

No, no, you separately produced a number of records?‑‑‑Yes, correct, yes, I do, yes.

PN2696

Which is a bundle of - - -?‑‑‑Of payslips, correct, yes.

PN2697

The first page of which is headed "Tropical Primary Conducts Weekly Timesheet"?‑‑‑Yes. Yes, I've got that, yes.

PN2698

It's headed a "Timesheet", but it's not really a timesheet. This is a record, is it - is this a document you have prepared, or completed at least?‑‑‑Yes, completed, yes.

PN2699

Although it's headed "Timesheet", it doesn't actually record times?‑‑‑No.

PN2700

It's bin numbers for particular employees on particular days; is that right?‑‑‑Yes, that's correct, yes.

PN2701

Then if you go forward to - it's the fifth page in the bundle - there's then payslip documents for particular employees?‑‑‑Yes.

PN2702

It records the pay and, again - it's more legible this time - under the heading "Hours", you haven't actually recorded hours, you've recorded the piece rate, the number of bins?‑‑‑Yes.

PN2703

If you just go back to the first page, there may be an obvious explanation for this, but there's one particular employee, Jeremy Esposito - - -?‑‑‑Yes.

PN2704

- - - who picked a greater number of bins than everyone else. Why is that?‑‑‑He is not a picker, he is actually a supervisor who supervises everyone and he gets paid by piece rate based on supervising them and their performance.

PN2705

So he gets paid at piece rates based on not what he's picking but on the basis of the total number picked by the crew that he is supervising; is that right?‑‑‑Correct, which is everyone.

*** HAN SHIONG SIAH XXN MR GIBIAN

PN2706

Which is the rest, all right?‑‑‑Yes.

PN2707

The others are paid, so the next - sorry, I can't read the name - but the next individual picked four bins on 25 September last year. That's the amount that that person personally picked; is that right?‑‑‑Yes.

PN2708

If you go forward to the payslips, I think it's page 7 within the bundle, there's a payslip for Mr Esposito for the period of 27 October to 29 October; do you see that?‑‑‑Yes.

PN2709

So he gets $15 per bin that the other workers pick?‑‑‑Yes.

PN2710

Now, I take it that's supposed to be an incentive for him to supervise or keep the other workers in line and picking to an adequate rate, is that right?‑‑‑That's correct, yes.

PN2711

How did you determine that $15 per bin was the appropriate amount to pay Mr Esquisito?‑‑‑Based on the number of workers there and the time that they take in general size.

PN2712

Sorry, if I can just have a moment, your Honour. Sorry, just one more matter. If you just go to the first page again of that 37 page bundle of produced documents. If you just take again the first entry for 25 September you will see that the last four employees from Eloise Benoff(?) they are recorded as having worked a particular number of hours. Is that because they were doing a different type of work that is not picking work?‑‑‑No, they were in training phase.

PN2713

So you pay hourly rates for a training period?‑‑‑Correct.

PN2714

How long is that training period?‑‑‑Until we determine to tell them they are suitable to be able to pick piece rate.

PN2715

Well, in this instance it was one day, wasn't it, that they moved to the piece rates the next working day at least, which was the Monday the 28th?‑‑‑Correct. They'd been picking for a few days already before that.

PN2716

All right. So how many days do you usually pay the hourly rates for?‑‑‑Generally two to three days.

*** HAN SHIONG SIAH XXN MR GIBIAN

PN2717

Thank you, Mr Han, that's the cross-examination.

PN2718

JUSTICE ROSS: Ms Burke?

PN2719

MS BURKE: No cross-examination, thank you.

PN2720

JUSTICE ROSS: Mr Donaghey?

PN2721

MR DONAGHEY: No re-examination, your Honour.

PN2722

JUSTICE ROSS: Thank you for your evidence, Mr Han, you're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.38 AM]

PN2723

MR DONAGHEY: Can I tender that bundle, your Honour?

PN2724

JUSTICE ROSS: Yes. So that's the bundle that starts with weekly timesheet?

PN2725

MR DONAGHEY: Yes, thank you.

PN2726

MR GIBIAN: We will do the same pagination process if that's convenient to the Commission.

PN2727

JUSTICE ROSS: Thank you.

EXHIBIT #AWU25 BUNDLE OF DOCUMENTS

PN2728

We will call the next witness, Mr Moss.

PN2729

THE ASSOCIATE: Thank you, Mr Moss, can you please state your full name for the Commission.

PN2730

MR MOSS: Jonathan Richard Moss.

<JONATHAN RICHARD MOSS, AFFIRMED [10.41 AM]

*** HAN SHIONG SIAH XXN MR GIBIAN

EXAMINATION-IN-CHIEF BY MR DONAGHEY [10.41 AM]

PN2731

JUSTICE ROSS: Mr Donaghey?

PN2732

MR DONAGHEY: Thank you, your Honour. Mr Moss, could you state your full name for the tribunal, please?‑‑‑Jonathan Richard Moss.

PN2733

And you are a production manager?‑‑‑Yes.

PN2734

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

PN2735

Do you have your witness statement in front of you?‑‑‑Yes.

PN2736

Does that witness statement consist of six pages and 43 paragraphs?‑‑‑Yes.

PN2737

Does it have one exhibit marked exhibit A?‑‑‑Yes.

PN2738

For those on the electronic court book page 2996. Are there any corrections you wish to make, Mr Moss, to your witness statement?‑‑‑No.

PN2739

Is your witness statement true and correct to the best of your knowledge and recollection?‑‑‑Yes.

PN2740

I tender that statement, your Honour.

EXHIBIT #NFF9 WITNESS STATEMENT OF JONATHAN MOSS

PN2741

No leave sought to ask Mr Moss any further questions.

PN2742

JUSTICE ROSS: Thank you. Ms Burke?

CROSS-EXAMINATION BY MS BURKE [10.43 AM]

PN2743

MS BURKE: Thank you, Mr Moss. You said you had a copy of your statement there, but before I begin can I just check that you can see and hear me all right?‑‑‑I can - I can hear you, I can't see you.

*** JONATHAN RICHARD MOSS XXN MS BURKE

PN2744

That's all right. Mr Moss, you have given some evidence in your witness statement about the consequences to your farm if the AWU's application is granted. I just want to ask you some questions about that. Is it your understanding that the AWU's application is to effectively eliminate piece work arrangements?‑‑‑No.

PN2745

What is your understanding of the application?‑‑‑There'll be a bench - a bench rate set in place that a worker regardless of productivity must earn the award wage.

PN2746

And just the award wage?‑‑‑My understanding.

PN2747

Isn't that getting rid of - effectively eliminating piece rates?‑‑‑No.

PN2748

How is it not effectively eliminating piece rates, Mr Moss?‑‑‑A worker if they are more productive they can - my understanding - make more money, (audio malfunction), but if they're less they still make the award.

PN2749

And how can they make more money if they're more productive?‑‑‑For my business - - -

PN2750

Sorry, I wasn't clear in my question. I'm just trying to get a sense of your understanding of what the AWU's application is, what the AWU is seeking to do with the Horticulture Award and piece rates?‑‑‑My understanding is that a bench rate will be set regardless of the productivity on the lower end. So if a person does the equivalent of $20 per hour productivity they still must be paid the award.

PN2751

But they could still get - you could still offer and they could still get 15 per cent above the award if you wished. Did you understand that to be part of the application?‑‑‑Yes.

PN2752

All right. Could you have a look, please, at annexure A of your statement?‑‑‑Sorry, can you repeat, which page?

PN2753

Annexure A. So that's the employee questionnaire that you've attached?‑‑‑Yes.

PN2754

You gave this questionnaire to some of your employees to complete?‑‑‑Yes.

PN2755

When did you do that?‑‑‑I don't recall the date.

*** JONATHAN RICHARD MOSS XXN MS BURKE

PN2756

Do you recall - sorry, was it all on the one day that you gave it to them?‑‑‑Yes.

PN2757

Was it recently? So I don't need the exact date, but was it sort of May, June of this year?‑‑‑I don't recall.

PN2758

You gave it to all your employees on that day. Were all of those employees, do you remember, seasonal worker program employees?‑‑‑Yes.

PN2759

Were there any backpackers on that day?‑‑‑No.

PN2760

And any local international employees on that day?‑‑‑No.

PN2761

You will see in the first line of the questionnaire it says:

PN2762

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

PN2763

And you will see also in the third paragraph, the last sentence says:

PN2764

That is, if the AWU succeeds, employees may be guaranteed 24.80 per hour, but not have access to piece rates which allow them to earn at least 27.78 per hour and potentially much more.

PN2765

When you gave this survey to your employees did you explain your understanding of the AWU's application?‑‑‑Yes. No, I can't recall. Can't recall.

PN2766

Did you see your employees answer the questionnaire?‑‑‑No.

PN2767

Do you know if they answered the questionnaire together?‑‑‑I can't recall.

PN2768

If you didn't see them, how would you know if they had answered it all together?‑‑‑I'm not sure if they did or not.

PN2769

And you didn't direct them on how to answer, did you?‑‑‑No.

*** JONATHAN RICHARD MOSS XXN MS BURKE

PN2770

Thank you. I don't have any further questions.

PN2771

JUSTICE ROSS: Mr Donaghey?

PN2772

MR DONAGHEY: Does that conclude the cross‑examination? If so, then I have nothing further for this witness, your Honour.

PN2773

JUSTICE ROSS: I had understood Mr Gibian had no questions for this witness.

PN2774

MR DONAGHEY: Yes, sorry, that is my understanding also. In that case, no re‑examination, your Honour.

PN2775

JUSTICE ROSS: Thank you for your evidence, Mr Moss. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.48 AM]

PN2776

JUSTICE ROSS: We will go to Mr Benham.

PN2777

MR DONAGHEY: Before we do, your Honour, is it an appropriate time to tender by consent Mr Fatui - I understand his first name is pronounced Lenga, L-e-l-e-i-g-a. I understand there's no cross‑examination for Mr Fatui or ‑ ‑ ‑

PN2778

JUSTICE ROSS: Yes, just one moment. Mark Mr Fatui's statement as exhibit NFF10.

EXHIBIT #NFF10 STATEMENT OF LELEIGA FATUI

PN2779

Did you want to do Brown at the same time?

PN2780

MR DONAGHEY: I think it's an appropriate time, your Honour. I think it's described in his witness statement as Reginald John Brown. Yes, I would seek to tender that one from Court Book 3049.

PN2781

JUSTICE ROSS: Thank you. I mark that exhibit NFF11.

EXHIBIT #NFF11 STATEMENT OF REGINALD BROWN

*** JONATHAN RICHARD MOSS XXN MS BURKE

PN2782

MR DONAGHEY: Thank you, your Honour.

PN2783

JUSTICE ROSS: All right. Will we go to Mr Benham?

PN2784

MR DONAGHEY: Yes, please, your Honour.

PN2785

JUSTICE ROSS: Thank you. we will call Mr Benham.

PN2786

THE ASSOCIATE: Mr Benham, can you please state your full name for the Commission

PN2787

MR BENHAM: Matthew Charles Benham.

<MATTHEW CHARLES BENHAM, AFFIRMED [10.50 AM]

EXAMINATION-IN-CHIEF BY MR DONAGHEY [10.50 AM]

PN2788

MR DONAGHEY: Mr Benham, could you state your full name for the tribunal, please?‑‑‑Matthew Charles Benham.

PN2789

Have you made a witness statement in this proceeding?‑‑‑I have.

PN2790

Do you have a copy of your witness statement handy?‑‑‑I do.

PN2791

Is your witness statement dated 9 June 2021?‑‑‑Correct.

PN2792

Does it consist of two pages and 15 paragraphs - excuse me, that's not correct. Does it consist of four pages and 23 paragraph?‑‑‑Yes.

PN2793

And for those reading this, it appears to be on 3022 of the electronic Court Book.

PN2794

Mr Benham, do you have any corrections that you wish to make to your witness statement?‑‑‑They've been lodged I think ‑ ‑ ‑

PN2795

Do you have those corrections in front of you?‑‑‑Yes, I do.

*** MATTHEW CHARLES BENHAM XN MR DONAGHEY

PN2796

Can you take me to the first of those corrections you wish to make?‑‑‑Okay. Paragraph 3, change "Queensland representative" just to "representative".

PN2797

I understand. So delete the word "Queensland" in paragraph 3?‑‑‑Yes.

PN2798

Do you have any other corrections?‑‑‑Paragraph 4, remove "and administration".

PN2799

Yes, do delete the words "and administration" from the end of paragraph 4?‑‑‑Yes.

PN2800

Yes?‑‑‑Paragraph 5, change "130 hectares" to "over 130 hectares".

PN2801

In the first line of paragraph 5, "over 130 hectares" instead of "130 hectares". I understand?‑‑‑Yes.

PN2802

Anything else?‑‑‑Paragraph 10, change "and" to "and/or".

PN2803

Paragraph 10:

PN2804

Our permanent employees are all close family and/or local Australian residents.

PN2805

?‑‑‑Yes.

PN2806

Understand - - - ?‑‑‑And paragraph ‑ ‑ ‑

PN2807

I'm sorry?‑‑‑Paragraph 17, remove. "Each worker has an individual bag which determines their rate of pay." End of paragraph 17.

PN2808

So that's the whole of the last sentence?‑‑‑Yes.

PN2809

Thank you. Are there any other changes other than the ones you've just taken us to?‑‑‑No.

PN2810

With those changes, is your statement true and correct to the best of your knowledge?‑‑‑Yes.

*** MATTHEW CHARLES BENHAM XN MR DONAGHEY

PN2811

Yes, it is. I tender that statement, your Honour.

PN2812

JUSTICE ROSS: I will mark Mr Benham's statement as exhibit NFF12.

EXHIBIT #NFF12 STATEMENT OF MATTHEW BENHAM AS AMENDED

CROSS-EXAMINATION BY MR GIBIAN [10.53 AM]

PN2813

MR GIBIAN: Mr Benham, can you see and hear me, or at least hear me adequately?‑‑‑Yes, I can.

PN2814

That last correction you made was just to delete the last sentence of paragraph 17. Is that right?‑‑‑Correct.

PN2815

And sorry, just going back to the start of your statement. The farm business of the Top Citrus is obviously citrus fruit in three orchards of over 130 acres - sorry, hectares?‑‑‑Yes.

PN2816

And in paragraph 4 you also wish to delete the word "and administration", that is your responsibilities are operational in nature rather than administrative in nature. That was what you were trying to clarify. Is that right?‑‑‑Yes.

PN2817

That is, is there someone else whose responsibilities include the paperwork, as it were, or administrative aspects of the farm's operations?‑‑‑Yes.

PN2818

Does that include payroll records and matters of that nature? That's not your responsibility, but someone else's?‑‑‑Yes.

PN2819

Who does that?‑‑‑My wife and office secretary sort of - administration lady.

PN2820

So your wife's in charge, and there's an administrative worker who is also involved in that work?‑‑‑Yes.

PN2821

You describe having permanent employees who work year-round. I assume they're paid on hourly rates. Is that right?‑‑‑Yes.

*** MATTHEW CHARLES BENHAM XXN MR GIBIAN

PN2822

And then you have a seasonal workforce of 40 to 60 pickers, and 10 to 15 packers who work alongside the permanent staff in the harvest period?‑‑‑Yes.

PN2823

And all of them are through the labour hire contractor?‑‑‑No.

PN2824

Sorry, the additional workforce?‑‑‑the additional workforce is not through the labour hire, only the 40 to 60.

PN2825

Sorry, maybe I was - sorry, I was not clear, obviously. You have the 10 to 12 permanent workers?‑‑‑Yes.

PN2826

You directly employ those?‑‑‑Yes.

PN2827

They generally work on hourly rates?‑‑‑Yes.

PN2828

You then, in addition to those people, have 40 to 60 pickers, and an additional 10 to 15 packers for the harvest period. Is that right?‑‑‑Yes.

PN2829

Starting with the pickers, the 40 to 60 pickers are engaged through the labour hire company; is that right?‑‑‑Yes.

PN2830

The 10 to 15 additional packers, are they also engaged through the labour hire company?‑‑‑No.

PN2831

Where do you get those from?‑‑‑We employ them ourselves, through Global Harvest, or people contacting us for work.

PN2832

So, the pickers are through the labour hire company and, as I understand what you say there, they are from Nepal?‑‑‑The majority, yes.

PN2833

They are sourced by the labour hire company rather than by any step that you take?‑‑‑Yes.

PN2834

And the 10 to 15 packers then are - are they generally Australian residents or backpackers?‑‑‑Yes, Australian or backpackers.

PN2835

A bit of both? Are they generally backpackers, at least in the past?‑‑‑Yes.

*** MATTHEW CHARLES BENHAM XXN MR GIBIAN

PN2836

This last season, was that a bit different?‑‑‑Definitely.

PN2837

Did you have less backpackers?‑‑‑Yes.

PN2838

Did you have to change the pay arrangements for those workers for that?‑‑‑Sorry, can you just resay the question?

PN2839

Did the pay arrangements for the packers change because the backpackers weren't there?‑‑‑No.

PN2840

All right. Are the packers paid piece rates or hourly rates?‑‑‑Hourly.

PN2841

So far as the Nepalese workers are concerned then, have you used that same labour hire contractor for some period of time?‑‑‑Yes.

PN2842

How many years?‑‑‑Four or five - five.

PN2843

Are they returnees, that is, the same workers coming back year after year?‑‑‑The majority, yes, a portion of them are.

PN2844

That is, there's some change from year to year, but you have a reasonable proportion that come back year after year?‑‑‑Yes.

PN2845

So far as the rate is concerned, you say the piece rates themselves vary season to season; is that right?‑‑‑Yes, yes.

PN2846

That is, so far as the picking work is concerned, which is the only piece rate work, as I understand it, you make a determination at the start of the harvest or before, or shortly beforehand, as to what the rate's going to be for that year?‑‑‑Yes, and then per block.

PN2847

Sorry?‑‑‑And then on a per block basis.

PN2848

I'll come back to that. So, you determine what the rate is going to be and it might vary from block to block?‑‑‑Yes.

*** MATTHEW CHARLES BENHAM XXN MR GIBIAN

PN2849

And you make that decision at the start or shortly before the start of the harvest season?‑‑‑Yes.

PN2850

You say it varies block to block. Do I take it that that's because the picking conditions, such as the fruit density and the like, is different between the different blocks?‑‑‑Yes.

PN2851

And the rate that a worker can pick would vary depending upon fruit density and the like?‑‑‑Yes.

PN2852

And type?‑‑‑Type, yes.

PN2853

And just what the growing conditions have been and the like in the particular blocks; is that right?‑‑‑Yes.

PN2854

Once you have made the determination as to what the rate's going to be for that season, you inform the labour hire company; is that right?‑‑‑Yes.

PN2855

Am I right in understanding you then pay the labour hire company an amount each week or fortnight, whatever the period is, representing what their workers have picked in the period plus a premium, a loading for the administration or profit aspect of the labour hire's business?‑‑‑Yes.

PN2856

Do you have paragraph 14 of your statement there?‑‑‑Yes.

PN2857

There you say the rates themselves vary season to season and that you rely on your expertise and understanding of what different fruits are worth "and our output to determine the rate payable per bin"; is that right?‑‑‑Yes.

PN2858

If the quality of the output improves, you will adjust the rate upwards, as necessary; do you see that?‑‑‑Yes.

PN2859

So, in setting the rate, the matters that you take into consideration are what the fruits are worth, that is, the price that you can obtain for the fruit; is that right?‑‑‑Yes, but that's not the whole - so, yes, broadly, but, yes, it does vary. The main thing is the crop that we discussed earlier and from there.

*** MATTHEW CHARLES BENHAM XXN MR GIBIAN

PN2860

What you have said in your statement you take into account is - the first matter is the worth, and am I right to understand that's the price that you can obtain for the fruit?‑‑‑No.

PN2861

What did you mean by "worth"?‑‑‑Worth of - in my writing up the worth of what the worker is worth. So, you know, the more they're picking, the price adjusts (audio malfunction) and when we look at the last bit with adjust the rate upwards, if they're having a really good picking, we don't necessarily bring the rate back, we will (indistinct) and they will have the opportunity to earn more per hour.

PN2862

All right. Do you have paragraph 14 in front of you?‑‑‑Yes.

PN2863

You see there that what you say in that paragraph is that you rely on your expertise and understanding of what different fruits are worth "and our output to determine the rate payable per bin"; do you see that?‑‑‑Yes.

PN2864

That is - what you refer to in that sentence, at least, is what the fruits are worth?‑‑‑Yes, as part of the decision.

PN2865

Yes, all right. So, part of the decision is what the fruits are worth and then you say your output, that is the amount that's produced by the farm; is that right?‑‑‑Farm and output of the - of the pickers, which goes hand in hand.

PN2866

So they're the two matters that you consider; is that right? And then, as you say, if the quality of the output improves, that is, do you mean that the fruit is better quality?‑‑‑Quality is quality of the output as in a higher output to me is more quality. I'm not talking about the actual quality of the fruit, quality of the performance, I guess.

PN2867

So that's what you meant by that, is it?‑‑‑Mm.

PN2868

All right. The other change you made to the statement was in paragraph 17, you say that the pickers are provided with clippers, a ladder and a picking bag; do you see that?‑‑‑Yes.

PN2869

And they are issued with a guide and a sizing ring; do you see that?‑‑‑Yes.

*** MATTHEW CHARLES BENHAM XXN MR GIBIAN

PN2870

So, the pickers aren't just picking as quickly as possible, as it were, that is, they have to identify the right fruit that is appropriate to pick at a particular time?‑‑‑In different circumstances, there's different sorts of picking size picking, colour picking, strip picking.

PN2871

So, in some instance, they're selecting or identifying what's appropriate to pick; correct?‑‑‑Yes.

PN2872

So they clip it and place it in a bag. You deleted the sentence "Each worker has an individual bag which determines their rate of pay"?‑‑‑Yes.

PN2873

Why did you delete that sentence?‑‑‑I didn't think it made - it's not relevant, it just states what is happening. They have an individual bag. Their rate of pay is determined on how many bins they pick in a day versus the hours when we're looking at the average competent worker.

PN2874

So, it's not their individual bag that determines, it's the number of bins that are picked in the day and then you apply the piece rate that you determined at the start to be appropriate to that block?‑‑‑Yes.

PN2875

To those (indistinct) bins?‑‑‑Yes.

PN2876

You produced some records. It's a bundle of 54 pages of documents?‑‑‑Yes.

PN2877

Do you have access to that?‑‑‑Yes.

PN2878

The first page of it is a document headed "Global Harvesting Pty Ltd"?‑‑‑I'm not quite sure what order I've got it in. Yes.

PN2879

It's an invoice, I think, from Global Harvesting Pty Ltd?‑‑‑Yes.

PN2880

I'm just trying to see whether it has a date on it. Anyway, the invoice number is 00001042?‑‑‑Yes.

PN2881

The billing period doesn't seem to be completed. Sorry, it does have a date, at least the period ending 14 February 2021 - 14 April, sorry, 2021, I think?‑‑‑Yes.

PN2882

So, Global Harvesting, that's the labour hire company, is it?‑‑‑Yes.

*** MATTHEW CHARLES BENHAM XXN MR GIBIAN

PN2883

So, for this invoice, at least, I think the workers were doing - were they doing hourly work in this - - -?‑‑‑Thinning, pruning, yes.

PN2884

They were paid either hourly rates or there's a higher supervisor rate?‑‑‑Yes.

PN2885

All right. What does the quantity mean 462 in the thinning wages?‑‑‑That would be the amount of hours.

PN2886

Among the group?‑‑‑For the group, yes.

PN2887

I understand. All right. Then the second page I have at least is in landscape format, is a table. What is that document?‑‑‑So that is a spreadsheet from Global Harvesting that we use to check against our - that's from harvesting, for picking. We use that to check against our record, our day to day picking record, that the numbers are correct, and that no one - the pickers are getting the right amount and we have the right amount of bins tallied.

PN2888

All right. So this is a document produced by Global Harvesting?‑‑‑Yes.

PN2889

And sent to you?‑‑‑Yes.

PN2890

Does Global Harvesting have anyone at the farm, that is other than the workers supervising them?‑‑‑Just the supervisor.

PN2891

In any event it records the information on this and sends it back to you and you check it against your records of the number of bins that have been picked, is that right?‑‑‑Yes.

PN2892

I think this one if you look at it the first entry is for 25 March 2021. The block is TMMU, that's part of one of the orchards, is it?‑‑‑Yes.

PN2893

And the variety that's being picked is Murcotts and this is thinning work I think again - - -?‑‑‑That was - that particular - that is for thinners, yes.

PN2894

Can you just go forward, in the copy I have got it's the sixth page. It's a similar document I think. The first date on which is 31 March 2021?‑‑‑Yes.

PN2895

You have that one?‑‑‑Yes.

*** MATTHEW CHARLES BENHAM XXN MR GIBIAN

PN2896

So the table at the top part of that page is - the first date as I say is 31 March 2021, the block is FL03?‑‑‑Yes.

PN2897

Involving lemon stripping?‑‑‑Yes.

PN2898

So that's stripping lemons, is that right?‑‑‑Yes.

PN2899

And the number of pickers that were involved in that work, at least in that block was ten on that day?‑‑‑Yes.

PN2900

And it's recorded that their hours are recorded, that is each was recorded as working 4.5 hours?‑‑‑Yes.

PN2901

And during which they picked collectively 13 bins, is that right?‑‑‑Yes.

PN2902

And so you paid the labour hire company a rate of $110 per bin?‑‑‑Yes.

PN2903

For an amount of $1,430, is that right?‑‑‑Plus the labour company loading.

PN2904

Sorry, plus the labour company loading?‑‑‑Yes. That is what the pickers will receive, $110.

PN2905

Firstly, does it say that here?‑‑‑No, but in the invoice.

PN2906

All right. There's a total amount at the bottom of that page of $18,720?‑‑‑Yes.

PN2907

Is that the amount you pay for the labour hire company?‑‑‑No.

PN2908

Firstly, the workers are paid by the labour hire company, are they?‑‑‑Yes.

PN2909

You don't pay them money or give them payslips?‑‑‑No.

PN2910

You just pay whatever this amount is to the labour hire company, is that right?‑‑‑No.

*** MATTHEW CHARLES BENHAM XXN MR GIBIAN

PN2911

Sorry, you pay that amount. You say you pay in addition to that amount a loading amount, is that right?‑‑‑Yes.

PN2912

Is the corresponding invoice there that we could see? I'm having difficulty seeing the billing periods matching up with those?‑‑‑Yes, I think this one matches up. So invoice 1044 has the FL03 block listed on it. I haven't heard - I think - I can't hear anyone.

PN2913

I apologise. Can you hear me now?‑‑‑Yes, I can, yes.

PN2914

All right. Sorry, it's probably sufficient if I direct your attention to the next page after the table that I asked you about with the lemon stripping, page 7 in the bundle that I have got at least. It's an invoice 1046 of 23 April 2021?‑‑‑Yes, I have 1046.

PN2915

And it identifies an administrative cost of 26.7 per cent?‑‑‑Yes.

PN2916

All right. That's the point that you're making, that there's a separate fee in addition?‑‑‑In addition to - yes.

PN2917

I understand. In any event then the pay is the matter that's dealt with between the workers and the labour hire company, correct?‑‑‑Can you repeat that, please?

PN2918

That is the payment is made by the labour hire company, at least as you understand it, to the workers and you don't have direct involvement in that?‑‑‑No.

PN2919

These documents that are provided to you by the labour hire company record the hours of work of the workers?‑‑‑Yes.

PN2920

So you understand at least the labour hire company records hours of work for the piece workers?‑‑‑Yes.

PN2921

Do you separately record hours of work or is it just something you get back from the labour hire company?‑‑‑I get a daily sheet, record sheet from the supervisor at the end of each day.

*** MATTHEW CHARLES BENHAM XXN MR GIBIAN

PN2922

That is the supervisor employed by the labour hire company gives you a document recording the hours of work of the workers on the day in question?‑‑‑Yes.

PN2923

Thank you, that's the cross-examination.

PN2924

MS BURKE: Nothing from me, your Honour.

PN2925

JUSTICE ROSS: Thank you, Ms Burke.

PN2926

MR DONAGHEY: Nothing in - - -

PN2927

JUSTICE ROSS: Mr Donaghey?

PN2928

MR DONAGHEY: Sorry, sir, nothing in re-exam.

PN2929

JUSTICE ROSS: Thank you, Mr Donaghey. Thank you for your evidence, Mr Benham, you're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.14 AM]

PN2930

JUSTICE ROSS: Mr Gibian, was there anything in that that you would like to tender?

PN2931

MR GIBIAN: Yes, it's probably appropriate just to tender - I don't really need to tender it all, but it's probably sufficient if I tender the first seven pages.

PN2932

JUSTICE ROSS: I might get you to file that separately to make sure your seven pages is matching.

PN2933

MR GIBIAN: Of course.

EXHIBIT #AWU26 PART OF THE NOTICE TO PRODUCE BUNDLE OF MR BENHAM

PN2934

JUSTICE ROSS: All right, we can call the next witness.

*** MATTHEW CHARLES BENHAM XXN MR GIBIAN

PN2935

THE ASSOCIATE: Ms Distill, can you please state your name for the Commission.

PN2936

MS DISTILL: Michelle Distill.

<MICHELLE DISTILL, AFFIRMED [11.15 AM]

EXAMINATION-IN-CHIEF BY MR DONAGHEY [11.15 AM]

PN2937

JUSTICE ROSS: Mr Donaghey? You're on mute, Mr Donaghey.

PN2938

MR DONAGHEY: I can see that, your Honour, and that was a slip of the hand. Ms Distill, can you hear me clearly?‑‑‑Yes, I can.

PN2939

Could you state your full name for the tribunal, please?‑‑‑Michelle Distill.

PN2940

And you have made a statement in this proceeding?‑‑‑I have.

PN2941

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

PN2942

Is your statement dated 9 June 2021?‑‑‑It is.

PN2943

Does it consist of five pages and 33 paragraphs?‑‑‑It does, yes.

PN2944

Does it include three attachments or exhibits marked A to C?‑‑‑It does.

PN2945

On page 3026 of the electronic Court Book. Ms Distill, do you have any corrections you wish to make to your witness statement?‑‑‑There's just two minor ones. Paragraph 1 ‑ ‑ ‑

PN2946

Yes, what do you wish to say about paragraph 1?‑‑‑I just wish to change it that I've only been directly involved in the family orcharding business for 16 years, not 20.

PN2947

So you would like to change those two words in the second line from 20 years to 16 years?‑‑‑Yes, that's correct.

*** MICHELLE DISTILL XN MR DONAGHEY

PN2948

Thank you. Is there any other change you wish to make?‑‑‑Yes, there's one other change, it's paragraph 15.

PN2949

Yes, what did you wish to change?‑‑‑I need to change the number of permanent part-time staff to 11, not nine.

PN2950

Yes?‑‑‑As we've made two casual employees permanent part-time since the statement was made.

PN2951

Whenabout was that change made?‑‑‑That change was made towards the end of the financial year.

PN2952

Thank you. Subject to those two changes, is your statement true and correct to the best of your knowledge?‑‑‑It is, yes.

PN2953

I tender that statement, your Honour.

PN2954

JUSTICE ROSS: I will mark Ms Distill's statement as exhibit NFF13.

EXHIBIT #NFF13 STATEMENT OF MICHELLE DISTILL AS AMENDED

PN2955

MR DONAGHEY: Thank you. Given the explanations from this witness, your Honour, I won't be seeking any leave to ask any further questions.

PN2956

JUSTICE ROSS: Thank you. Mr Gibian.

CROSS-EXAMINATION BY MR GIBIAN [11.18 AM]

PN2957

MR GIBIAN: Thank you, Ms Distill. Can you see and hear me? Your camera just changed its view. That's ‑ ‑ ‑ ?‑‑‑Sorry. Yes, I can. I'm sorry.

PN2958

That's fine. Sorry, you can see and hear me adequately?‑‑‑I certainly can, yes.

PN2959

Excellent. I think you just clarified the number of ongoing employees that you have. During the harvest period you say you - there's up to 160 employees who you take on, and up to 120 at any one time. Is that right?‑‑‑That's correct, yes.

*** MICHELLE DISTILL XXN MR GIBIAN

PN2960

And a proportion of those are - you say 40 per cent are local residents who come year - who return, at least often enough, year on year?‑‑‑That's correct.

PN2961

And the remainders and backpackers primarily?‑‑‑Yes. Backpackers and local workers, yes.

PN2962

Itinerant workers or backpackers, working holidaymakers, you describe them as?‑‑‑That would be correct.

PN2963

Was that the same in the last season, or are you talking prior to that?‑‑‑No, that's pretty consistent year on year.

PN2964

I understand. And where do you get - that is how do you recruit the backpackers?‑‑‑Generally there is Harvest Trail web site, so we get them from - we also go to the local backpackers hostels that we have around locally; the caravan parks, those types of places. And a lot of people just approach us because they're looking for seasonal harvest jobs.

PN2965

All right. And so workers turn up by one method or another, either attracted by a web site or because you've left a flier at the hostel, whatever it might be. And you tell them what the work is and tell them what the piece rate is, and get them to sign a piece work agreement when they turn up. Is that right?‑‑‑That's correct, yes. They're also inducted on site at the same time.

PN2966

That is there's a safety-type induction process ‑ ‑ ‑ ?‑‑‑Yes.

PN2967

How long does that process take?‑‑‑Generally it's half to three-quarters of an hour.

PN2968

All right. And then they start work that day or the next?‑‑‑Yes, generally same day.

PN2969

Same day, all right. In terms of the way in which the - sorry, the fruit you're using are growing, sorry, apples and cherries. That's right?‑‑‑That's correct.

PN2970

And the way in which you say you set the piece rates is that you use employees who you say you know to be average pickers to set the rate at the start of each harvest season. Is that right?‑‑‑That's correct, yes.

*** MICHELLE DISTILL XXN MR GIBIAN

PN2971

So do you have some of your returning workers just do a period of time as a sample. Is that what you do?‑‑‑Essentially, yes, that's the way it works. At the beginning of every season we have people that have come back, and they form the basis of how we set that rate.

PN2972

So that is the ones who have been your loyal returning workers start work, and you sort of use their base - their rate as the basis, is that - or their picking rate as the basis?‑‑‑That's correct, yes.

PN2973

And then you also say you have regard to the guidance materials provided by Primary Employers Tasmania. Is that right?‑‑‑That is correct, yes.

PN2974

But you say you don't follow it religiously, but vary it, usually upwards. Is that right?‑‑‑That is correct. If we look at - we look at what - where they've set it, and if we don't think that it's an adequate amount, we will pay accordingly. So generally it goes up to what we feel is the level.

PN2975

So firstly you say "usually upwards". Was it always upwards, or do you sometimes set a rate that's below the Primary Employers Tasmania recommended amount?‑‑‑We have never set a rate that's below for the set bin rate.

PN2976

Have you ever set the same rate as recommended by Primary Employers Tasmania, or is it always somewhat above?‑‑‑No, generally - in the past it has generally been the rate that the Primary Employers have set. This year was the first year that we actually felt that the - that it needed to be changed and lifted up a little bit.

PN2977

That is based upon the work that your returning workers did in the early part of the season, you felt that the rate that was in the guidance materials from Primary Employers Tasmania would not be sufficient for your farm to meet the requisite standard, and you had to be higher?‑‑‑Yes.

PN2978

All right. At paragraph 24 you talk about the workers. So a worker could usually pick three bins upon commencing work. Is that right?‑‑‑That's correct.

PN2979

How big are those bins? That's ‑ ‑ ‑ ?‑‑‑(Indistinct reply)

PN2980

‑ ‑ ‑ take it, is it? Yes. Sorry, apples, yes?‑‑‑Around 320 kilos per bin.

*** MICHELLE DISTILL XXN MR GIBIAN

PN2981

All right. You've then attached some letters and questionnaire documents to your statement. I'm not sure - sorry, it's annexure C, I think. Do you have those documents?‑‑‑I do.

PN2982

If you just go to the second page of annexure C. It's page 3036 within the Court Book for everyone else's benefit. There's a document which has the National Farmers Federation at the top and has, "AWU Horticulture Award 2020 application." Do you see that?‑‑‑No. Do you know what page it's - I've got the National Farmers Federation letter here with the AWU, so it's essentially a questionnaire. Is that the one that you're looking at?

PN2983

Perhaps it's best to make sure we're on the same page. I don't have separate page numbers in your document, at least in the version that's in the Court Book?‑‑‑Right.

PN2984

Your statement itself goes to paragraph 33, that's the last page?‑‑‑That's correct, yes.

PN2985

After that there's two pages of photos?‑‑‑Yes.

PN2986

Which is annexure A. And then annexure B is the piece work agreement?‑‑‑That's correct, yes.

PN2987

Or a sample piece work agreement?‑‑‑Yes.

PN2988

And on the second page of that document there's the rate specified?‑‑‑Yes.

PN2989

And then the immediate page after annexure - schedule A, I'm sorry - is the next annexure, it has a C at the top?‑‑‑Yes.

PN2990

The next page is a letter dated 6 April?‑‑‑That's correct.

PN2991

And then the page after that, the second page of annexure C - it's page 3036 - is the Farmers' Federation document?‑‑‑Yes.

PN2992

Where did you get these from?‑‑‑They came through from - the Farmers' Federation sent them through to me.

*** MICHELLE DISTILL XXN MR GIBIAN

PN2993

That is on the email and you printed them out?‑‑‑Yes, that's correct, and then they went - I gave them out to our employees who had agreed to write the letters to support the piece rates, I gave them these as well.

PN2994

All right. That is, did you give them out to all the workers?‑‑‑We gave them - we only gave them out to the workers that agreed to write a letter about the piece work, because we obviously couldn't ask - we couldn't make it mandatory that all of our employees completed it.

PN2995

So, you identified those workers who wanted to, as you put it, write a letter in support of piece rates?‑‑‑Not necessarily. We didn't go out specifically asking that. We put it out to our workers what was happening and, yes, most of them were quite happy to (audio malfunction).

PN2996

There was some other noise there (audio malfunction) unless anyone interrupts me. So, you say you put it out to the workers. How did you communicate to the workers that you wanted them to complete this survey document?‑‑‑We gave it to the orchard supervisor.

PN2997

So, you gave them to the orchard supervisor. That was the extent of your direct involvement; is that right?‑‑‑That's correct, yes.

PN2998

What did you tell the orchard supervisor to do?‑‑‑Just asked him if he would talk to the workers of the orchard and anybody that was happy to do what we've done and they gave it - they took it from there.

PN2999

All right. That is, you were telling them to ask the workers to fill in this survey if they were supporting you; is that right?‑‑‑No, it was not a directive or anything like that, it was - it was, "If you would like to fill this out, feel free to fill it out; is you don't want to fill it out or don't want to do anything with it, you don't need to."

PN3000

Can I just take you to the survey document, if you have that in front of you, or the employee questions document?‑‑‑Yes.

PN3001

The first line of it underneath the heading "Employee Questions" says:

PN3002

The Australian Workers' Union has made application to the Fair Work Commission which will effectively eliminate piece work arrangements under the Horticultural Award.

*** MICHELLE DISTILL XXN MR GIBIAN

PN3003

?‑‑‑Yes.

PN3004

Is it your understand that the AWU application wants to eliminate piece rates?‑‑‑Yes.

PN3005

All right. That is, you understand that there's an intention to prohibit the use of piece rates; is that right?‑‑‑Yes.

PN3006

Then if you go down to the third - and that's what you communicated to the supervisors, is it?‑‑‑That's what on the questions, so they answered the questions.

PN3007

Then if you go down to the third paragraph, you'll see in the second sentence, it says:

PN3008

Crucially, it may result in the removal of the requirement for growers to set a piece rate which enables piece workers to earn 15 per cent more than the minimum wage.

PN3009

Do you see that?‑‑‑I do.

PN3010

Is it also your understanding that the AWU wishes to remove the requirement to set a piece rate at 15 per cent above the minimum wage?‑‑‑Yes.

PN3011

If you go to the next page following that document, it's another letter of 6 April 2021; can you see that?‑‑‑Yes, that's correct.

PN3012

Page 3037 of the court book?‑‑‑Yes.

PN3013

The names on the version I have at least are obscured, but you see it indicates, "To whom it may concern" and then there's some text that appears; do you see that?‑‑‑I do.

PN3014

Can I just direct your attention to a couple of aspects. You see the second-last paragraph states on this page:

*** MICHELLE DISTILL XXN MR GIBIAN

PN3015

If the award is changed, then the pickers who are underperforming are getting topped up to the daily award rate, essentially being paid for being on site and not for work they have done. There will be no longer an incentive for me to continue to pick fruit.

PN3016

Do you see that?‑‑‑I do.

PN3017

If you go to the next page, page 3038, that's another survey; do you see that?‑‑‑Yes.

PN3018

Following that, there's another letter, also 6 April?‑‑‑Yes.

PN3019

Which has the same form and text layout; do you see that?‑‑‑I do.

PN3020

Also indicates in the third paragraph that:

PN3021

If the award is changed, the pickers that are underperforming are getting topped up to the daily rate, essentially being paid for being on site and not for work they have done. There will no longer and incentive for me to continue to pick fruit.

PN3022

Do you see that?‑‑‑I do.

PN3023

Who typed these letters?‑‑‑The letters were typed in the office and it was - we'd had the conversation with the people that had filled out the surveys and we drafted the letters together and we changed the bits that were relevant specifically to some of the pickers and a lot of it - that particular paragraph, that was the part that they all felt was the most likely for them not to want to continue to pick on piece work rates, or if they had to go back to an hourly rate, they would drop their performance. So that was - that's essentially the paragraph that they all felt the same on.

PN3024

Firstly, the first stage in the process was that some employees completed the questionnaire. You then brought them into the office, did you, and spoke to them?‑‑‑We had a meeting, yes, we had a group meeting and it was discussed because a lot of - well, some of the people that we employ don't have access to computers or don't have access to that type of thing, so it was a meeting and we spoke about what the questions had been asked and then we drafted the letters, they went back out to the pickers and we made changes if they needed to be made and then they were signed.

*** MICHELLE DISTILL XXN MR GIBIAN

PN3025

When you say "We drafted the letters", that is, did you do that?‑‑‑We drafted the letters together collectively, the people that had filled out the questionnaires and myself.

PN3026

I'll take it one step at a time. There was a group meeting of all the people who had filled out the questionnaires; is that right?‑‑‑That's correct, yes.

PN3027

At which you suggested that they sign a letter as well; is that right?‑‑‑I asked them if they were prepared to do that and they said, yes, they would. So, then we discussed about - then we discussed what we were going to put in the letter and that's essentially what we have done.

PN3028

So you then went back to the office and typed up a letter and some changes were made and you printed out the appropriate one for each person and they signed it; is that right?‑‑‑Yes.

PN3029

There's some marginal differences between some of them, but generally they're much the same; is that right?‑‑‑Yes, that's correct.

PN3030

The particular concern that you understood the workers had was that if they no longer had access to piece rates and could only earn hourly rates, that they might not work as hard; is that right?‑‑‑Yes.

PN3031

They wanted to continue to have the opportunity to do piece rates and to earn more than the hourly rate of pay?‑‑‑That's correct, yes.

PN3032

Can I just have a moment, Your Honour?

PN3033

JUSTICE ROSS: Yes.

PN3034

MR GIBIAN: Thank you, that's the cross-examination.

PN3035

JUSTICE ROSS: Ms Burke?

PN3036

MS BURKE: No cross-examination, thank you.

PN3037

JUSTICE ROSS: Thank you. Mr Donaghey?

*** MICHELLE DISTILL XXN MR GIBIAN

PN3038

MR DONAGHEY: No re-examination, your Honour.

PN3039

JUSTICE ROSS: Thank you for your evidence, Ms Distill, you're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.35 AM]

PN3040

JUSTICE ROSS: We will call the next witness, Mr Eckersley.

PN3041

THE ASSOCIATE: Mr Eckersley, could you please state your full name for the Commission.

PN3042

MR GURNEY: Richard Gurney Eckersley.

<RICHARD GURNEY ECKERSLEY, AFFIRMED [11.36 AM]

EXAMINATION-IN-CHIEF BY MR DONAGHEY [11.36 AM]

PN3043

JUSTICE ROSS: Mr Donaghey?

PN3044

MR DONAGHEY: Thank you, your Honour. Mr Eckersley, could you state your full name for the tribunal, please?‑‑‑Richard Gurney Eckersley.

PN3045

Have you made a witness statement in this proceeding?‑‑‑Yes.

PN3046

Is your witness statement dated 9 June 2021?‑‑‑Yes, that's correct.

PN3047

And it consists of five pages and 36 paragraphs?‑‑‑Correct.

PN3048

It also includes three exhibits, A to C?‑‑‑Yes.

PN3049

For those reading on electronically court book 3054. Mr Eckersley, are there any changes you wish to make to your statement?‑‑‑No.

PN3050

Is your statement true and correct to the best of your knowledge?‑‑‑Yes.

*** RICHARD GURNEY ECKERSLEY XN MR DONAGHEY

PN3051

I tender that statement, your Honour.

EXHIBIT #NFF14 WITNESS STATEMENT OF RICHARD ECKERSLEY DATED 09/06/2021

PN3052

Thank you. Nothing further for this witness, your Honour.

PN3053

JUSTICE ROSS: Thank you. Mr Gibian?

CROSS-EXAMINATION BY MR GIBIAN [11.38 AM]

PN3054

MR GIBIAN: Mr Eckersley, you can see and hear me adequately, can you?‑‑‑Yes.

PN3055

Now, on your property you grow citrus, avocadoes and grapes?‑‑‑Yes.

PN3056

And I think you've indicated that for the citrus and avocado you have 20 to 30 temporary pickers and ten temporary packers during the harvest season?‑‑‑Yes.

PN3057

Is that the number you have at any one time or is that over the whole season?‑‑‑It can fluctuate. So, yes, up and down on that.

PN3058

So at any one time you might have 20 to 30, something - - -?‑‑‑Correct. Correct.

PN3059

And the pickers are generally engaged through a labour hire company, is that right?‑‑‑Correct.

PN3060

And the packers you directly employ?‑‑‑Yes.

PN3061

Are the packers backpackers, prior to this season at least?‑‑‑Yes.

PN3062

And I think in the past you've said you also had some backpackers doing the picking work, but that wasn't the case in the last season, is that right?‑‑‑Yes.

PN3063

You refer in paragraph 14 to using the seasonal worker program?‑‑‑Yes.

PN3064

That's not directly by you being an approved employer under that program, but through a labour hire contractor, is that right?‑‑‑Correct, yes.

*** RICHARD GURNEY ECKERSLEY XXN MR GIBIAN

PN3065

All right. Now, so far as the working hours - sorry, with the packing work is that done on hourly rates?‑‑‑Yes.

PN3066

So it's only the picking work that's done on piece rates?‑‑‑Yes.

PN3067

So far as the working times are concerned in paragraph 15 you say that generally the working hours are 7 am to 4 pm, is that right?‑‑‑Yes.

PN3068

And that there is a strict start time, that is everyone starts at the same time in the morning?‑‑‑Yes, dependent upon weather.

PN3069

What you say in the second sentence at paragraph 15 is, "This strict start time and end time" - okay, sorry, is dependent on the weather. That is there might be a shorter day if the weather bad, is that - - -?‑‑‑Correct.

PN3070

All right. So that's at least leaving bad weather aside a nine hour day or eight and a half hours with a half hour break. Is that generally the work pattern?‑‑‑Yes, dependent on weather, yes.

PN3071

And do you maintain a record of the hours that are worked by those picking workers?‑‑‑Yes.

PN3072

How do you do that?‑‑‑Timesheets they enter manually.

PN3073

That is the workers enter a manual timesheet of when they start and finish each day?‑‑‑Correct.

PN3074

And you maintain that, you keep that record?‑‑‑Correct.

PN3075

The workers are - you pay the labour hire company I assume a bulk amount per week or per fortnight depending on the work that's performed?‑‑‑Yes.

PN3076

And the workers are paid as you understand it at least by the labour hire company and you don't have direct involvement in that process?‑‑‑Yes.

PN3077

All right. Now, you've described - you say you use a piece rate agreement at paragraph 23 and you've annexed a copy of that, correct?‑‑‑Yes.

*** RICHARD GURNEY ECKERSLEY XXN MR GIBIAN

PN3078

I will come back to that in a moment. Then at paragraph 24 you say, "The initial piece rates are established with reference to what we pay in previous seasons", what is in industry standard in your own experience and knowledge. Do you see that?‑‑‑Yes.

PN3079

So I take it at the start of each season you set a rate and inform the labour hire company of what that rate is, is that right?‑‑‑Yes.

PN3080

All right. You then say you review the rate we are paying regularly on a daily basis at the start of the season?‑‑‑Yes.

PN3081

Does that mean that the piece rate will change on a daily basis?‑‑‑It has the ability to change during the season, but, yes, we tend not to change it on a daily basis if we can help it.

PN3082

That is so generally it's the same throughout the whole season, but sometimes there might be a change. Is that a fair reflection?‑‑‑Correct.

PN3083

Was there any change in the piece rate in the last season?‑‑‑I'd have to look back. To my knowledge, yes, there was.

PN3084

And what was that?‑‑‑On one variety it went up for - we increased it.

PN3085

And was that because you found that the rate that you set was inadequate?‑‑‑Correct.

PN3086

All right. Can you just go to - sorry, annexure A to your statement is a guide, and after that annexure B is a piece work agreement?‑‑‑Yes.

PN3087

For everyone else's benefit it's page 3074 in the court book. It's a document headed "Piece work agreement casual employee", and it's a form, a non-completed form I think, between Harvest Workforce and an employee?‑‑‑Correct.

PN3088

Harvest Workforce, is that the labour hire agency?‑‑‑From last season, correct,

PN3089

Do you use different labour hire agencies from season to season?‑‑‑This season due to the shortfall they couldn't access the seasonal worker program.

*** RICHARD GURNEY ECKERSLEY XXN MR GIBIAN

PN3090

Sorry, this is the labour hire agency you used last season, is that right?‑‑‑Correct. Correct.

PN3091

Sorry, and what was the point you're making about the seasonal worker program in the last season?‑‑‑Last year. So we used a new labour hire company this season that had access to seasonal workers.

PN3092

At least so far as Harvest Workforce is concerned, so this is a piece work agreement that you understand is a form used by Harvest Workforce with its employees - - -?‑‑‑Correct.

PN3093

- - - on a labour hire basis to your farm presumably and to other farms as well, is that right?‑‑‑Yes.

PN3094

So you don't enter into a piece work agreement directly with the labour hire workers I take it?‑‑‑This season we have on the advice that that would be recommended for us to do. So this season we have entered it directly with piece work agreements.

PN3095

That is with the labour hire workers?‑‑‑Correct.

PN3096

But this is not an example of that, is that right?‑‑‑No. So, no, this is from last season.

PN3097

All right. So you haven't provided any piece work agreements that the company directly has entered into?‑‑‑No.

PN3098

This piece work agreement if you go to the second page, schedule A, lists the piece work rates?‑‑‑Yes.

PN3099

Do your ones do the same thing?‑‑‑Yes.

PN3100

And at least so far as you enter into direct agreements, if there's a change in the rate throughout the season, do you enter into a new piece work agreement?‑‑‑No, we put the rate - we just enter the rate up.

PN3101

And do you just tell the employees that the rate is changing in that event?‑‑‑Correct.

*** RICHARD GURNEY ECKERSLEY XXN MR GIBIAN

PN3102

You were asked, I think, to produce records in relation to both pay and hours of work of employees - of workers who are doing the picking work. You're aware of that?‑‑‑Some information was requested, correct.

PN3103

But you're aware that it included records in relation to pay and hours of work?‑‑‑I think that was for May this year.

PN3104

Yes?‑‑‑Yes, I was in hospital May this year, so we had to delay harvest until June. So we do have June's records, but we were unable to produce May's records as I wasn't well.

PN3105

That is no work was being done in May. Is that what you're saying?‑‑‑Correct.

PN3106

I understand. What you did produce was three pages of documents, did you?‑‑‑Yes. The Harvest Workforce was asked to provide those documents on my behalf, and they were the ones that was provided.

PN3107

Do you have those three pages?‑‑‑Yes. Yes, I do.

PN3108

The first page is a document that has on the top:

PN3109

All farms in Victoria/New South Wales: harvesting prices August 2019.

PN3110

?‑‑‑Yes.

PN3111

Is this a document you had seen before you were given it by Harvest Workforce for the purposes of this ‑ ‑ ‑ ?‑‑‑Yes. Just to correct myself, that document I had requested directly from that farm to use as a reference to test our picking rate.

PN3112

Sorry, when did you request this document from Harvest Workforce?‑‑‑I requested this directly from a farm in Victoria back in 2019.

PN3113

Perhaps if we go back a step. What is this document, as you understand it?‑‑‑So this is a reference from one of the largest mandarin growers in Victoria.

PN3114

And you asked them to provide you with what they were paying. Is that right?‑‑‑Correct.

*** RICHARD GURNEY ECKERSLEY XXN MR GIBIAN

PN3115

What's the second document?‑‑‑The second document is - that's a spreadsheet that we use to check our bin rates.

PN3116

That is it's a document you produced?‑‑‑Correct.

PN3117

And the third document is the same, is it?‑‑‑Correct.

PN3118

And you didn't produce any hours or pay records because you just closed the farm down in May. Is that right?‑‑‑Correct.

PN3119

Understood. So you do have hours records for other months?‑‑‑Correct.

PN3120

And pay records for other months?‑‑‑Yes.

PN3121

I understand that. Can I just have a moment? Sorry, just one more matter.

PN3122

Can you just go to the second document in the three-page bundle. That's the document you prepared which is headed "2020 Season"?‑‑‑Yes.

PN3123

What you've done here is at the top you've recorded the hourly rate, that is 19.84, and added 25 per cent casual loading, and then a 15 per cent in addition to the casual hourly rate?‑‑‑Correct.

PN3124

You've then, for each crop, firstly for Imperial you've recorded eight and a half hours, that's the daily working period?‑‑‑Correct.

PN3125

Inserted the hourly rate to get a total daily amount of 236?‑‑‑Yes.

PN3126

Then you've divided that by the bin rate that you determined of $90?‑‑‑Yes.

PN3127

And that's how you reached the bin target of 2.6?‑‑‑Yes.

PN3128

That's as we read this document?‑‑‑Yes.

PN3129

Thank you. That's the cross‑examination.

*** RICHARD GURNEY ECKERSLEY XXN MR GIBIAN

PN3130

JUSTICE ROSS: Ms Burke?

PN3131

MS BURKE: No questions, thank you, your Honour.

PN3132

JUSTICE ROSS: Mr Donaghey?

PN3133

MR DONAGHEY: Nothing further, your Honour.

PN3134

JUSTICE ROSS: Thank you for your evidence, Mr Eckersley. You're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.51 AM]

PN3135

JUSTICE ROSS: Did you want to tender those three pages, Mr Gibian?

PN3136

MR GIBIAN: Yes, thank you, your Honour.

PN3137

MR DONAGHEY: Your Honour, that's the final lay witness for the NFF.

PN3138

JUSTICE ROSS: Thank you. I will mark Mr Eckersley's notice to produce bundle as exhibit AWU27.

EXHIBIT #AWU27 DOCUMENTS PRODUCED BY RICHARD ECKERSLEY

PN3139

Thanks, Mr Donaghey. Can we turn to Mr King. You've heard, Mr Dalton, he's proposing to call Mr King at 1 o'clock. There has been the previous discussion about whether there has been compliance with the notice to produce material provided. Is there a representative of Mr King? Mr King's lawyer here? No? All right. Mr Gibian or Ms Burke, unless you wish to be heard in relation to an alternative course, I propose we adjourn until 1 o'clock, and then Mr Dalton calls Mr King.

PN3140

MR DALTON: Thank you, your Honour. Mr Ternovski will take Mr King at 1 pm. Just before we adjourn, could I just clarify one matter?

PN3141

JUSTICE ROSS: Certainly.

*** RICHARD GURNEY ECKERSLEY XXN MR GIBIAN

PN3142

MR DALTON: My instructions are that on 2 July Seyfarth Shaw emailed the AWU to inform the union that Seyfarth Shaw was not acting on behalf of either Mr King of the Costa Group, and accordingly it had no instructions to accept service of the notice to produce or any order that might subsequently be made. Your Honour might recall that the return of the union's application for the production order against Mr King was 7 July.

PN3143

JUSTICE ROSS: Yes. No, no, with Mr Gibian's clarification earlier, Mr Dalton, I understand what has taken place, that you and your instructor have taken appropriate steps to advise the union that you weren't acting for Mr King, so that's fine.

PN3144

MR DALTON: Yes. It was just the timing issue I wanted to clarify, that it was before the return.

PN3145

JUSTICE ROSS: Yes. No, no, I follow. Thank you.

PN3146

MR GIBIAN: I think, your Honour, I did clarify earlier that we then took - the union then took steps ‑ ‑ ‑

PN3147

JUSTICE ROSS: No, no, I appreciate - we don't need to go into this any further. You've indicated that you had served the document on Costa and Mr King. You can deal with that through his evidence. But I'm assuming then we will proceed on the basis that Mr King will be called at 1 pm.

PN3148

MR DALTON: Yes, your Honour.

PN3149

MR GIBIAN: Thank you, your Honour. For our part I think I might just seek some instructions in the period before 1 pm as to what approach we advise, but we will deal with it then. We haven't had an opportunity to discuss that between ourselves. If there's any contrary position I want to put, I can't really do it before 1 o'clock.

PN3150

JUSTICE ROSS: No, that's fine. All right, we will adjourn till 1 pm. Thank you.

LUNCHEON ADJOURNMENT [11.55 AM]

RESUMED [12.59 PM]

PN3151

JUSTICE ROSS: Yes, you want to call Mr King?

PN3152

MR TERNOVSKI: Yes, your Honour, I call Mr King.

PN3153

THE ASSOCIATE: Mr King, can you please state your full name for the Commission.

PN3154

MR KING: Nicholas David King.

<NICHOLAS DAVID KING, AFFIRMED [1.00 PM]

EXAMINATION-IN-CHIEF BY MR TERNOVSKI [1.00 PM]

PN3155

JUSTICE ROSS: Mr King, I wonder if you are able to turn up your microphone? I'm just having a little - I can hear you but you're quite faint?‑‑‑Okay, I'll just have a look at that. Is that better?

PN3156

Yes, that is?‑‑‑I'll speak up, that's fine.

PN3157

Thank you. Yes, Mr Ternovski?

PN3158

MR TERNOVSKI: Mr King, could you please repeat your full name?‑‑‑Nicholas David King.

PN3159

What is your occupation?‑‑‑I'm the capital projects and continuous improvement manager for the Berry Category at Costa.

PN3160

What is your business address?‑‑‑Business address is Range Road at Coffs Harbour.

PN3161

Mr King, you have made two statements in this matter?‑‑‑Correct.

PN3162

Is your first statement dated 11 June 2021?‑‑‑Correct.

PN3163

It comprises of 65 paragraphs?‑‑‑Correct.

PN3164

That's at court book 3102. Mr King, are the contents of the statement true and correct to the best of your knowledge?‑‑‑They are.

*** NICHOLAS DAVID KING XN MR TERNOVSKI

PN3165

Your Honour, I'll tender that statement.

PN3166

JUSTICE ROSS: I will mark Mr King's first statement as exhibit AFPA2.

EXHIBIT #AFPA2 WITNESS STATEMENT OF NICHOLAS DAVID KING DATED 11/06/2021

PN3167

MR TERNOVSKI: Mr King, you've also made a second statement in this matter?‑‑‑I have.

PN3168

Is that statement dated 16 July 2021 - today, that is?‑‑‑Correct, it is.

PN3169

It consists of 22 paragraphs and one annexure?‑‑‑Correct, it does.

PN3170

Are the contents of that statement true and correct to the best of your knowledge?‑‑‑They are.

PN3171

I tender that statement, your Honour.

PN3172

JUSTICE ROSS: I will mark Mr King's statement of today's date - - -

PN3173

MR GIBIAN: Your Honour.

PN3174

JUSTICE ROSS: Yes?

PN3175

MR GIBIAN: I do have an objection to paragraph 18 of the statement.

PN3176

JUSTICE ROSS: The parties have agreed as to how they are going to be dealing with witness objections - statements - and that is they weren't to be taken but they would be the subject of submissions later.

PN3177

MR GIBIAN: Yes, your Honour. Obviously this was a statement that we received just before the start of hearing this morning that we hadn't seen previously and - - -

PN3178

JUSTICE ROSS: Well, when you had reached that agreement, you hadn't seen some other statements either.

*** NICHOLAS DAVID KING XN MR TERNOVSKI

PN3179

MR GIBIAN: I'm not sure that's - well - no, I'm not sure that is true, your Honour, but, in any event, look, the issue is there is a response here to Mr Carter which is wholly hearsay in nature, that is, Mr King says he asked another individual to provide some information.

PN3180

JUSTICE ROSS: Well, why can't you deal with that in submissions in the same way as you will be dealing with every other piece of hearsay evidence that is before us?

PN3181

MR GIBIAN: Look, I understand what your Honour says. I have just been provided with some instructions, obviously only very quickly, since this morning, and some of that material is wrong, as I understand my instructions, and there doesn't seem to be any point in Mr King any questions about that since, as I understand his evidence, he's just reporting what someone else told him.

PN3182

JUSTICE ROSS: You can ask him whether he's just reporting what someone else has told him when you cross-examine him.

PN3183

MR GIBIAN: Yes. I guess that's right, your Honour, but, as I say, it doesn't appear that that's - well, that's what he says in his statement. In any event, it's just difficult to deal with that matter having only become aware of it this morning and in circumstances in which there doesn't seem to be any opportunity for us to test that.

PN3184

JUSTICE ROSS: I'm still struggling to see why that isn't a submission that can be advanced about any hearsay statement in any of the statements before us. Why should we deal with this aspect and one witness's reply statement any differently?

PN3185

MR GIBIAN: Well, it runs to - it's only that this raises very specific factual matters in relation to which these matters weren't put to Mr Carter, who has given his evidence, and in relation to which we can't - it's not general - - -

PN3186

JUSTICE ROSS: No, no, I understand all that. You can make that submission, can't you?

PN3187

MR GIBIAN: Look, I can make that submission. If the Commission wants to deal with it in that way, we will deal with it in that way, but, as I say, it seems to be in a somewhat different category, both because of its timing and because of the specific factual nature of the assertions made on a hearsay basis.

*** NICHOLAS DAVID KING XN MR TERNOVSKI

PN3188

MR TERNOVSKI: Your Honour, if it assists, AFPA would not oppose Mr Carter being recalled to very briefly deal just with that issue, if that's what my learned friend Mr Gibian wants to do.

PN3189

JUSTICE ROSS: Mr Gibian?

PN3190

MR GIBIAN: Look, it seems undesirable that we have to resort to that step at this point in time, but we will give some consideration to that. Obviously we've only had this since just before the hearing this morning.

PN3191

JUSTICE ROSS: If Mr Carter is to be recalled, he can be dealt with on Tuesday morning when we're dealing with Mr Houston. You should advice Mr Ternovski if that's the course you intend to take, and advise him by 12 noon on Monday, and file a short supplementary statement by the witness by 4 pm on Monday if that's the course you wish to take. All right?

PN3192

MR GIBIAN: May it please.

PN3193

MR TERNOVSKI: Your Honour, can I just clarify that the supplementary statement would only deal with paragraph 18 of Mr King's second statement if it were to be filed.

PN3194

JUSTICE ROSS: That was my understanding, Mr Ternovski, because that's the complaint that is raised against the second statement, that the witness hadn't been given an opportunity to comment on that.

PN3195

MR TERNOVSKI: Thank you, your Honour.

PN3196

MR GIBIAN: Certainly that's my understanding at the moment, your Honour, based upon the limited opportunity we've had to obtain those instructions. If that position changes we will obviously have to ‑ ‑ ‑

PN3197

JUSTICE ROSS: We're only going to hear from Mr Carter in reply to what Mr King says about Mr Carter's statement. It's not an opportunity for Mr Carter to reopen any other issue other than addressing the matters Mr King has raised in reply.

PN3198

MR GIBIAN: Yes, your Honour. I wasn't suggesting to the contrary. As I say, the only instructions that I've got are in relation to paragraph 18, but I wasn't suggesting going outside the bounds of what is dealt with in Mr King's statement.

*** NICHOLAS DAVID KING XN MR TERNOVSKI

PN3199

JUSTICE ROSS: All right.

PN3200

MR GIBIAN: (Indistinct)

PN3201

MR BRETHERTON: Sorry, your Honour.

PN3202

JUSTICE ROSS: Yes.

PN3203

MR BRETHERTON: I'm just learning about this statement now, and I've had a look on the web site as well, so obviously I haven't had any time to go over this new statement, and I haven't received any correspondence or emails about it either, so ‑ ‑ ‑

PN3204

JUSTICE ROSS: We will have to do the best we can. It replies to the statements called by other parties, not by any witness that you've called, so they will be in a position to deal with it.

PN3205

MR BRETHERTON: Okay. Thanks, your Honour.

PN3206

JUSTICE ROSS: Anything further before I mark the second witness statement?

PN3207

MR TERNOVSKI: Not from me, your Honour.

PN3208

JUSTICE ROSS: I will mark that as exhibit AFPA3.

EXHIBIT #AFPA3 SUPPLEMENTARY WITNESS STATEMENT OF NICHOLAS KING

PN3209

MR TERNOVSKI: No further questions from me, your Honour.

PN3210

JUSTICE ROSS: Thank you. Mr Gibian.

CROSS-EXAMINATION BY MR GIBIAN [1.08 PM]

PN3211

MR GIBIAN: Mr King, can you see and hear me adequately?‑‑‑I can, yes.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3212

Your present position, as I understand it, is national capital operations projects manager for Costa. Is that right?‑‑‑For the berry category, yes.

PN3213

So your only responsibilities are with respect to the berries part of the business?‑‑‑Correct.

PN3214

All right. Sorry, just remind me how many farms does that involve?‑‑‑Regions, we're Queensland, New South Wales, WA, Tasmania and Victoria. Tasmania we probably have - I think it has got six sites; Coffs Harbour is one; three farms up in Far North Queensland; and one farm in WA.

PN3215

And there are separate divisions, are there, for the other products or other crops within the business?‑‑‑Yes. The categories are separate business units, correct.

PN3216

And you have no involvement outside of berries?‑‑‑No.

PN3217

And so far as your current role is concerned, I assume it's somewhat removed from the day to day management of the farms?‑‑‑Because of continuous improvements I'm monitoring the farms all the time and looking at ways to improve efficacy within the units.

PN3218

All right. But you're not on a day to day basis supervising the workers, either harvesting workers or other workers at the farms?‑‑‑No, I am not.

PN3219

And never have, at least so far as your time at Costa?‑‑‑No, I have not.

PN3220

And I assume you weren't doing that when you were a consultant either?‑‑‑Not directly supervising, no.

PN3221

And in paragraph 5, the earlier positions, at least since you came to Australia, were at Manbulloo Mangoes, is that right, and Sunny Ridge Farms, and Burlington Berries. Is that right?‑‑‑Correct.

PN3222

Did they involve direct work on the farm supervising farm work?‑‑‑Some of it does involve - involving, you know, working with fellows in the field, but not the full-time aspect of the role, no.

PN3223

That is there was a higher managerial level and there were supervisors who supervised the workers ‑ ‑ ‑ ?‑‑‑Correct.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3224

‑ ‑ ‑ both harvesting and doing other work within the farms. Correct?‑‑‑Correct.

PN3225

And that's the case for all the positions that you list in the final sentence of paragraph 5, since you came to Australia?‑‑‑Correct.

PN3226

You give some information about the workforce from paragraph 22 in your first statement. And in paragraph 23 you say that - you refer to a period prior to the pandemic and indicate the workforce - the typical - what you say was the typical composition at a Costa farm?‑‑‑Correct.

PN3227

Are you referring to the berries business in that respect?‑‑‑I am, yes.

PN3228

And you say that approximately 40 per cent backpackers, 30 to 40 per cent third party - I take that that should be labour hire, is a reference to labour hire in (b)?‑‑‑Correct.

PN3229

And the 20 to 30 per cent local workers. Is that right?‑‑‑Correct.

PN3230

So far as the backpackers are concerned, how are the backpackers recruited?‑‑‑Either they apply for roles online themselves, so through Costa.

PN3231

That is there is a facility on Costa's web site, is there, for job applications to be submitted?‑‑‑Correct.

PN3232

And is there any other method?‑‑‑People walk in up to the gate as well, so they approach through the gate.

PN3233

All right. So the two methods are if someone looks at the Costa web site they can make an application, and I assume that's electronic, and they receive a response from that indicating whether there's a job available or not?‑‑‑Correct.

PN3234

Or they might turn up just at the farm gate?‑‑‑Correct.

PN3235

Again that's not a process that you're directly involved in, I assume?‑‑‑No, I'm not directly involved in it.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3236

But your understanding is, at least, is other than having the facility on the web site, you don't otherwise advertise jobs. Is that right?‑‑‑I'm not in the recruitment department, so I couldn't answer that completely, sorry.

PN3237

You don't know one way or the other, but your understanding is people either apply through the web site or turn up at the farm?‑‑‑They seem to be the biggest catchment areas, yes.

PN3238

And so far as the second category, labour hire workers, I assume that the company has regular labour hire providers who it engages?‑‑‑It does.

PN3239

That might change from time to time, but there are companies that operate in the different regions that you use?‑‑‑Correct.

PN3240

Is it a small number or a large number? That is, do you mainly use one or two companies, or is it a myriad?‑‑‑There's a number of companies.

PN3241

All right. In any event, so far as their labour is concerned, you just tell them how many people you need, and they arrange for appropriate workers to attend?‑‑‑Not precisely, no. It's more planned, and because of most of that tends to be seasonal worker program from the Pacific Islands through DESE, through the Department of Education, Skills and Employment, it has to be planned a season out, so we're kind of 12 months planning, so it's a bit more organised than ‑ ‑ ‑

PN3242

All right. Well, maybe a little more in advance than was implied in the question I asked you, but at least you plan more in advance and you - I don't want to say you order workers, but you indicate the workforce that you want for the coming season through a particular labour hire provider, and that's then - all the arrangements are made to supply the workers by the labour hire company?‑‑‑Correct.

PN3243

The local workers that you refer to, the 20 to 30 per cent, are they doing seasonal work, or is that more likely to be the ongoing employee?‑‑‑Both.

PN3244

Firstly are most of the ongoing employees local workers?‑‑‑Most of the full-time staff are, yes, obviously Australians, yes.

PN3245

But there is also some that do seasonal work. Is that right?‑‑‑Correct.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3246

And are they recruited in the same way as the backpackers as you understand it, that is either they turn up or submit applications through the website?‑‑‑That's along with - we have some that return every year just for seasonal work, yes.

PN3247

I take it they just turn up every year or there's some sort of understanding as to when they should arrive?‑‑‑Yes. We have some long term relationships with some locals.

PN3248

All right. Now, if you're still with your statement, it's page 6 of your statement, page 3107 of the court book, in paragraph 24 you make an assertion about the reason why the local labour percentage is low. Do you see that?‑‑‑Correct, yes, I do.

PN3249

You're making or giving an opinion here as to the reason why people who have not sought employment with Costa did not seek employment with Costa, is that right?‑‑‑I'm making a statement as I see it over why I feel that people are not, locals are not employed in the Berry category.

PN3250

That is locals can seek jobs and some do with Costa either by turning up at the farm or submitting an application through the website in the same way as the backpackers could, correct?‑‑‑Correct.

PN3251

And as you've told us some do, correct?‑‑‑Correct.

PN3252

And you're speculating as to why other people who do not submit such an application chose not to do so. Is that right?‑‑‑No, I'm just giving my view on why - why we struggle if you like, for want of a better word, to recruit more locals.

PN3253

That is if more people submitted an application who were local residents through the website you would potentially have a higher percentage, correct?‑‑‑Along with that and the other methods of applying to it, yes.

PN3254

Either turning up at the gate or submitting an application through the website, correct?‑‑‑Yes, and the adverts in the papers and all the other local ways they do to recruit, yes.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3255

All right. Well, I asked you about that earlier and you said you didn't know or have any other involvement, but is there some other method other than the website and the walk up?‑‑‑I also said I wasn't the recruitment specialist, so, you know - yes.

PN3256

So do you know whether there are other methods used to recruit, or not?‑‑‑There are, they use - they use media, they use papers, but I'm not, you know, aware all the myriad of ways, they're forever trying new ways.

PN3257

All right. In any event a certain number of people do, local people do submit applications through that process or get a job through that process, correct?‑‑‑Correct.

PN3258

And in paragraph 24 you're speculating as to why more people don't make such an application, correct?‑‑‑Correct.

PN3259

That is you're speculating as to why people who did not seek work with Costa made a decision not to do that, correct?‑‑‑Sorry, could you say that again, please?

PN3260

That is you're making - giving an opinion as to why people who did not submit an application to work for Costa chose not to pursue that type of employment, correct?‑‑‑Correct.

PN3261

That is you're not referring to - and obviously those are people, you don't know who they are and you haven't spoken to anyone about the reasons for not choosing to contact Costa, correct?‑‑‑Not individually, no.

PN3262

How could you speak to anyone - you don't know who the people are, correct?‑‑‑Correct, but as a company we do market research of our - you know, on our labour base, on our labour markets.

PN3263

Are you involved in that?‑‑‑No. I do see results though and read up on it.

PN3264

Do you agree that maybe the rate of pay might have something to do with the attractiveness of the work as well?‑‑‑I do not.

PN3265

Are you saying you don't think the fact that the rates of pay have anything to do with the degree of attraction of the work for Australian residents?‑‑‑In what - in what context, sorry?

PN3266

You're giving an opinion, aren't you, in paragraph 24 as to why you think Australian residents might not be applying for work, correct?‑‑‑Correct.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3267

Do you accept that the rates of pay might have something to do with that?‑‑‑They could do, yes.

PN3268

Now, over the page, page 7 of your affidavit, page 3108 of your affidavit, at paragraph 25 you refer to the third party labour through the Pacific - workers from the Pacific Islands. Do you see that?‑‑‑Yes.

PN3269

I take it, and I think you indicated this in answer to an earlier question, that the Pacific Island worker who has been working for Costa up until this point at least have been engaged through third party labour hire, is that right?‑‑‑In the Berry category, correct.

PN3270

We will leave the other to one side if that's outside your area of work. You say in the second sentence of paragraph 25 that Costa Berry category has also recently become an approved employer for the seasonal workers. Do you see that?‑‑‑Yes.

PN3271

When did that happen?‑‑‑Last year.

PN3272

And have you directly employed workers through that program in the Berry category yet?‑‑‑We have, we got 70 this year.

PN3273

And when did they start?‑‑‑They start - I haven't got the exact details, but they're due to come in for this season I believe.

PN3274

They haven't started yet, but you've made arrangements for that to occur?‑‑‑The applications for their visas or their inductions in our countries and everything else, yes.

PN3275

And they're going to arrive later this year sometime, is that - - -?‑‑‑I believe so. I'm not - I haven't got the details, sorry.

PN3276

You're not involved in that process directly?‑‑‑No.

PN3277

Were you involved in the application process to become an approved employer under the season workers program at all?‑‑‑Not with Costa, but I have previously with other roles.

PN3278

The recent process of Costa Berry becoming an approved employer is not a matter that you had any involvement in?‑‑‑Not - not directly, no.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3279

You say you'd had involvement in that previously, which role was that in?‑‑‑I did it with Manbulloo Mangoes and also been involved with Burlington Berries.

PN3280

Sorry, give me a moment. So that was in 2017?‑‑‑Correct.

PN3281

Or before 2016, is that right?‑‑‑Yes. I can't find the exact dates. I'll take your word for it, yes.

PN3282

I think you said you were at Manbulloo Mangoes from February 2017 until July 2018?‑‑‑Yes. So it would be - it would be when I was at Burlington and when I was at Manbulloo, yes.

PN3283

And so far as Manbulloo was concerned was it already an approved employer?‑‑‑No, it was not.

PN3284

So there was the application for approval at that point on?‑‑‑Correct.

PN3285

Can I then take you forward in your statement to paragraph 30 on page 9, at page 3110 of the court book?‑‑‑Yes, I have it.

PN3286

There's a heading there "Skill development", do you see that?‑‑‑Yes.

PN3287

The first paragraph under that heading at paragraph 30 you say firstly that picking is not a highly skilled job, and then in the third sentence you say:

PN3288

A worker will be competent to perform horticultural work when they have the skills, knowledge and practical experience to identify when the fruit is ripe for picking and know how to appropriately perform the task of picking.

PN3289

Do you see that?‑‑‑Yes, I do.

PN3290

So at least as you understand the concept the skill involved in the picking work involves firstly learning how to identify the fruit which is appropriate to be picked, is that right?‑‑‑Correct.

PN3291

You're just freezing a little bit in the vision, but - - -?‑‑‑Sorry, I'm still here.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3292

So long as my voice isn't breaking up or anything and you can hear me that's fine. I just noticed the vision was freezing. I will continue and tell me if you can't hear me appropriately?‑‑‑Will do.

PN3293

So the first aspect of the skills involved is identifying picking the product, that it is appropriate to pick, correct?‑‑‑Not necessarily the first aspect. The first aspect is - - -

PN3294

The first aspect you mention in that paragraph?‑‑‑Yes, yes.

PN3295

I'm not ranking them in order. Then also appropriate technique; correct?‑‑‑Correct.

PN3296

That is, how to pick the fruit in a manner which doesn't damage it or degrade the value of the product?‑‑‑Correct.

PN3297

That is, the skills involved aren't just about speed, they are about doing the work in an appropriate manner?‑‑‑Carrying out the task correctly, correct.

PN3298

That is, you could have a new worker who is, maybe because of physical attributes, fast in the sense that they're able to pick a lot of product, but they do so in a manner which damages the crop, perhaps because of the speed at which they are picking; correct?‑‑‑It's possible, yes, correct.

PN3299

That person, would that person in the example I've proffered to you be in the competent category so far as you understand it?‑‑‑No, I would say for the aptitude and attitude for picking, that they don't have the quality standard, so they'd still be at learning/incompetent stage.

PN3300

All right. Now, you then give some evidence about your belief, at least, as to the time periods for becoming competent, as you understand that concept; correct?‑‑‑Correct.

PN3301

Is there any test or assessment that's undertaken of workers on the Berry farms to work out whether they're competent or not?‑‑‑There is in line with the piece rate setting, do you mean? Sorry, just clarify that for me.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3302

A worker starts work with the company, I take it there's some kind of induction process where they're shown (indistinct) and, I hope, some sort of safety induction and the like; correct?‑‑‑Correct, yes.

PN3303

Then they start work; correct?‑‑‑They then - yes, they start as a training gang so they know, you know, the task and they're training to do the task at hand.

PN3304

So you have training gangs?‑‑‑Some sites have training gangs, some have increased supervision for the new starters.

PN3305

How long is someone in a training gang for?‑‑‑It depends on their aptitude and attitude to the job and how quickly they take off.

PN3306

Is there some test or assessment where they graduate?‑‑‑It's - yes, it's based on, basically, a lot of the speed and that they can do the role to the correct quality.

PN3307

Is there a document setting out what the criteria are?‑‑‑I believe we have quality documents and such like in our supervisor piles out on field along with pictures and, you know, very visual aids for the new starters.

PN3308

You said you believe; do you know whether you do or not?‑‑‑I know we do out on the chariots, yes.

PN3309

But that's not something you have direct involvement in or are familiar with?‑‑‑I'm familiar with it; I don't have direct involvement with it.

PN3310

Is there a record made of which employees are considered to be competent and which are not?‑‑‑No, there is not.

PN3311

So, if the union wanted to exercise its right of entry and ask the company to produce what documents it had which indicated which employees were considered to be competent or not competent, there would be no document to produce; is that right?‑‑‑No, there would be a document to produce for that session on that task on that day.

PN3312

Is there, at any point in time, a document setting out which employees are competent or not competent?‑‑‑Sorry, say that again for me, please.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3313

Is there a document which would describe or record which employees at any particular time are competent or not competent?‑‑‑Yes, I believe there is a document, yes.

PN3314

You believe there is? What is that document?‑‑‑For each individual session on each individual batch on each individual task.

PN3315

If there's a group of workers picking a particular plot in a morning - - -?‑‑‑Correct.

PN3316

- - - there's a document recording how much they pick; is that right?‑‑‑Correct, correct.

PN3317

Is that the document you're referring to?‑‑‑Correct, yes.

PN3318

And the people are competent or not competent depending on whether they're above the average or below the average; is that what you mean?‑‑‑Yes, so we would record their earnings and, yes, relate that back to our piece rate setting, yes.

PN3319

So that's just a record of what the worker does in a particular period of work; is that right?‑‑‑Correct.

PN3320

So there's no document setting out which workers out of the whole workforce you consider at any point in time to be competent or not competent; is that right?‑‑‑No, that's - that's what that does. Each task has a separate rate, so each session, each batch, each task it's quantified separately, we don't quantify for the single person. So, one day when they may be competent, they may not be competent the following day.

PN3321

So, someone is not either competent or not competent in a general sense, it's assessed based upon just how much they pick at each period of work; is that right?‑‑‑Generically speaking, yes.

PN3322

As you say, a person might be considered competent one day and not competent the next day, just depending on what the outcome of their work was?‑‑‑To clarify that, it doesn't - normally, once they're competent, they stay in that pack, but, yes, you're right, it can - it can vary.

PN3323

Can I just have a moment?

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3324

Can you go back to your statement then, Mr King?‑‑‑Yes.

PN3325

Can you go to paragraph 34 at the top of page 10, page 3111 of the court book?‑‑‑Yes, I have it.

PN3326

Can you just read that paragraph yourself again, if you need to?‑‑‑Yes.

PN3327

Do you see in the first sentence, you say:

PN3328

To be clear, by "competent", I mean a worker is suitable, sufficient and adequate to perform picking work.

PN3329

Do you see that?‑‑‑Apologies, you said paragraph 33?

PN3330

Sorry, 34. I apologise. If I didn't say 34, it was an error on my part?‑‑‑I've read it, yes.

PN3331

You see in the first sentence, you say:

PN3332

To be clear, by "competent", I mean a worker is suitable, sufficient or adequate to perform picking work.

PN3333

Do you see that?‑‑‑I do.

PN3334

And that by "averagely competent", they're getting close, you mean an ordinary, normal or typical competent employee; do you see that?‑‑‑I do.

PN3335

Did you write that paragraph?‑‑‑I did. It's hard to - I'm trying to explain this average competent picker scenario and how I judge it with the aptitude and attitude.

PN3336

There's two things out of that. Firstly, that's not something that you do in your current role, you're not involved in that process; correct?‑‑‑I am involved in the continuous improvements in that process.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3337

Yes, but you're not at the workplace, at the farms, judging the competence of workers; correct?‑‑‑I am - no, I'm analysing and looking at ways to improve and retain staff and, yes, so I'm working as part of that team.

PN3338

Secondly, what I asked you was did you write this paragraph? Did you write those words in your statement?‑‑‑I - I did, yes.

PN3339

All right?‑‑‑This is my statement.

PN3340

They seem to be a quote from a Federal Court judgment in the matter of Hoo(?). Have you read that judgment?‑‑‑I haven't, I don't think, no.

PN3341

Is it right to say that a lawyer drafted this paragraph for you?‑‑‑I did involve - I had dealings with the lawyers when I was doing my submission of my draft.

PN3342

MR TERNOVSKI: Your Honour, I just flag that any further, and I think I'm going to need to object on the basis of privilege, your Honour.

PN3343

MR GIBIAN: I can ask the witness the process without asking the content of any communication between the lawyers and the witness, for whom they are not acting, as they have made clear.

PN3344

Mr King, can you still hear me?‑‑‑I can.

PN3345

Can I just ask you then about the process of - for preparation of your statement you spoke to a lawyer, did you? Is that something you did?‑‑‑My statement was - I drafted my statement with lawyers in attendance.

PN3346

You met with some lawyers, either - in person, did you?‑‑‑Not in person, like this, through Teams.

PN3347

Through Teams. And you spoke to them for a period of time ‑ ‑ ‑ ?‑‑‑I did, yes.

PN3348

And did they then provide you with a document out of that discussion?‑‑‑They provided me with a draft document which I edited. We drew it up together.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3349

So you had a discussion, the lawyer sent you a document, you made some changes to it, and then it went backwards and forwards maybe a few times, and then you signed it. Is that right?‑‑‑Pretty much, yes.

PN3350

I would be right in saying that it was the lawyers who drafted these words in paragraph 34, wouldn't I, and sent it back to you?

PN3351

MR TERNOVSKI: Your Honour, the witness can't answer this question without revealing a privileged communication, and the privilege is (indistinct) privilege, your Honour, not the witness's.

PN3352

JUSTICE ROSS: Mr Gibian.

PN3353

MR GIBIAN: I withdraw the question. I think the point is obvious enough. Can I just have a moment, your Honour?

PN3354

JUSTICE ROSS: Sure.

PN3355

MR GIBIAN: And the lawyers you were dealing with in this respect were Seyfarth Shaw. Is that correct?‑‑‑Sorry, could you say that again, please.

PN3356

The lawyers you were dealing with were the lawyers for the AFPA, Seyfarth Shaw. Is that right - in relation to the preparation of your statement?‑‑‑They're the ones I gave my statement to, yes.

PN3357

In terms of the - if you then go back to paragraph 33, you give some time periods there as to what you say - the periods you say it might take for employees to become what you consider competent in accordance (indistinct) language. Do you see that?‑‑‑I do.

PN3358

Firstly you're not purporting to give exact evidence or base that on any objective criteria as to what is competent or not competent. Correct?‑‑‑Just experience.

PN3359

That is there's no objective criteria by which one can - you make those observations?‑‑‑Sorry, what do you mean by criteria?

PN3360

There's no document setting out what criteria have to be met before you say that someone is competent or not competent. Correct?‑‑‑Correct.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3361

A number of other farmers, people who actually work on farms more directly, have given evidence in these proceedings. They, to the extent they deal with the subject, say that workers are up to speed usually within a day or two, or a week at the most. Can I just suggest to you that the periods you've given here with respect to the berry business of Costas, are substantially exaggerated?‑‑‑You can say that if that's your belief, yes.

PN3362

Yes. Do you agree with me?‑‑‑I do not.

PN3363

Can I then move through your statement. You give some evidence about attrition rates, that is the number of people who leave within a short period of time of starting work. Is that largely within the backpacker component that you're referring to?‑‑‑It is largely within the - yes, they kind of migrated - yes, the backpackers.

PN3364

And again that's not a matter that you directly have involvement in, you just asked for some information from the HR area. Is that right?‑‑‑That's right. I just get feedback and put it down as a - you know, an area of focus.

PN3365

Can I just go - sorry, it's - in paragraph 52(d) - paragraph 52 on page 13 - you say that there are some roles where piece rates are not appropriate or suitable, I should say?‑‑‑Correct.

PN3366

And then at (d) you say where you are training new staff. Do you see that?‑‑‑Yes.

PN3367

So do you pay - you pay new staff on an hourly basis rather than piece rates for a period of time, do you?‑‑‑Not in all instances, but in some instances, yes.

PN3368

So in some instances they're on piece rates from the start. Yes?‑‑‑Correct.

PN3369

What instances are those, when you do that?‑‑‑what instances are what, sorry?

PN3370

You say in some instances the workers are on piece rates from the first moment they start. In what circumstances is that done?‑‑‑I would say that's the normal circumstance, yes.

PN3371

All right. So even during the training period of their - you don't pay hourly rates, you pay piece rates only?‑‑‑Mainly, yes.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3372

So in other instances you pay hourly rates, do you, for a training period? What are those instances?‑‑‑When they're - well, this is part of continuous improvement programs where they're looking at if this would improve attrition rates. So it's an ongoing development with the sector.

PN3373

I'm asking you about Costa's berry business, since that's the - does Costa's berry business ever pay new workers on hourly rates for a period of training or development?‑‑‑It does.

PN3374

And is that - I got the sense from the answer you gave that that was something of a trial or pilot type of idea. Is that right?‑‑‑Because we're trying to lower the attrition rate for those people leaving early, so we're looking into different methods of developing people.

PN3375

So that is you agree with me, that is that's something that you've started as a trial to see whether it improves that issue. Is that right?‑‑‑Correct.

PN3376

When did you do that?‑‑‑Maybe just this season, really.

PN3377

And so have you done it with all new workers this season, or is it just at some locations ‑ ‑ ‑ ?‑‑‑No, it's just small and controlled.

PN3378

That is you've just done it for a small number of people as a trial?‑‑‑Correct.

PN3379

How many?‑‑‑I don't know the exact numbers.

PN3380

All right. If you go back, then, to paragraph 50 of your statement on the bottom of page 12. You will see there you assert three reasons why you say piece work is used in horticulture. Do you see that?‑‑‑Yes.

PN3381

The first of those, you say it can assist in attracting a sufficient supply of labour. Do you see that?‑‑‑Yes.

PN3382

That is, you say it can attract workers because they can earn above the fixed hourly rates?‑‑‑Correct.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3383

That is, workers who are able to, or at least believe they will be able to earn above the hourly rate on piece rates will be attracted to that work in order to provide them with the opportunity to earn more than the basic hourly rate. Is that right?‑‑‑Correct.

PN3384

Just excuse me for a moment. The second matter that you raise in paragraph 50 is you say that piece work provides flexibility to farmers and horticultural companies; see that?‑‑‑I do.

PN3385

And you say:

PN3386

Through the variabilities of the crop supply throughout the day, week, month, season.

PN3387

Do you see that?‑‑‑I do.

PN3388

I take it what you are referring to there is that labour demands can vary certainly throughout different periods of the year, but even, you know, day to day or week to week, depending on weather conditions and crop development and the like; is that right?‑‑‑Correct.

PN3389

That's the second matter that you're referring to in that paragraph?‑‑‑Yes, yes.

PN3390

We're right in understanding, aren't we, that, firstly, you engage the picking workers as casuals; is that right?‑‑‑Correct.

PN3391

That is, you're not guaranteeing them fixed amounts of work and you can use them to the extent that you need them as casual employees?‑‑‑Not in all instances. If you have a specific kind of work, we do have to guarantee them an average of 30 hours a week, so we do have some contractual obligations for certain cohorts.

PN3392

That is, leaving the Seasonal Worker Program workers to one side, you agree with me that that's the case for the picking workforce generally speaking. The clarification you were providing is that there are particular rules about the Seasonal Worker Program; is that right?‑‑‑Correct, and then there's also minimum engagement hours on our EA for all workers.

PN3393

Yes. That is, if you engage a casual on a particular day, there's a minimum engagement period?‑‑‑Correct.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3394

But no requirement to engage them on any particular day; is that right?‑‑‑That is - that is correct, yes.

PN3395

Just one question about the Seasonal Worker Program: up to now so far as the Berries business is concerned, you've only had Pacific Islander workers through the labour hire companies; correct?‑‑‑Correct.

PN3396

When you're engaging the labour hire company, Costa is not itself entering into the undertakings as part of the Seasonal Worker Program, correct, that's done by the labour hire company?‑‑‑Correct, we only provide the place of work.

PN3397

The third matter then you raise in paragraph 50 is that you say, and it's really the last line on page 12 of your statement:

PN3398

There's a proportion of the workforce who do not perform at a competent level.

PN3399

?‑‑‑Correct.

PN3400

In that, you're referring to, or at least including, the new workers how are, as you say, learning to do the work; is that right?‑‑‑Correct.

PN3401

So, the point you are making there is that if there's a floor of the hourly rate, then those workers, while they are learning or getting up to speed, as you would put it, for whatever period that takes would be entitled to the hourly rate of pay as a minimum; is that right?‑‑‑I'm not stating that, no.

PN3402

Well, the point you're making is that - well, the sentence that's right at the bottom of 12, you say:

PN3403

The reality is that at any given point in time, a substantial proportion of the workforce does not perform -

PN3404

at what you, at least, would regard as a competent level; do you see that?‑‑‑This is now paragraph 12, is it?

PN3405

Sorry, paragraph 50 at the bottom of page 12. The same paragraph I was with before?‑‑‑Yes.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3406

You see the third matter you raise - sorry, I've just passed over some words, but read the whole thing if you need to. You see the word "Thirdly" appears four lines from the bottom at the right-hand side of that paragraph?‑‑‑Yes.

PN3407

And the matter you raise in that paragraph is, just passing over the introductory words, at the bottom line of page 12, still within paragraph 50:

PN3408

The reality is that at any given point in time, a substantial proportion of the workforce (you say) does not perform at a competent level.

PN3409

Do you see that?‑‑‑Yes, I do, yes.

PN3410

You then say:

PN3411

The use of piece work engagement without a minimum floor allows the growers to cope with a substantial cohort of unproductive workers.

PN3412

Do you see that?‑‑‑I do.

PN3413

By paying them an amount proportionate to their productivity, which may be below, and substantially below, the hourly rate; is that right?‑‑‑That's right.

PN3414

So, is the point you're making there that, in your opinion at least, it would be either inappropriate or unfair to require the employer to pay those employees, while they're getting up to speed, at the minimum hourly rate?‑‑‑If they're getting up - sorry, which employees are you talking about, just generically all employees or pickers?

PN3415

You have raised in your statement generally?‑‑‑Yes.

PN3416

And I have been asking you about it, that it make take a period of time for a new worker to get up to speed, as it were?‑‑‑Correct. Oh, you're talking about the new workers now, yes, okay.

PN3417

Well, that's what I was asking you about and that's what you're referring to in this element; correct?‑‑‑I thought I was talking about all workers, yes.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3418

You say out of all of the workers, there's a proportion who you say are not competent; correct?‑‑‑Yes, and that doesn't just include new starters.

PN3419

Firstly, so far as the new starters are concerned, that's a part of the proportion that you say are not competent; is that right?‑‑‑Correct.

PN3420

So far as they are concerned, is the point you're making at the top of page 13 that the introduction of a minimum floor would be either unfair or inappropriate because it would require the employer to pay the worker the minimum rates while they're getting up to speed; is that right?‑‑‑For new starters, yes. So, you're basically - I'm saying if you put a minimum floor in, it would take away the motivational aspect of getting people up to speed. I think it would slow the project down.

PN3421

Well, what you say in the sentence at the top of page 13 is:

PN3422

The use of piece work engagement without a minimum floor allows growers to cope with the substantial cohort of unproductive workers by paying them an amount that is proportionate to their productivity.

PN3423

Do you see that?‑‑‑Correct, and that is the motivational tool.

PN3424

Well, firstly, it allows them to pay them less than the hourly rate; right?‑‑‑There is no hourly rate in the piece rate system. We follow the piece rate system and monitor it, yes.

PN3425

You refer to a minimum hourly amount in that sentence, don't you?‑‑‑I do.

PN3426

You know there's a minimum hourly rate in the award; correct?‑‑‑In the award, yes.

PN3427

Yes, and what you're saying is the absence of a floor means that an employer can apply a piece rates agreement to a new employee in the period they're getting up to speed and pay them an amount which you say is proportionate to their productivity, which may be lower than the hourly rate of pay; correct?‑‑‑Correct.

PN3428

And you think it would be inappropriate for the employer to be required to pay the floor, the minimum hourly rate, during the period the employee is getting up to speed; is that right?‑‑‑I do because there's no guarantee of getting up to speed.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3429

All right. If someone doesn't get up to speed, then they may be inappropriate for this type of work; correct?‑‑‑Correct.

PN3430

Do you know that the level 1 rate under the award is specifically, or included within the work engaged in a level 1 classification is the time engaged in training and induction; do you know that?‑‑‑Sorry, can you say that again, please?

PN3431

Do you know that the level 1 classification under the award includes, as the relevant duties undertaken in that classification, training and induction of new workers?‑‑‑Yes, the training and - yes, yes, I do.

PN3432

You did know that?‑‑‑I've heard that before, yes.

PN3433

As I understand it, what you are actually doing, at least on a trial basis in the Berry business, is introducing hourly rates of pay for new workers for a period of time; is that right?‑‑‑We're having a look to see if there's benefits from it, yes.

PN3434

Have you come to any conclusions as to whether there are benefits from it as yet?‑‑‑No.

PN3435

So it's still in the trial phase?‑‑‑Correct.

PN3436

In the final part of your statement, you express some opinions about the introduction of a floor of minimum rates and particularly you express the view that it may demotivate some employees; is that correct?‑‑‑That's correct, yes.

PN3437

So far as employees do, or expect, or hope to earn above the hourly rate through the use of piece rates, I take it you would expect those workers to continue to wish to and endeavour to earn as much as they can by working piece rates?‑‑‑There's a cohort that's either side of that piece rate that would probably be happy just taking a flat rate rather than pushing themselves to earn slightly more than before.

PN3438

Stick with the question I'm asking you. You understood, and part of your reasons why you have expressed in your statement as to why piece rates are used, is that it attracts employees who want to earn more than the hourly rate of pay, correct?‑‑‑Correct, and we want to attract those people, yes.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3439

And employees who do or expect to earn more than the hourly rate and are attracted to the work because that is their intention will, even if there's a flaw, continue to try and do that, correct?‑‑‑In the majority, yes.

PN3440

The concern you express about demotivation is that underperforming employees might be demotivated. That's your concern?‑‑‑Yes.

PN3441

That is employees who have already - who are proven to be less - I don't want to be unkind - less than competent employees, in your view, less - - -?‑‑‑Or won't bother to develop their proficiency level.

PN3442

Despite having been attracted to the work on your understanding because they wanted to earn a greater amount than the hourly rate?‑‑‑Well, not all people come to work just for that. Some people come for different reasons.

PN3443

All right. But at least in paragraph 50 that was the reason, one of the three reasons why you say piece rates are used in agriculture (audio malfunction)?‑‑‑(No audible reply)

PN3444

All right. You were asked to produce by order of the Commission documents in relation to pay records and hours of work and monitoring of piece rates in Costa's business, correct?‑‑‑I was, yes.

PN3445

You understood that to be a serious matter, that is it was a legal obligation for you to produce those documents?‑‑‑I am aware, yes.

PN3446

So I take it you took every step that was available to you to produce what documents you could?‑‑‑I did, yes.

PN3447

And did you go to someone within Costa and ask them to provide those documents so you could produce them to the Commission?‑‑‑I forwarded the draft to Costa, yes. It came to a Costa info email, it didn't come direct to me.

PN3448

Anyway you received it, correct?‑‑‑I did receive it.

PN3449

And you say you forwarded it to Costa. Who did you send it to?‑‑‑I sent it to our HR general manager.

PN3450

Who's that?‑‑‑Carl. Carl, our general manager, Carl Phillips.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3451

And did you receive a response from Mr Phillips?‑‑‑I did the following week, yes.

PN3452

Firstly, when did you send it to him?‑‑‑I sent it to him the evening - I didn't receive it until the evening of the 2nd I believe, and then I forwarded it that evening.

PN3453

You received a response the following week, did you?‑‑‑I received a response the end of the following week, yes.

PN3454

So around April 9 or something of that nature?‑‑‑Yes.

PN3455

And what was the response that you received from Mr Phillips?‑‑‑I actually received notification that I need a draft order and this was addressed to me and I didn't have possession or custody or control of those documents. So then I sought to get legal representation on the matter.

PN3456

You understood that the purpose of these documents being required to be produced was to assist the Commission in dealing with your evidence and in dealing with the issues that it has to deal with in these proceedings?‑‑‑Yes, I agree it would give weight to my statement, hence why I went to Costa asking, but - yes.

PN3457

And the response that you got from Mr Phillips is that the order was addressed to you and therefore Costa wasn't going to produce those documents or to permit you to produce those documents, is that right?‑‑‑No. I then spoke to Edge Legal and I got legal advice on it that I wasn't in possession, custody or control of those documents so I had no right to supply them.

PN3458

Firstly you sent it to Mr Phillips, correct?‑‑‑Correct.

PN3459

Do I understand the response that you received from Mr Phillips is that Costa wasn't going to produce the documents to you or allow you to produce them to the Commission, is that right?‑‑‑Yes. He said he'd look into the matter and that's - yes, that's where it's at. So I can't speak on behalf of Costa corporate.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3460

In any event the message you got back from Mr Phillips or Costa corporate was that they were not willing to provide the documents that were sought to you so that you could provide them to the Commission to help it in its deliberations in this case, is that right?‑‑‑I believe he said that those documents weren't in my possession, custody or control, so I could not supply them, and that's when I got confused and being new at this spoke to - and got legal representation to draft the letter of response.

PN3461

They are the type of documents that you do - you do have access to these type of documents in the course of your work, is that right?‑‑‑I do not have payroll access at all, I only see like I've shared with you. I'd have some dashboards which are controlled from corporate offices which I see, which I've taken some screenshots to share with you to try and aid my case or my statement.

PN3462

And in any event what you understood you were told by Mr Phillips or Costa corporate was that they were not willing to provide those documents to you so that you could answer the order from the Commission, is that right?‑‑‑They were happy for me to supply the dashboards. The rest they were not able to supply.

PN3463

Or were not willing to supply?‑‑‑Yes. I got - I'm new at this, I spoke to my lawyer and that was how we responded to it. I could only get my hands on what I got my hands on, and they gave me permission to share that.

PN3464

And they didn't give you permission to share anything else, is that right?‑‑‑Correct.

PN3465

You understand, don't you, that there are pay records that Costa maintains about its employees and records of hours of work, these are documents that do exist, correct?‑‑‑Obviously pay records exist.

PN3466

And hours records?‑‑‑Hours records as I shared with you, we record hours.

PN3467

Individual hours records also exist, do they not?‑‑‑They will do, yes. That's part of the payment scheme, yes.

PN3468

All right. The only document that you have produced is a spreadsheet document of five pages, is that right?‑‑‑Correct.

PN3469

This relates to the Berry business only and the first page, am I right, is headed "May 2021 Berry's analysis", is that right?‑‑‑Correct.

PN3470

And that's all the locations, or all the regions I should say?‑‑‑Correct, that's a sum of every - - -

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3471

And then the next page is headed "May 2021 Corindi Analysis", is that right?‑‑‑Correct.

PN3472

And so that's one of the regions, is that right?‑‑‑Correct.

PN3473

So where is that?‑‑‑Corindi's Coffs Harbour area.

PN3474

And then Tasmania, far north Queensland and Gingin?‑‑‑Which is WA.

PN3475

Now, I think everyone is having some difficulty being able to read these documents. I get some progress out of trying to magnify them on the electronic version. I don't know whether that assists anyone else. Can I just take you to the second page, that is just by way of example, the Corindi - where you said Corindi that's how it's pronounced, is it?‑‑‑Corindi, yes.

PN3476

The first graph at the top of the page is total pickers per day, so that's the number of workers, is that right?‑‑‑Correct.

PN3477

So the first day I think is 26 April, there were 242 workers, is that right, that's how we read that?‑‑‑That's how it reads it, yes.

PN3478

And then the second graph is average picking hours including paid breaks and moves, is that right?‑‑‑Correct.

PN3479

So again for the first entry, for 26 April, the average number of hours worked by these 242 workers was 7.26 hours, is that right?‑‑‑Correct.

PN3480

So there's not any information about any individual workers, but that's an average across that number of workers as you understand that record?‑‑‑That's right, these are the records I use to do the analysis. I don't look at them on an individual basis.

PN3481

The third row has an average picking rate. Is that right?‑‑‑Correct.

PN3482

For 26 April it was 4.65?‑‑‑Kilograms, yes.

PN3483

So it's 4.65 kilograms per hour. Is that right?‑‑‑Correct.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3484

So that's the red dotted line - red or orange, one of the two - correct?‑‑‑Correct.

PN3485

And then underneath that there's a green dotted line, or line with dots appearing along it?‑‑‑Yes.

PN3486

That's the piece rate. Is that right?‑‑‑Correct.

PN3487

So for 26 April is was 0.82, 82 cents. Is that right?‑‑‑Yes.

PN3488

Per what?‑‑‑That's piece rates per kilo.

PN3489

82 cents a kilo?‑‑‑Yes.

PN3490

So the average picking rate was 4.65 kilograms per hour. Is that right? Is that the red-orange line above ‑ ‑ ‑ ?‑‑‑Yes, so that's their pick rate per kilo per hour, yes.

PN3491

Per person, is that right?‑‑‑That's grouped together, so that's on that session. So it will be a whole team.

PN3492

Yes, so ‑ ‑ ‑ ?‑‑‑ ‑ ‑ ‑ individuals.

PN3493

Yes, not an individual, but it's the average each individual picker per hour, kilograms per hour. Is that right?‑‑‑Correct.

PN3494

Not any particular individual, I understand, but we're not permitted to have that information, but the average ‑ ‑ ‑ ?‑‑‑May I clarify? It's the average, yes.

PN3495

The average of the 242, at least as you understand that?‑‑‑Yes, correct.

PN3496

And they get 82 cents per kilogram. Is that right?‑‑‑On that piece work chart that's what it says, yes.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3497

All right. I'm not sure I understand that. Does that mean they get $3.80 an hour?‑‑‑Not necessarily, because if you look down the 26 April, the average was twenty - on the chart on the left, this is where you've got - it doesn't help, like you say, on those charts, you've got to look down the period on the left, the blue ones, where it gives you your average on the left. So you look at the date, and you've got the 26th, is an average of 26 - $27.13.

PN3498

How do you get that if they pick 4.65 kilograms per hour, and they're only paid 82 cents a kilogram?‑‑‑Because this chart doesn't collect everything on their piece rate. So there might be - like you say, there might be corrective actions or changes, or they might have some hourly work or whatever, so - but hourly work is not included on here, sorry.

PN3499

What's the - the green line is the piece rate, correct, in the second - well, in both the last two columns ‑ ‑ ‑ ?‑‑‑Correct, yes.

PN3500

So on 26 April it was 0.82. Is that right?‑‑‑Correct.

PN3501

82 cents?‑‑‑Yes.

PN3502

And you understand that to be 82 cents a kilogram, do you?‑‑‑I do, yes.

PN3503

And the pickers picked 4.65 kilograms per hour on average per worker?‑‑‑That's what this is showing, yes.

PN3504

Yes. Well, if you 82 cents times 4.62 is $3.80, something in that range?‑‑‑Yes.

PN3505

$3.81. How do they get to $27?‑‑‑I would have to dig into it, because that's where this might just be - I don't - yes, I can't clarify that. I would have to go onto the computer and look.

PN3506

To reach $27 an hour the piece rate would have to be $6 a kilogram, not 82 cents, so what's - you can't explain this data to us. Is that right?‑‑‑I can't explain that clearly to you without diving into the rest of it, no.

PN3507

What rest can we dive into?‑‑‑Well, you've got to go - like you say, you've got to see individual performance, which I haven't got access to.

PN3508

But you understand the average was 6.5 kilograms?‑‑‑I'm seeing exactly the same facts as you which I sent through, yes.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3509

So you can't - on that document that you've sent through you can't explain how you get an average - what's asserted to be an average hourly wage of $27. Is that right? You don't know how, when we ‑ ‑ ‑ ?‑‑‑No, I would have to understand it better. Sorry, I'm not all over that.

PN3510

All right. If you just stick with the green line, the piece rate line in the bottom two rows. On 26 April it was 82 cents; on the 27th it was 85 cents. Do you see that?‑‑‑Yes.

PN3511

As you go along that green line under ‑ ‑ ‑ ?‑‑‑I do.

PN3512

‑ ‑ ‑ day, 28 April, it was 79 cents?‑‑‑Yes.

PN3513

And the following day on 29 April it was 76 cents. Is that right?‑‑‑Correct.

PN3514

So it changes day to day: it goes up, goes down?‑‑‑Because they're I - yes, correct, they're in different crops every day.

PN3515

So when is the worker told what the rate is going to be that day?‑‑‑The worker is told when they turn up to work in the morning, but they are also told by Facebook and things like that as well.

PN3516

So each day - firstly, when they turn up for work each that day they're told what the rate is going to be that day. Is that right?‑‑‑Correct.

PN3517

Then you refer to Facebook. How is it ‑ ‑ ‑ ?‑‑‑So we communicate - it's a large farm, so we communicate where they start work and what areas of the farm we're aiming to pick for a day; and also when they're engaged initially they're told the minimum rate we will ever pay, which we never go below.

PN3518

So there's a minimum rate they're told at the start. Is that right?‑‑‑Correct. When they do their induction, yes.

PN3519

And then each day they get told what the rate is going to be for that work, either when they turn up or - do you use Messenger or some - send out ‑ ‑ ‑ ?‑‑‑They use a Facebook site usually. But there's a plan for the week, a schedule for the week.

PN3520

When is that put up?‑‑‑Usually over the weekend or at the beginning of the week.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3521

All right. And do you know whether new piece work agreements are entered into each time the rates change?‑‑‑Sorry, couldn't hear you. Sorry, say again.

PN3522

Does the company have piece work agreements?‑‑‑It does.

PN3523

Is a new one entered into every day when you change the rate?‑‑‑They sign an acceptance - their new rates every day, yes, on a chart; and then during COVID they did a show of hands which was recorded.

PN3524

That is when they turn up in the morning they're required - leaving COVID to one side - they sign on the sheet. They sign on the sheet, essentially, which says the rate at the top. Is that right?‑‑‑That they're happy to have the rate change, yes.

PN3525

So when they - and they do that when they turn up, do they? Is that in the morning?‑‑‑Correct.

PN3526

And so far as using labour hire workers, is that a matter that's left to the - how are they told what the rate is going to be?‑‑‑In the interests of the employee we notify their employees of the rate change as well, as we are the place of work.

PN3527

But they're paid by the labour hire company, and that's not something you have a direct involvement in?‑‑‑No. Correct. (indistinct) operate.

PN3528

Yes, I'm correct?‑‑‑Yes.

PN3529

All right. Can I just have a moment? And, sorry, so far as - on that page, if you're still with the (indistinct) one, there's a weekly average picker age. Do you see that?‑‑‑(No audible reply)

PN3530

The green box - vertical box?‑‑‑Yes.

PN3531

So for that whole period there's an amount of 26.36. That's the average ‑ ‑ ‑ ?‑‑‑That's the average over that period, correct.

PN3532

And you know that the hourly rate plus 15 per cent is $28-something?‑‑‑For an average competent picker, yes.

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3533

The last thing was in your second statement from paragraph 18 you made - you've responded to something that - from paragraph 17, I should say, you responded to Mr Carter's statement on page 6?‑‑‑Yes.

PN3534

In paragraph 18, you respond to some material dealt with in Mr Carter's statement from paragraphs 5 to 8; do you see that?‑‑‑Yes.

PN3535

And at subparagraph (a) you indicate that you became aware of the allegations at the time you started in August 2019 and you made enquiries about the HR department particularly and also Mr Owen of Owen Pacific; do you see that?‑‑‑Yes.

PN3536

That's a labour hire company, is it?‑‑‑That is Owen Pacific Workforce, yes.

PN3537

You then, from paragraph (b), set down information that Mr Owen told you; is that right?‑‑‑Correct.

PN3538

That's in (b) and (c) over the page and am I right in understanding your knowledge of those matters is what you were told by Mr Owen?‑‑‑I was not in Costa employment in those times, no.

PN3539

That is you agree with me?‑‑‑Yes.

PN3540

Similarly, at (d), you refer to information that you were told by a Mr Billy Caesar and a Sarah Wilbur from, I think, Costa HR; is that right?‑‑‑That's correct.

PN3541

Again, you can't - you don't have any knowledge of those matters other than what you were told by - sorry, I don't know if it's Ms Caesar or Mr Caesar, I'm not sure?‑‑‑It's Ms Caesar, yes.

PN3542

Ms Caesar and Ms Wilbur; correct?‑‑‑Yes, they're work colleagues I followed up the instance and that's what they told me.

PN3543

Thank you, that's the cross-examination. Sorry, just one moment. Yes, thank you, that's the cross-examination.

PN3544

JUSTICE ROSS: Ms Burke?

*** NICHOLAS DAVID KING XXN MR GIBIAN

PN3545

MS BURKE: Nothing from me, your Honour, thank you.

PN3546

JUSTICE ROSS: Mr Bretherton?

PN3547

MR BRETHERTON: Yes, I have a couple of questions, your Honour.

CROSS-EXAMINATION BY MR BRETHERTON [2.17 PM]

PN3548

Can everyone hear me okay?

PN3549

JUSTICE ROSS: Yes.

PN3550

THE WITNESS: Yes.

PN3551

MR BRETHERTON: Mr King, on page 11, point 46 of your first statement, you stated:

PN3552

In some cases, workers who are receiving unemployment benefits will come and try picking work will decide that they are not able or prepared to perform the work and go back onto unemployment benefits.

PN3553

My question is to what extent do you believe local workers are opting to return to unemployment benefits because the wages they would earn within the horticultural industry is below the minimum award wage?‑‑‑Sorry, I'll just ask you to say the last bit again. I couldn't - I had some interference.

PN3554

I'm sorry. To what extent do you believe local workers are opting to return to unemployment benefits because the wages they earn within the horticultural industry is well below the minimum award wage?‑‑‑So you're asking me what's my view on that, or what's the actual question?

PN3555

The question is how many do you believe are going back to unemployment benefits and how does the wages affect that decision to go back to unemployment benefits?‑‑‑I think the wages are a factor, along with the working times and, you know, the jobs they're expected to do, but it is a factor, yes.

PN3556

My question is are low wages a factor that they go back to unemployment benefits? Would you agree with that?‑‑‑I would agree that's one of the factors, yes.

*** NICHOLAS DAVID KING XXN MR BRETHERTON

PN3557

Okay, cool. Can I ask how you are capturing this data, like can you give me figures of how many people on Jobseeker or unemployment benefits are being employed through Costa Berries?‑‑‑Not with my experience with Costa. I've had previous experience with other farms where we've had to deal with the Centrelink offices with people turning up and then leaving again.

PN3558

Okay. So it's kind of speculating at this point; is that correct?‑‑‑No, it's a factor but I haven't got the exact figures on it, no.

PN3559

All right. My other question regarding that is don't job seekers still receive benefits while they're doing farm work, so aren't they in fact being subsidised by Centrelink to work on farms through some government programs?‑‑‑Some government programs do support Newstarters, correct, yes.

PN3560

So they're not returning to unemployment benefits, in fact, they're still receiving unemployment benefits while they're working?‑‑‑In some cases, there are schemes that do that and I believe we have some of those as well, yes.

PN3561

Are you able to give me a breakdown of the gender of your workers, their visa status, nationality and disability or JobKeeper status?‑‑‑I am not, no.

PN3562

Okay, cool. My next question is regarding averaging, how you do the averaging in your piece rates. How is your averaging calculated and what is the percentage of male to female participants?‑‑‑Can you quantify what you mean by "averaging", you mean - - -

PN3563

When you say the piece rate, you go off your average competent worker; correct?‑‑‑No, we don't, we understand and we have skilled people that know what a task requires and the level of competency to do that task. We don't do it on an average number of people.

PN3564

But to set the piece rate, you need to go off the averaging picked yield; correct? That's how the piece rate is set?‑‑‑No, you set a piece rate by walking the task, understanding what needs to be performed and what can be performed by an average competent picker, for example, for picking and that's how you set the piece rate.

*** NICHOLAS DAVID KING XXN MR BRETHERTON

PN3565

Let me rephrase that. With your average competent picker, what is the ratio of male to female average competent pickers that helps you set your piece rate?‑‑‑I - I wouldn't know, but obviously we would have that, we would be able to probably understand that as it's recorded in male and female as such in our workforce.

PN3566

The same question: with your average competent pickers, would you be able to tell me what the percentage of able to non-able bodied people performing this task is?‑‑‑You're meaning people with disabilities or what? Can you clarify "able" and "non-able"?

PN3567

Disabilities, people with disabilities to people with non-disabilities?‑‑‑I'm not aware of those figures.

PN3568

So you're not capturing that data; is that correct?‑‑‑I couldn't comment on it. I would think we would capture it somewhere, but I haven't seen that.

PN3569

What safeguards do you have in place so people like myself with disability aren't being paid below the minimum wage, or that women are being paid an equal wage to their male counterparts? So, if I was to come to work on your farm on a piece rate, how would you calculate that?‑‑‑Currently, piece rate is calculated for, on one system, an average competent picker, being male or female.

PN3570

Yes?‑‑‑Having a disability would have to be quantified if they could do that task and then that would have to have a separate review, I would think. I don't know, to be honest. I have not been involved in a case, so I'm not sure.

PN3571

So you adjust the piece rate based on disability; is that correct?‑‑‑No, I didn't say that. I said it would have to - I have no experience with that happening, so I would - you know, I couldn't answer.

PN3572

Am I correct in assuming most piece rates are set based on the average competent picker that is able-bodied?‑‑‑I would agree with that. It's a physically demanding job and, yes, most people are able-bodied.

PN3573

The reason I'm asking this question is because the Working Holiday Visa Inquiry is looking to expand to the Jobseeker program, which includes Disability Employment Services and recruitment agencies that the government uses for Jobseeker. What concerns me, though, is as a disabled worker, my piece rate is being determined by an able-bodied rate rather than the rate of my disabled peers, and that creates a significant barrier for me to be able to earn as much as my able-bodied peers.

PN3574

JUSTICE ROSS: Mr Bretherton, you will have an opportunity to make submissions later. This is your opportunity to put questions to the witness.

*** NICHOLAS DAVID KING XXN MR BRETHERTON

PN3575

MR BRETHERTON: Okay. Do you think it's fair that a person with disabilities' piece rate is determined by an able-bodied person's picking rate?‑‑‑I'm not sure I'm the one to answer that question. I haven't had enough experience in that area.

PN3576

In regards to the Workplace Relations Act - I know you said that you're not capturing or you're not aware of the difference between male and female workplace - the Workplace Relations Act specifically covers so that women aren't getting paid less than their male counterparts. If the average competent picker is mostly male, that obviously skews the averaging, so how are you making sure women are getting paid to an equal rate of their male counterparts if the averaging is mostly male, for example?‑‑‑I've never said the average is mainly male. There are females performing within the sector and they are being paid the same rate, so we do not pay a different rate to females.

PN3577

My question is, though, there is obviously some sexual dimorphism in the genders, so in some industries, men can pick a lot more due to their physical attributes, like strength and agility, all that kind of thing. I understand with berries it can be the opposite way. Women prefer it because they can pick faster than men with smaller hands?‑‑‑Correct.

PN3578

But the problem is, if that gender disparity is not being calculated in the piece rate or if it's being skewed to one gender, obviously the other gender's not going to meet the same picking rate as the other. Can you see what I'm getting at? So, how would you overcome that and is that ever calculated in your piece rates?‑‑‑On our (indistinct), there doesn't seem to be any difference between the two, they're both equally skilled and dextrous at the roles, so I can understand it in a more physically demanding role, but on soft fruits, which is light-weight and you're standing up, it's not like physically demanding like other crops where you're picking weight, so we don't see that disparity.

PN3579

Okay. Final question: could you see how introducing a floor rate actually removes a lot of these problems and a lot of these barriers because everyone then is, instead of it being an arbitrary calculation or skewed data, which I'm not sure all farmers are aware of how to do this statistically, don't you agree that removing(sic) a floor rate actually removes a lot of these barriers for women and people with disabilities to be able to earn the same amount as their able-bodied and male counterparts?‑‑‑Sorry, just on that point, I don't see females are any different to the males. They are performing in our sector, like I've said previously.

PN3580

So you're not capturing the differences between the sexes, so you don't know how underpaid the women are compared to the men, or if men are earning more than women; is that correct?‑‑‑I didn't say that. I said I do not capture it. I know it's monitored from, you know, other levels, supervisors and such like.

*** NICHOLAS DAVID KING XXN MR BRETHERTON

PN3581

Okay, thank you, no further questions.

PN3582

JUSTICE ROSS: Thank you, Mr Bretherton. Mr Ternovski, anything in re-examination?

PN3583

MR TERNOVSKI: Yes, your Honour.

RE-EXAMINATION BY MR TERNOVSKI [2.29 PM]

PN3584

Mr King, you were asked some questions about the summary document you produced in response to the notice to produce. Could you turn to that document?‑‑‑The notice to produce document you mean?

PN3585

The document produced in response to the order for production, the summary pay outcomes documents, if I may call it that?‑‑‑Correct, yes.

PN3586

Could you turn to page 2 of that document dealing with Corindi. Do you recall, Mr King, you were asked some questions about the meaning of different values on that document and the units in which they're expressed?‑‑‑Correct.

PN3587

Mr King, can you have a look halfway down the page under the heading "Piece rate with average picking rate", do you see that?‑‑‑I do.

PN3588

There's a subheading "Piece rate with average picking rate"?‑‑‑Correct.

PN3589

And a bit further to the right there is something that looks like - I have to find the right word - anyway the word "yield kilogram" with a blue square?‑‑‑Yes.

PN3590

You see that. And then next to it "Pick rate kilograms per hour (picker only derived kilograms)"?‑‑‑Yes.

PN3591

Do you see that?‑‑‑Yes.

PN3592

Do you have any idea what the words "derived kilograms" mean?‑‑‑I believe that's the picker weight and not the graded weight. So that would be used as a field weight, not as a packed out weight, which is moving to packers.

*** NICHOLAS DAVID KING RXN MR TERNOVSKI

PN3593

What unit of measurement does Costa normally use to set piece rates for picking berries?‑‑‑We either pay - - -

PN3594

What unit of measurement are you paid?‑‑‑Kilo or pallet.

PN3595

And in what circumstances are each one or the other used?‑‑‑In different crops you use different things. So that's why I'm saying this needs - this might be skewed slightly because you've got kilos of blueberries. You get paid punnets which is a 125 gram on raspberries and blackberries, and maybe 250 gram on strawberries. So there's different units changing all the time.

PN3596

So to what unit does the piece rate on this document relate?

PN3597

MR GIBIAN: I object. I think we explored this sufficiently and the witness didn't know the answer to the question, or he said it was kilograms and that he would have to go into other documents to be able to explore it at all.

PN3598

JUSTICE ROSS: It was still raised in cross-examination. Why can't Mr Ternovski ask that question? He can't lead the witness.

PN3599

MR GIBIAN: Yes.

PN3600

JUSTICE ROSS: Mr Ternovski?

PN3601

MR TERNOVSKI: The question - Mr King, do you want me to repeat the question?‑‑‑Please.

PN3602

Yes. I was asking about the unit of measurement for that piece rate values on this document in line of what you just told us about the kilograms, punnets and different kinds of punnet?‑‑‑Yes. I mean ultimately there could be a mixture of kilos and punnets within the figure, and that's why I'm saying we'd have to delve into the figure to work the calculation out clearer.

PN3603

Mr King, you were asked some questions about what effect introduction of an hourly (indistinct) have on employees working on piece rates, and it was put to you that employees could earn above the hourly rate if the flaws introduced will still strive to do that or something to that effect. Do you recall that?‑‑‑I do.

PN3604

And the answer you gave was, "In the majority"?‑‑‑Correct.

*** NICHOLAS DAVID KING RXN MR TERNOVSKI

PN3605

Can you explain what you meant by that?‑‑‑I believe and knowing what I experienced also in the UK where they brought in a make-up for want of a better word on the piece rates up to a minimum level. Anyone that was slightly above the hourly rate or below the hourly rate that cohort accepts the hourly rate, they don't push themselves to strive to go further.

PN3606

Mr King, you were asked about your involvement in Costa's application to become an approved employer under the season worker program, and you said that you were not directly involved in that application. Do you recall that?‑‑‑I do.

PN3607

What involvement, if any, have you had with the application?‑‑‑I'm just involved in meetings on the side, I don't - I'm not directly involved with the DESI(?) applications or approved employers.

PN3608

You were asked about different recruitment methods that Costa uses to attract workers, and at one point you said that Costa is forever trying to find new ways to recruit?‑‑‑Correct.

PN3609

Which cohort of workers were you referring to when you said that?‑‑‑Well, all in a way. So - yes, all. Just with technology developments we're always looking at new ways.

PN3610

Now, you were asked some questions about paragraph 24 of your statement, and it was put to you that you're speculating why people who did not seek employment with Costa did not do so. Do you recall that?‑‑‑I do.

PN3611

What is the basis for the opinion in your paragraph 24?‑‑‑A lot of our sites are very, very remote, they're not easy access sites, so they're not very attractive for a lot of pickers.

PN3612

I think we're at cross purposes, Mr King. What I was asking is how is it that you know the matters that you opine on in paragraph 24, what is the source of your information?‑‑‑It's just - I mean it's the experience I've had is the main source of, you know, trial and error, we know - we know what's happened in the past both in Costa and other farms.

PN3613

Your Honour, if I could just have a moment. No further questions, your Honour.

*** NICHOLAS DAVID KING RXN MR TERNOVSKI

PN3614

JUSTICE ROSS: Nothing further for the witness. Thank you for your evidence, Mr King, you're excused?‑‑‑Thank you.

<THE WITNESS WITHDREW [2.36 PM]

PN3615

JUSTICE ROSS: Mr Gibian, did you want to tender the material provided in response to the notice to produce?

PN3616

MR GIBIAN: Yes, thank you.

EXHIBIT #AWU28 MATERIAL PROVIDED IN RESPONSE TO THE NOTICE TO PRODUCE

PN3617

JUSTICE ROSS: And you understand what I said earlier about Mr Carter. You're going to give some thought to that. You will advise Mr Ternovski by 12 noon on Monday, or his instructors, and file a supplementary statement if that's the course you - if you intend to recall him, addressing the matters to which Mr King goes to in his second statement about Mr Carter's evidence. You file that by 4 pm Monday and then we will deal with any oral evidence after we deal with Mr Houston on Tuesday.

PN3618

MR GIBIAN: May it please.

PN3619

JUSTICE ROSS: All right. We have also published a short statement just clarifying the directions in relation to Mr Houston so that everybody has that. Are there any other matters before we adjourn until 9.30 Tuesday?

PN3620

MR DALTON: Your Honour, there is just one minor matter - - -

PN3621

JUSTICE ROSS: Yes, Mr Dalton.

PN3622

MR DALTON: - - - and it's the tender of the cross-examination bundle for Ms Underhill. I understand my instructors sent an email to your chambers with the PDF of that material which removed the press release that was the subject of the objection, and that email itemises the documents that are in that tender bundle.

PN3623

JUSTICE ROSS: Thank you, and I think we have already provisionally marked that AFPA1.

PN3624

MR DALTON: That bundle was Dr Howe I think.

*** NICHOLAS DAVID KING RXN MR TERNOVSKI

PN3625

JUSTICE ROSS: Is that Dr Howe? I see. Thank you, Mr Dalton. We will mark that AFAP4.

EXHIBIT #AFAP4 CROSS-EXAMINATION BUNDLE FOR MS UNDERHILL

PN3626

MR DALTON: If the Commission pleases.

PN3627

JUSTICE ROSS: Thank you. Nothing further? All right, thank you. We will adjourn until 9.30 on Tuesday morning.

ADJOURNED UNTIL TUESDAY, 20 JULY 2021 [2.39 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GAETANO GUY GAETA, AFFIRMED........................................................... PN2489

EXAMINATION-IN-CHIEF BY MR DONAGHEY....................................... PN2489

EXHIBIT #NFF7 STATEMENT OF GAETANO GAETA............................ PN2501

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN2502

THE WITNESS WITHDREW........................................................................... PN2601

EXHIBIT #AWU24 DOCUMENTS PRODUCED BY GAETANO GAETA PN2616

HAN SHIONG SIAH, AFFIRMED................................................................... PN2619

EXAMINATION-IN-CHIEF BY MR DONAGHEY....................................... PN2619

EXHIBIT #NFF8 STATEMENT OF HAN SIAH............................................ PN2630

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN2644

THE WITNESS WITHDREW........................................................................... PN2722

EXHIBIT #AWU25 BUNDLE OF DOCUMENTS.......................................... PN2727

JONATHAN RICHARD MOSS, AFFIRMED................................................. PN2730

EXAMINATION-IN-CHIEF BY MR DONAGHEY....................................... PN2730

EXHIBIT #NFF9 WITNESS STATEMENT OF JONATHAN MOSS.......... PN2740

CROSS-EXAMINATION BY MS BURKE...................................................... PN2742

THE WITNESS WITHDREW........................................................................... PN2775

EXHIBIT #NFF10 STATEMENT OF LELEIGA FATUI.............................. PN2778

EXHIBIT #NFF11 STATEMENT OF REGINALD BROWN........................ PN2781

MATTHEW CHARLES BENHAM, AFFIRMED........................................... PN2787

EXAMINATION-IN-CHIEF BY MR DONAGHEY....................................... PN2787

EXHIBIT #NFF12 STATEMENT OF MATTHEW BENHAM AS AMENDED PN2812

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN2812

THE WITNESS WITHDREW........................................................................... PN2929

EXHIBIT #AWU26 PART OF THE NOTICE TO PRODUCE BUNDLE OF MR BENHAM............................................................................................................................... PN2933

MICHELLE DISTILL, AFFIRMED................................................................. PN2936

EXAMINATION-IN-CHIEF BY MR DONAGHEY....................................... PN2936

EXHIBIT #NFF13 STATEMENT OF MICHELLE DISTILL AS AMENDED PN2954

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN2956

THE WITNESS WITHDREW........................................................................... PN3039

RICHARD GURNEY ECKERSLEY, AFFIRMED......................................... PN3042

EXAMINATION-IN-CHIEF BY MR DONAGHEY....................................... PN3042

EXHIBIT #NFF14 WITNESS STATEMENT OF RICHARD ECKERSLEY DATED 09/06/2021............................................................................................................................... PN3051

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN3053

THE WITNESS WITHDREW........................................................................... PN3134

EXHIBIT #AWU27 DOCUMENTS PRODUCED BY RICHARD ECKERSLEY PN3138

NICHOLAS DAVID KING, AFFIRMED......................................................... PN3154

EXAMINATION-IN-CHIEF BY MR TERNOVSKI....................................... PN3154

EXHIBIT #AFPA2 WITNESS STATEMENT OF NICHOLAS DAVID KING DATED 11/06/2021............................................................................................................................... PN3166

EXHIBIT #AFPA3 SUPPLEMENTARY WITNESS STATEMENT OF NICHOLAS KING............................................................................................................................... PN3208

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN3210

CROSS-EXAMINATION BY MR BRETHERTON........................................ PN3547

RE-EXAMINATION BY MR TERNOVSKI.................................................... PN3583

THE WITNESS WITHDREW........................................................................... PN3614

EXHIBIT #AWU28 MATERIAL PROVIDED IN RESPONSE TO THE NOTICE TO PRODUCE............................................................................................................................... PN3616

EXHIBIT #AFAP4 CROSS-EXAMINATION BUNDLE FOR MS UNDERHILL PN3625