PN3628

JUSTICE ROSS: Good morning. If I can deal with some preliminary matters. We received a document, the document that had been requested from Dr Underhill, titled "Distribution of Average Hourly Earnings, Horticulture Workers". I'm assuming that everyone's received that. I propose to mark that as exhibit AWU29.

PN3629

MS BURKE: I'm sorry to do this, but can I just check that everyone can hear me and would someone mind saying something so I can check if I can hear you?

PN3630

JUSTICE ROSS: Who are you?

PN3631

MS BURKE: I'm getting lots of smiles and no sound.

PN3632

MR GIBIAN: That is Ms Burke.

PN3633

JUSTICE ROSS: Is that Ms Burke?

PN3634

MS BURKE: I can see you're speaking, Mr Gibian. I cannot hear you. I really hate - okay, I can now hear everyone, thank you.

PN3635

JUSTICE ROSS: Can you hear us now, Ms Burke?

PN3636

MS BURKE: Yes, I can, thank you, your Honour. I'm sorry, I didn't realise you were online.

PN3637

JUSTICE ROSS: That's all right.

PN3638

MS BURKE: Thank you, everyone.

PN3639

JUSTICE ROSS: No, no, that's fine.

PN3640

MS BURKE: I'll mute now.

PN3641

JUSTICE ROSS: I was just indicating that we had received a document responsive to a request the Bench had made of Dr Underhill during her evidence. It's headed "Distribution of Average Hourly Earnings, Horticultural Workers" and I was just indicating that I was proposing to mark that as exhibit AWU29.

EXHIBIT #AWU29 DOCUMENT FROM DR UNDERHILL TITLED "DISTRIBUTION OF AVERAGE HOURLY EARNINGS, HORTICULTURAL WORKERS"

PN3642

Whilst we're on the witnesses, I think my associate also distributed to you an index setting out the list of exhibits with indexes to the transcript and the court book. In due course, you can indicate whether there are any corrections to that. If there's any other assistance we can provide to the parties, please let my chambers know.

PN3643

There's a further preliminary matter - I'm not sure whether you want to deal with this before or after Mr Houston's evidence - Mr Dalton, that's the statement of Elizabeth Sarah Tan.

PN3644

MR DALTON: Yes, your Honour. Can you hear me?

PN3645

JUSTICE ROSS: I can.

PN3646

MR DALTON: Yes. Your Honour, the statement of Ms Tan is a compilation of the public statements in relation to the agricultural visa on the researches that she's conducted and that addresses, or seeks to address, the matter that we discussed last week arising from some questioning in cross-examination of Dr Howe and our proposal to tender the press release of the Minister for Agriculture. So, we seek to tender that statement.

PN3647

JUSTICE ROSS: What do you say is the relevance of the evidence to a fact in issue we have to decide?

PN3648

MR DALTON: It forms part of the factual landscape in terms of the current and foreseeable labour market and that includes the known fact that the number of WHMs has dropped sharply since the advent of the pandemic and the picture is unclear as to whether and when WHMs will return and, if they do, what visa arrangements will be in place. So, it just completes the factual picture in terms of the visa options that are in prospect. Your Honour, we will not be submitting that the Commission should presume that the agricultural visa will be implemented or implemented within a particular time, or that it will have any particular - or that its protections in terms of labour regulation will mirror the protections that are in the Seasonal Workers Program, but it is evidence of the public statement of intention of the government to address what is clear as a shortfall in the labour market in horticulture now and over the next year or so.

PN3649

JUSTICE ROSS: Before I go to those who have expressed the view they are opposed to the tender, it seems to me that the material goes well beyond talking about the proposed agriculture visa and the free trade agreement with the UK. I've read through the material. There are pages and pages that are not relevant to that at all.

PN3650

MR DALTON: Yes.

PN3651

JUSTICE ROSS: And if we were to admit it, it would need to be recast to focus on those issues.

PN3652

MR DALTON: Yes, your Honour.

PN3653

JUSTICE ROSS: There are pages about the (indistinct) policy approach. None of that's relevant to anything before us and it's not advanced on that basis. There are extracts from the various media interviews that, whilst no doubt of interest, aren't relevant to us. So, we would want to, whatever happens, narrow the compass of the material that's attached.

PN3654

MR DALTON: Yes.

PN3655

JUSTICE ROSS: So our attention is directed to those matters which relate to the agriculture visa announcement and what's said about the free trade agreement.

PN3656

MR DALTON: Yes, your Honour.

PN3657

JUSTICE ROSS: All right.

PN3658

MR DALTON: We will endeavour to do that today.

PN3659

JUSTICE ROSS: Okay, thank you. Ms Burke?

PN3660

MS BURKE: Well, your Honour, I object really to the tender of any evidence on this topic at all. Mr Dalton described it as part of the factual landscape or the factual picture of visa options, but there's nothing factual in any of this. It's a series of announcements by politicians to the media and some comments recorded on Hansard on this topic, and it doesn't prove anything factual whatsoever, other than Mr Littleproud and some other politicians have made some statements in public. I think we can all take notice of the fact that statements made in media releases are not evidence of something that will happen or may happen and, of course, Mr Dalton, quite properly, stated that the AFPA would not be making submissions at all about that this proposed visa would be implemented or when or what it would look like.

PN3661

I suggest that if the AFPA want to make any submissions on this topic at all, that is that there may be a change in the available visas in the future, they can do that on the basis of the exchange between Mr Dalton and Dr Howe in cross-examination on Tuesday. There was a discussion between them on that topic and the transcript records that discussion and that is a sufficient basis on which the submissions that the AFPA wants to make can be made. Rather than burden the Commission and burden my client and possibly also the AWU with needing to go and review 135 pages in detail of media statements and comments to the ABC and so on and then look ourselves to check that that's a complete (audio malfunction), the more efficient and the, frankly, more sound approach is for the AFPA to make submissions based on the exchange on this topic between Mr Dalton and Dr Howe and for the Commission and the parties not to be burdened by these sorts of statements at all.

PN3662

JUSTICE ROSS: All right, thanks, Ms Burke. Mr Gibian, anything you want to add?

PN3663

MR GIBIAN: Can I raise three matters. First, we concur with Ms Burke's submissions that the material on the subject identified by Mr Dalton would not be relevant, particularly in the absence of there being any intention to submit that the proposed visa either will occur or will have particular conditions attached to it or that it will occur in any particular period of time.

PN3664

Secondly, as your Honour observed, there is a good deal of material that doesn't seem to even go to that topic. I would add to that that although we haven't had an opportunity to look at it, the issue - there is an obvious issue with the admission of parliamentary materials, which is included in this material, which we would have to give some consideration to, or the Commission would need to give some consideration to.

PN3665

Thirdly, if there is to be material admitted on this subject, we would obviously, and have not had the opportunity at the moment, need to check whether there is any other material that we would need to supplement it.

PN3666

JUSTICE ROSS: All right. Mr Dalton?

PN3667

MR DALTON: Your Honour, can I say that we would be content to adopt Ms Burke's position of this particular issue in respect of the evidence given in cross-examination by Dr Howe, subject to this - so Dr Howe gave evidence about what she understood to be the public statements around the press release. We would propose that we limit the material in Ms Tan's statement to the public statements on that particular issue, and pointing to the specific parts of that affidavit that we say cover those matters, and that way the Commission has the record of the public statements rather than just the answer without notice of a witness to a question about the agricultural visa in which she said, well there's been public statements that aren't consistent with the press release.

PN3668

JUSTICE ROSS: Ms Burke?

PN3669

MS BURKE: Well, the press release wasn't put to Dr Howe, and if Mr Dalton wanted those public statements that Dr Howe referred to in the answer to her question, yes, without notice, he could have called for them. This issue really is - I wouldn't even call it a storm in a teacup, it's a cloud in a teacup, and the Commission really should not be troubled by it any further.

PN3670

JUSTICE ROSS: Mr Gibian, in relation to the extracts from - I have read the material for the purpose of trying to understand the relevance proposition - the extracts from the senate committee where I think someone from the Department has asked about the proposed changes, and his answer in short compass is, well there's really no detail that he's aware of and the architecture of it is in the process of development. What's the constraint with - leave aside your general argument along the lines that Ms Burke has advanced - what's the specific point in respect of that material?

PN3671

MR GIBIAN: Your Honour, I don't raise a specific point. I haven't had an opportunity to look at it. I have just been involved in other proceedings where there has been extended debate about the use of parliamentary materials. I don't want to say anything or make any submission off the cuff on that issue. I only raised it because there is often an issue in relation to the use of such materials and it can be subject of extended debate. In short my understanding is that there are limits on the capacity to use such materials in a manner which impeaches the testament given to parliament or parliamentary committee or statements made in parliament.

PN3672

JUSTICE ROSS: I don't think anyone is using it for that purpose.

PN3673

MR GIBIAN: That may be right, your Honour, yes.

PN3674

JUSTICE ROSS: All right. Bear with us for a moment, the Bench will just - if you all remain on the line we will join on another link and discuss the matter and come back to you.

SHORT ADJOURNMENT [9.44 AM]

RESUMED [9.47 AM]

PN3675

JUSTICE ROSS: All right. We propose to deal with this matter in this way. We will admit, subject to two points that I will make shortly, we will admit the statement, albeit it will need to be amended. In our view the relevant test is whether the evidence is relevant. We think it is relevant insofar as it could rationally affect the assessment of the probability of a fact in issue. The probative value, which is really the point Ms Burke was going to, is quite a separate matter, and that can be the subject of submissions, and we understand what is said about that and what is said about what weight, if any, we should attach to media statements and interviews and the like.

PN3676

The two conditions; the first is that the statement, the material attached will need to be edited so that it only deals with the issue of the agriculture visa and the UK free trade agreement and not any other extraneous matters, and secondly leave will be given to the UWU and AWU in the event that their searches uncover further public announcements that bear on those issues that have not been discovered by the search undertaken by Ms Tan.

PN3677

Once you have filed the redacted material, Mr Dalton, I would ask that before you file it you provide it to Ms Burke and Mr Gibian so that at least there's an agreement that the redactions are appropriate. Then we will mark it, and I will give you an exhibit number now, bear with me. It will become exhibit AFPA5.

PN3678

MR DALTON: If the Commission pleases.

PN3679

JUSTICE ROSS: We will now call Mr Houston. Are there any other preliminary matters? No? All right, thank you, we will call Mr Houston.

PN3680

THE ASSOCIATE: Mr Houston, can you hear me?

PN3681

MR HOUSTON: Yes, I can.

PN3682

THE ASSOCIATE: Thank you. Please state your full name and address.

PN3683

MR HOUSTON: Gregory John Houston.

<GREGORY JOHN HOUSTON, AFFIRMED [9.50 AM]

EXAMINATION-IN-CHIEF BY MR DALTON [9.50 AM]

PN3684

JUSTICE ROSS: Mr Dalton?

*** GREGORY JOHN HOUSTON XN MR DALTON

PN3685

MR DALTON: Thank you, your Honour.

PN3686

Mr Houston, can you hear me?‑‑‑Yes, I can, Mr Dalton.

PN3687

Thank you. Could you state for the record your full name and work address?‑‑‑Yes, Gregory John Houston and work address is Level 40, 161 Castlereagh Street, Sydney 2000.

PN3688

You have prepared an expert report in this proceeding dated 11 June 2021?‑‑‑That's correct.

PN3689

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

PN3690

You've got that in hard copy form?‑‑‑Yes.

PN3691

Are the contents of that report, including the opinions you express in it, true and correct to the best of your knowledge?‑‑‑Yes.

PN3692

I tender that report.

PN3693

JUSTICE ROSS: I will mark Mr Houston's expert report of 11 June 2021 as exhibit AFPA6.

EXHIBIT #AFPA6 EXPERT REPORT OF GREGORY JOHN HOUSTON DATED 11/06/2021

PN3694

MR DALTON: For the record, that starts at page 3118 of the court book.

PN3695

Mr Houston, you prepared a second report responding to reply reports of Dr Underhill and Dr Howe. That second report of yours is dated 16 July 2021?‑‑‑Yes, that's right.

PN3696

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

PN3697

Again, is that a hard copy you have on your desk?‑‑‑Yes.

*** GREGORY JOHN HOUSTON XN MR DALTON

PN3698

Are the contents of that second report, including the opinions you express in it, true and correct to the best of your knowledge?‑‑‑Yes.

PN3699

That's not in the court book, your Honour, but I tender that.

PN3700

JUSTICE ROSS: Thank you. I will mark Mr Houston's expert report in reply dated 16 July as exhibit AFPA7.

EXHIBIT #AFPA7 EXPERT REPORT IN REPLY OF GREGORY JOHN HOUSTON DATED 16/07/2021

PN3701

MR DALTON: There's no questions in chief.

PN3702

JUSTICE ROSS: Thank you. Is there an agreement between the AWU and UWU as to who is to go first? Mr Gibian, looks like it's you?

PN3703

MR GIBIAN: I assume so as well. Thank you.

CROSS-EXAMINATION BY MR GIBIAN [9.53 AM]

PN3704

Mr Houston, can you see and hear me adequately?‑‑‑Yes, I can.

PN3705

First of all, just before I commence, I think you said you had access to or in front of you the two reports that you have prepared; that's correct?‑‑‑That's correct, yes.

PN3706

Do you have access otherwise to the other material that is in the court book?‑‑‑Yes, I do, I've got a file loaded up on my screen here to my left.

PN3707

All right, thanks. Can I then just start by asking you some questions about your qualifications and experience. You set some information out in that respect at paragraph 10 and 11 of your first report. It's page 3123 of the court book. I don't think I have internal page numbers in your report, so we'll have to deal with the paragraph numbers, but you can find paragraphs 10 and 11, I take it?‑‑‑Yes, I can. I have them.

PN3708

You describe yourself there as a consulting economist, I think, and in your CV, which is also attached, as a competition economist. That's as you would describe yourself?‑‑‑Yes.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3709

I think, as you make clear in those paragraphs, the primary area of your expertise and experience is in competition analysis and economic analysis of markets?‑‑‑Yes, I would emphasise that the latter is the broader and more accurate single description.

PN3710

Sorry, economic analysis of markets?‑‑‑Yes.

PN3711

In paragraph 11, you describe or you set out industry sector experience and list a series of industry descriptors; do you see that?‑‑‑Yes.

PN3712

I take it that you've undertaken some market or competition analysis with respect to those sectors that you've identified there; is that the way we understand that?‑‑‑That's correct.

PN3713

The only one that I think has any agricultural involvement is in the second line there's a reference to "grains"; do you see that?‑‑‑Yes.

PN3714

I looked through the list in your CV, and maybe I missed it, but I couldn't find what that work was. What's the work that you've done with respect to the grains industry?‑‑‑Well, my CV, the detail in my CV extends only back for the last 10 years, Mr Gibian, so I think prior to that period, I undertook a couple of significant pieces of work involving - well, several actually - they involved, first of all, an analysis of the grain export industry, particularly involving then what was AWB, a grain expert entity, and I've also undertaken work in relation to four specific entities in relation to the logistics process by which grain proceeds from the farms on which it's grown through to the four export facilities and various economic issues arising in that context, involving rail, silos, trucking, port facilities and so on.

PN3715

All right. So, I hadn't missed it, it's not listed in your CV because that work was in excess of 10 years ago. I'm not being critical in that respect, just to clarify?‑‑‑That's correct.

PN3716

So far as the nature of that work, it was, was it, market analysis in relation to AWB and the logistics considerations that you just mentioned?‑‑‑Yes, and it was across three or so - at least three separate engagements with different parts of the industry.

PN3717

All right. I take it then you've not otherwise been involved in horticulture or done work in that field?‑‑‑Not in my professional capacity, no, not until the present matter.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3718

Yes, all right. Over the page in paragraph 12, you refer to your activity as an applied economist involving the gathering, analysis and interpretation of empirical evidence; do you see that?‑‑‑Yes.

PN3719

Again by reference to your CV, I couldn't identify that there were occasions on which you'd actually undertaken primary empirical research of a survey or focus group type; is that right?‑‑‑Again, not in the last 10 years, but prior to that, I've certainly undertaken work involving surveys, and that is, I should say, surveys involving the questioning of humans as opposed to surveys or the gathering of data by other means.

PN3720

What's the survey work that you've done more than 10 years ago?‑‑‑A couple of instances, one in relation to a very detailed study of consumers of - household consumers of water services in the ACT, and I've also worked with survey evidence in relation to intellectual property and the valuation of intellectual property for copyright purposes, and also worked with survey evidence and analysis thereof in relation to the valuation of other forms of intellectual property.

PN3721

So consumer surveys in relation to water and valuation of intellectual property?‑‑‑That's a good summary.

PN3722

JUSTICE ROSS: I'm sorry to interrupt, Mr Gibian.

PN3723

Can I just clarify, in the last point in relation to the valuation of intellectual property, you said you'd worked with survey evidence. Does that mean you had conducted a survey?‑‑‑No, your Honour, it was not a survey that I directly conducted, but I was engaged with the process of analysing the critiquing survey work that had been undertaken by a third party, and the question of what would be derived by way of conclusions from that survey evidence.

PN3724

All right. Thank you.

PN3725

MR GIBIAN: So the instances you mentioned were survey work in relation to consumers of water in the ACT and valuation of intellectual property. Firstly, I think you have confirmed that so far as the valuation of intellectual property rights is concerned you were not involved in or responsible for the actual design and implementation of the survey process?‑‑‑That's correct, my task in that instance was to assist the information (indistinct) on that survey work that was undertaken by another party.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3726

And the only other instance you mentioned was water consumers in the ACT where you were the person responsible for the design and implementation of that survey process?‑‑‑I wouldn't say that I had sole responsibility, but I had a significant involvement in the process from start to finish. So everything from - - -

PN3727

I'm sorry, go on?‑‑‑(Audio malfunction).

PN3728

JUSTICE ROSS: Just bear with us for a moment, Mr Houston, we're just having a bit of trouble picking you up. Can you hear us, Mr Houston?‑‑‑I can hear perfectly.

PN3729

Would you mind leaving the Teams meeting and then re-joining and we will see if we can get a better connection. I'm not sure if Mr Houston has heard me, Mr Dalton. I don't know if you've got - your instructors have any way - he's leaving, so we will see when he comes back. We may need to connect him by phone if this is a persistent problem.

PN3730

MR DALTON: Yes.

PN3731

MR GIBIAN: Mr Houston, can you hear me again?‑‑‑Yes, I can, Mr Gibian. Can you hear me well?

PN3732

I can now, yes. You just froze and then we couldn't make out your words, but you have logged out and re-joined as I understand it, is that right?‑‑‑That's correct.

PN3733

All right. I will let you know if the problem recurs, or someone else will I'm sure. Sorry, I think you were just answering a question which I had asked you in relation to your involvement in the other instance of survey type activity in relation to consumers of water in the ACT, and my understanding was in answer to that question you said you were not solely responsible, but had involvement in from start to finish the survey process. Was that the complete answer you wish to give to that question?‑‑‑Yes.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3734

All right. In that respect did your involvement involve selecting the sample and preparing the survey questions, or was that done by others?‑‑‑I would give the same answer again, Mr Gibian. I was the leader of the - and responsible for the entire project, but that project also involved working with people who took special or particular responsibility for the design of the survey, and the choices that needed to be made about sample sizes, and all aspects of the project. It was a large team of people that I was responsible for in terms of delivering what the commission of that work was seeking to achieve.

PN3735

Sorry, who were you working for at the time you were involved in this process?‑‑‑NERA Economic Consulting.

PN3736

And it was commissioned, was it, by the water authority in the ACT?‑‑‑Yes, that's correct.

PN3737

And you said others were involved, was that all within that company or were there other people involved in the project?‑‑‑So largely people within that company, but also the actual task for example of running the focus groups and the actual on the ground undertaking of the survey work was done by parties contracted from outside that firm.

PN3738

And I think the answer you gave was that there were other people who were more specifically involved in both sample selection and survey design and focus group implementation; that's correct?‑‑‑Yes.

PN3739

Who had more specific skills and experience in that area than you did and do?‑‑‑They spend a much greater part of their professional time in that area, yes.

PN3740

In the sense that as I understand other than this instance that's not something you have been involved in, in your profession, correct?‑‑‑As I mentioned before I have been involved on a number of occasions in interpreting and assessing what can be drawn from survey work, including my reference to how those surveys are assigned and undertaken, but my - I'm not a specialist in the design and implementation of surveys, it's not something I do with a great deal of frequency.

PN3741

It's not something you have ever done, correct?‑‑‑I wouldn't agree with that, no. I just explained that I have a leadership role in the process of a very detailed study undertaken over an approximately two year period in the ACT where I was the responsible person.

PN3742

So that was the one instance and as you've explained in that study there were other individuals who had more specialised expertise who were responsible, albeit subject to your overview perhaps for the sample selection survey design and implementation, correct?‑‑‑Well, I'd explained that I was responsible for the entire, (indistinct) entire piece of research, and I had - there was a team of people, but I was the responsible person.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3743

Yes. And the team of people included people with more specialised experience and knowledge in survey design and implementation who were primarily involved in that function, albeit as I said subject to what you've described as your overall responsibility, correct?‑‑‑They were performing those roles and I was responsible for ensuring that that work was done to required professional standards.

PN3744

And the two year period that this was conducted when was that two year period?‑‑‑I can't recall precisely, but I would - I would estimate that that was between 2000 and 2005.

PN3745

In the early 2000s period?‑‑‑Yes.

PN3746

All right. And I take it from those answers that you've never been involved in any survey focus group or empirical research into employees employment conditions, experience or pay of any group of workers?‑‑‑No.

PN3747

Can I just have a moment. Or social science research more generally?‑‑‑I regard economics as a social science, so I would think the answer to that (indistinct) disagree, if that's your question.

PN3748

We will leave aside the allocation of economics in social sciences. Can you then go to your CV, which is annexed to your first report, it starts at page 3202 of the court book. Sorry, I don't have internal pages in your material. It's annexure B to the report?‑‑‑Do you have a court book reference?

PN3749

Yes, 3202, if that's an easier way for you to find it?‑‑‑I don't know whether it is or not. I have that page now.

PN3750

That's the start of the CV that you've provided; correct?‑‑‑Yes.

PN3751

I think, to be fair to you, in the second paragraph, the second-last line of that paragraph is where I obtained the - you're describing yourself as a competition economist. Then if you go over the page to the following page, 3203, you've started listing your project experience, which I think you've said, as you've described, in the last 10 years only; correct?‑‑‑That's correct.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3752

You have broken it down by subject matter, so the first subject matter you've dealt with is competition access and mergers. That seems to be the major area of work; is that a fair reflection of the CV?‑‑‑I wouldn't put it that way. I mean if we went back to page 3202, then what you will find there is, putting aside the introductory and last two paragraphs, three paragraphs that reflect my activities in, first of all, competition economics, second, regulatory economics and, thirdly, securities matters, or financial economics, perhaps best described. I wouldn't want to emphasise any one of those perhaps more than the others. I would describe that as they are three, perhaps, distinct areas where I have found myself predominantly spending my time over the last decade or so.

PN3753

All right. So, without prioritising the three areas, competition, like market mergers and the like, securities and regulatory are the matters you put under the - sorry, you described regulatory in a particular way. What were those words that you used?‑‑‑Regulatory economics is a good description.

PN3754

So they're the three major areas that you would emphasise and you were disagreeing with me in the sense that I was asking you to prioritise between them?‑‑‑Yes. I mean the other - the fourth area which I call out, and I think this is also fair, is the sort of broader category of just policy questions.

PN3755

All right. If you just go forward to - it's page 3214 in the court book. This is still under project work, as I understand it. There's a heading "Economic Impact Analysis"; do you see that?‑‑‑Yes.

PN3756

This page seems to be the only area of the work set out in your CV that had any obvious relationship with industrial relations or employment matters in a direct sense; is that fair?‑‑‑Yes.

PN3757

The work that you've done in that area in the last 10 years is set out on this page, I think. The following page, page 3215, goes on to another subject, namely valuation and contract analysis; do you see that?‑‑‑Yes.

PN3758

So far as the work's that on page 3214 is concerned, it, I think with one exception, involved you preparing reports as to the economic effect of industrial action, primarily I think by MUA members in relation to ports or stevedoring; is that right?‑‑‑I can't recall the precise unions, but there's ports, as well as air traffic control.

PN3759

There was one instance of air traffic control, otherwise it was stevedoring or tow boat operators; correct?‑‑‑That's correct.

PN3760

All of those were of the same type in a general sense, that is, you were giving some kind of assessment as to the impact, economic impact, of industrial action of one type or another?‑‑‑Yes.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3761

The only exception seems to be the third entry, which was work for the Crown Solicitor's Office in which you provided an expert report in relation to salary proceedings involving police officers and paramedics?‑‑‑That's correct.

PN3762

The nature of that report was it was an opinion as to the macro economic impacts of, in short, infrastructure, expenditure and wage rises for public sector employees in those relevant groups?‑‑‑Yes, the relevant impact, correct.

PN3763

All right. Can I then take you to the letter of instruction that you received, which was the first - annexure A to your report. I think it's at page 3158 of the court book?‑‑‑Yes.

PN3764

You'll see there that you - there's some correspondence addressed to yourself from Seyfarth Shaw; do you see that?‑‑‑Yes.

PN3765

The second paragraph indicates or explain to you that they wish to engage you to act as an expert in relation to an application made by the AWU to vary the horticultural award; see that?‑‑‑Mr Gibian, would you just please clarify for me which - there are two letters of instruction and I just wanted to make sure I'm on the same page.

PN3766

If you have access to the court book, it's page 3158?‑‑‑Thank you.

PN3767

It's the letter of 14 May?‑‑‑You gave me the CB number.

PN3768

Yes, please stop me if I go too fast?‑‑‑I'm on that page now.

PN3769

You see that's a letter of 14 May this year addressed to yourself?‑‑‑Yes.

PN3770

In which Seyfarth Shaw explained to you that they were acting for the Australian Fresh Produce Alliance?‑‑‑Yes.

PN3771

And that they wished to engage you as - in the second paragraph, they wished to engage you as an expert in relation to the application by the AWU to vary the horticulture award?‑‑‑Yes.

PN3772

And a description was provided of the variation in the second sentence of that paragraph as involving deleting the existing clause 15.2(i) and inserting a new 15.2(k) to provide for a record of hours by piece workers; do you see that?‑‑‑Yes.

PN3773

You were made aware that the AFPA was opposing the variation; correct?‑‑‑Yes.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3774

There's then a heading "Engagement to Prepare Expert Report"?‑‑‑Yes.

PN3775

And the next paragraph indicates, "As discussed with you" and a description is provided of what they requested you to do in phase 1; do you see that?‑‑‑Yes.

PN3776

So, you had had some discussion prior to this letter, I assume, with the lawyers?‑‑‑Yes.

PN3777

All right. Phase 1 was described as preparing a report which you review and critique the expert report produced by the AWU from Dr Elsa Underwood - Underhill, sorry?‑‑‑Yes.

PN3778

If you go over the page, page 3159, there's a heading - well, the first heading on that page about a quarter of the way down the page there's point 2, Other Aspects of Retainer. Do you see that?‑‑‑Yes.

PN3779

In which it's indicated:

PN3780

In due course as part of phase 2 we'd like you to provide further evidence regarding the economic impact of the AWU proposal.

PN3781

Do you see that?‑‑‑Yes.

PN3782

Did you ever do any work on that part of the retainer?‑‑‑No.

PN3783

If you could then go to back to phase 1, that's described, sorry at the bottom part of the preceding page, page 3158? You see that?‑‑‑Yes.

PN3784

And you see at 1.3 towards the bottom of that page you were asked to provide a critique of the methodology adopted in the expert report of Dr Underhill and provide opinion as to whether it suffers from any flaws, issues or inconsistencies. Do you see that?‑‑‑Yes.

PN3785

And the other - over the page or (a) asks you to consider whether the data presented was statistically sound including if there's a valid sample size focus group was fairly chosen, and that (b) to identify if issues are identified explain the issues and their impact. Do you see that?‑‑‑Yes.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3786

Then at 1.4 towards the top of page 3159 you were asked whether the conclusions and inferences made in the expert report are sound. Do you see that?‑‑‑Yes.

PN3787

So, you knew that what you were being asked - well, you knew you were being asked to prepare a report for the AFPA, who were opposing this application?‑‑‑Yes.

PN3788

And you were being asked to - and they wished to have you critique the methodology used by Dr Underhill; correct?‑‑‑Yes, they - that word is used, yes.

PN3789

And to identify flaws, issues and inconsistencies?‑‑‑Yes.

PN3790

Because you understood that the AFPA wished to undermine, if they could, the weight to be attached to Dr Underhill's reports?‑‑‑I wouldn't agree with that, no. I understood that they had reservations about the validity of some of the conclusions that were drawn, and they were seeking my opinion.

PN3791

But you understood that the AWU had filed the or had called evidence from Dr Underhill and proposed to rely upon it in support of its application; correct?‑‑‑I assumed that to be the case, yes.

PN3792

And you knew the AFPA was opposing that application?‑‑‑Yes.

PN3793

And wished you to critique Dr Underhill's reports for the purposes of reducing the weight that ought be attached to Dr Underhill's reports; correct?‑‑‑I'm not making any assumption about the purpose. It was made very clear to me in my instructions that I was to approach it as an independent expert to bring my own opinion, and I understood that I should focus particularly on the matters identified at 1.3(a) and (b), which is the statistical or soundness of the quantitative survey reports in particular.

PN3794

Yes. You understood you were being asked by a party opposing the application to critique the expert reports being relied upon by the AWU in support of its application; correct?‑‑‑That's my instruction since - yes.

PN3795

And you weren't instructed and did not actually conduct any empirical research yourself?‑‑‑No.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3796

You were not instructed to and did not conduct any other research into what other studies/research exists in relation to horticultural workers in Australia or elsewhere?‑‑‑The extent of the material that I considered is all set out in my report, and it was material that was all provided to me. I didn't undertake any efforts to go beyond that, and nor did I regard that as necessary to fulfil the questions that had been - I had been asked to address.

PN3797

Yes, that is, you agree with me. You didn't conduct any review or research to ascertain what other studies or research exists in relation to horticultural workers generally or piece workers in particular in Australia?‑‑‑No, I reviewed the material that was put before me. I didn't undertake any primary analysis beyond that material.

PN3798

Well, you didn't do any primary research, nor did you conduct any sort of literature survey or other research or studies that exist into horticultural workers in Australia generally or piece workers in particular?‑‑‑No, I wasn't asked to do that.

PN3799

I'm not being critical, I'm just trying to make clear what you did and didn't do. You agree with me?‑‑‑Well, I think what I've done is clear. It's in fulfilling the request made of me in relation to this letter of the agent which was to review the reports and provide my opinion of those particular issues being - and the focus of that would review.

PN3800

And you agree with me that you do not have experience or expertise in relation to the horticultural industry or the nature of employment arrangements in the horticultural industry or the nature of pay and working conditions in the horticultural industry?‑‑‑Well, my expertise is in relation to the proper and balanced application of statistical methods in an applied economics context. So, on some of the things that form part of your question I would regard as falling within my expertise, but not others.

PN3801

That is, you agree with me that you do not have expertise and have not had experience or involvement in researching or ascertaining or analysing the pay or conditions or working arrangements of workers in the horticultural industry in Australia?‑‑‑Well, I have expertise in applied economic analysis and testing what conclusions can properly be drawn from information gathered in all kinds of industries and that is the expertise that I've brought here. Now, some of that expertise, as I've just described, intersects, to my mind, and overlaps with the scope of the question that you're asking, and perhaps some of it does not.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3802

In the whole of your professional life you have never been involved in, until this occasion, whatever professional expertise you have in applied economics, you have not applied that, other than on this occasion in reviewing Dr Underhill's report and Dr Howe's report, applied that expertise in relation to any matter involving - I'm sorry, you just froze for a moment. You can still hear me, can you?‑‑‑I can still hear you. Can you hear me?

PN3803

I'll start that - I can, yes. I'll start that again. You agree in the whole of your professional career you've not on any occasion applied your applied economics expertise in analysing any matter involving the horticultural industry or workers' employment conditions or employment arrangements in the horticultural industry?‑‑‑Correct.

PN3804

And you've not undertaken any study or have any expertise in relation to what the working conditions and working arrangements, pay and conditions are of workers in the horticultural industry?‑‑‑I'm troubled by your inclusion of pay in that question.

PN3805

Well, you've never been involved in any study or analysis of pay of workers in the horticultural industry other than on this one occasion; correct?‑‑‑No, I haven't applied my economic expertise to pay in the horticulture sector previously.

PN3806

Yes. Other than looking at these two reports?‑‑‑Correct.

PN3807

I am right in also understanding, aren't I, that - is it right to say that's not something you pointed out in your report at any point?‑‑‑I'm not especially in the habit of writing, listing in a report all the things that I haven't done.

PN3808

So you don't think it's a proper role of you as an expert to identify areas, limitations that might exist on your expertise to comment on particular issues?‑‑‑I don't think there's any limitations to my expertise as I have applied it to give the opinions that I've given here. So I didn't see any need to qualify those opinions any more than what you see in my report.

PN3809

All right. I am right, aren't I, in also understanding that - can you point to any other expert opinion that you've given that you've listed in your CV which had involved you undertaking a methodological critique of primary empirical research into the pay and conditions of any group of employees, in any industry?‑‑‑No. No, I can't.

PN3810

So this is the first time you've ever done or undertaken the type of exercise that you were asked to in the letter of instructions of 14 May?‑‑‑No.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3811

You have never before undertaken a methodological critique of any primary empirical research into the employment conditions or pay of any particular group of workers, correct?‑‑‑That's correct, but I've undertaken many analyses and evaluations of primary research into all kinds of sectors of the economy and the markets.

PN3812

All right. But never this kind of exercise in relation to employee conditions or pay, correct?‑‑‑Correct.

PN3813

You mentioned the expert, obligations of experts, if you just go to - you also were provided with the expert code - if you just go to page 1369 of the court book?‑‑‑1369 did you say?

PN3814

I did, yes. Sorry, 3169; I'm sorry, 3169. I interposed the numbers, apologies?‑‑‑Yes.

PN3815

I take it you're familiar with the Federal Court code?‑‑‑Yes.

PN3816

And it notes at point 2 the general duties, the paramount duty to - well, the court in this instance, correct?‑‑‑Yes.

PN3817

And then the content of the report is dealt with at point 3 on that page. You were conscious of those matters when preparing your report?‑‑‑Yes.

PN3818

They include an obligation to specify for example (f) if applicable a particular question, issue or matter that falls outside the expert's field of expertise?‑‑‑Yes.

PN3819

At (i) at the bottom of that page that you've made all enquiries that you believe necessary, desirable or appropriate?‑‑‑Yes.

PN3820

And over the page at (j) in qualifications, without which the report would be incomplete or inaccurate, is that right?‑‑‑Yes.

PN3821

And you were conscious of those matters in preparing your report, were you?‑‑‑I was.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3822

Can I go back to your report then. So far as Dr Underhill is concerned, if you go to paragraph 32 of the report - sorry, I will find the page number - it's page 3128 in the court book. There's a heading in the middle part of that page "Critique of survey and methodology", can you see that?‑‑‑Yes.

PN3823

I take it that was an intent to summarise the two issues, the two principal issues in which you sought to raise with Dr Underhill's report?‑‑‑Yes.

PN3824

They being whether the sampling methodology resulted in a representative sample or not?‑‑‑That's not an accurate description of what (a) says.

PN3825

Well, your assertion is that the sampling methodology did not result in a representative sample, correct?‑‑‑It's important to add the second part of that (indistinct), which is undermining its ability to generalise findings to horticultural workers and Australia.

PN3826

I'm sorry?‑‑‑I'm sorry. That's - I have nothing to add.

PN3827

All right. That is you weren't criticising the study as such, you were raising a question as to the ability to generalise the findings?‑‑‑There's two things; there's the study that was undertaken by Dr Underhill and others, or studies, and they were undertaken some years ago, and then there is the material in Dr Underhill's report which is the dependency in our offers having regard to those studies, and it's the - if there's a criticism it's the latter, that is the principal criticism I'm making in my report.

PN3828

That is you're not criticising the studies themselves or how they were conducted, it's a question as to what opinions or the generalisation one could draw from them in your view based upon your review of the papers produced by those studies, correct?‑‑‑I'm not criticising the studies and the opinions drawn in those studies.

PN3829

I understand?‑‑‑My criticism is the opinions drawn by Dr Underhill in her subsequent report filed in these proceedings which seek to draw conclusions having regard to those studies that are much broader than the conclusions in the studies themselves. That is the essence of my criticism.

PN3830

So the only criticism you make is the extent to which based on those studies alone Dr Underhill was able to give the generalised opinions that you've identified in the expert report filed in these proceedings, correct?‑‑‑My task was to review Dr Underhill's report and the conclusions (indistinct) be statistical or contemplated conclusions that she drew in that report, and of course that report draws on prior studies. My focus of my attention was on the statements and opinions given in Dr Underhill's report.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3831

Yes. The criticism you are raising is whether or not the opinions given in the expert report are capable of being given based upon the two empirical studies that are referred to in the expert report, correct?‑‑‑It's a closing question about what my opinions are, and you use the word "only". My opinions are as set out in both of my reports.

PN3832

Yes?‑‑‑I wouldn't want to - I wouldn't want to just agree to a question that seeks to summarise and confine them in a way that I hear your question is perhaps doing.

PN3833

That is you're not willing to answer that question, you just refer us to the full text of both reports, is that right?‑‑‑It can be quite a danger in seeking to summarise in one sentence an entire report (indistinct) that sentence has "only" in it.

PN3834

In any event the two - I think you've agreed with me the two principal methodological issues that you raise are those at (a) and (b) of paragraph 32, namely, where they've given the non-representative nature of the sample, that undermines the ability to make generalised findings and, secondly, that the research, you say in (b), suffers from self-response bias; correct?‑‑‑That's correct.

PN3835

Can I ask you about those two things in turn. Firstly, so far as the sampling methodology is concerned, you suggest that the appropriate method of examining the earnings of piece workers generally in horticulture is that there should be a stratified sampling frame used?‑‑‑That's an appropriate method in any survey, including - well, that's an appropriate method in any survey.

PN3836

In paragraph 41 of your statement on the following page, 3129, you say:

PN3837

Given the diverse nature of horticulture across Australia, including by location and by crop, in any opinion, it is likely to be both desirable and appropriate to design a stratified sampling frame.

PN3838

?‑‑‑Yes.

PN3839

Firstly, as to the first part of that sentence, you make an assertion about the diverse nature of horticulture across Australia, including by location and crop; you can see that?‑‑‑Yes.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3840

Your knowledge of those matters was confined and obtained only from the documents you obtained and looked at for the purposes of this proceeding?‑‑‑Yes, I think that's clear from the documents that I've reviewed.

PN3841

But you don't purport to have any general expertise in relation to the nature of the horticulture industry, its distribution by location or crop?‑‑‑I'm making that observation by reference to the material that's available to me, as indicated by all the material reviewed and forming that opinion and preparing my report.

PN3842

Yes, but you don't have any other knowledge other than what you read in Dr Underhill and Dr Howe's reports and the associated documents of the nature of the horticulture industry in Australia by location or crop?‑‑‑No, I don't think it's necessary to have any other knowledge. The wealth of material is pretty clear on this point, in my opinion.

PN3843

The answer to my question is that your knowledge of that and whether it's clear or not is derived from reading Dr Underhill and Dr Howe's reports; correct?‑‑‑And all of the ancillary materials to which they refer.

PN3844

In any event, the stratified sampling frame that you say was appropriate would involve, firstly, examining the whole of the population to be subject of the analysis and identifying the features of the whole of the population by location, crop and type?‑‑‑And other dimensions as well, yes.

PN3845

By breaking down the whole range of considerations, geographic location, work type, age, gender, crop, nature of employer, visa type, all of those matters; correct?‑‑‑That's right. I mean without limiting the considerations, those considerations that you've just gone through, I think are drawn from the combination of my reports - are all relevant considerations. To perhaps put it another way, if one has the task of seeking to draw statistical or draw inferences as to the properties of a population, the first question is to carefully specify what is your population - in this case it's horticultural workers in Australia - and then to start the process of understanding what is the extent of diversity and any other properties that population has with it.

PN3846

Yes, and there may be, as you say, other features of the population which are necessary to identify and quantify in order to undertake that type of analysis, but you're not purporting to be exhaustive because you don't know the features of that population; correct?‑‑‑Well, I - no, I'm not exhaustive because I haven't undertaken the task of turning my mind and undertaking the research task that would be required to form an opinion about the range of characteristics that would need to be taken into account in a stratification process, but I have listed a range of things that, from the material I have read, seem to me to be important.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3847

And you don't otherwise purport to have expertise or knowledge of what considerations either exist or would be important in a stratified sampling analysis?‑‑‑Well, I haven't given an exhaustive list because I haven't undertaken that research task and, in fact, it seems that no one has, as far as I can tell, for the purpose of answering the earnings-related questions that Dr Underhill addresses and makes conclusions on in her report.

PN3848

That is, you agree with me, you don't have any independent expertise or knowledge in relation to those matters?‑‑‑No, I don't agree, I don't agree with that. I've agreed that I haven't undertaken the task of turning my mind to the full set of considerations that would arise in designing a stratified sampling frame.

PN3849

And you have never undertaken research of that type and have no independent knowledge as to the nature and characteristics of the workforce which would enable you to form a view on that question; correct?‑‑‑No, that's not correct because the material that is before me is pretty clear that the population of interest, being horticultural workers in Australia, is a broader - is broader in its envelope, if you like, and broader in terms of its characteristics than has been the focus of the prior research work undertaken by Dr Underhill.

PN3850

All right, I'll come back to that, but you don't independently know the characteristics of the industry or the proportions of the workforce that have various characteristics, correct, and you've never undertaken any research or analysis in relation to those questions; correct?‑‑‑I don't agree with that. I mean you're mixing up two things, you're mixing up the question of what might I have known before I came to this task and - - -

PN3851

All you know about is what you read in Dr Underhill's report and Dr Howe's reports and the associated documents; correct?‑‑‑That is correct, that is the material that I turned my mind to and that is the material that's informed these observations at this part of my report.

PN3852

To undertake the type of stratified analysis that you say is desirable and appropriate, you would need to ascertain what the total population was of the horticultural workforce; correct?‑‑‑That's a very imprecise question. What do you mean by "total population"? What it was?

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3853

What the workforce is at a particular point in time, how many people are working in the workforce; correct?‑‑‑I wouldn't put that as the first priority. The whole - at all. I don't that's, in fact, even necessary. What's important in undertaking a stratified sampling frame is to understand a reasonably fulsome set of relevant characteristics of the population, and that's different from the number. So, a relevant characteristic might be, for example, whether a worker is a working holiday WHM, working holidaymaker or whether a worker is a locally resident worker. That could be a simple distinguishing characteristic, and a stratified sampling frame would want to address the question of are there local workers in this industry and to have an appreciation of the - broad appreciation of where they arise and when they arise, and to ensure that the sampling frame was stratified so as to capture a sufficient number of those local workers in order to ensure that they were adequately represented in the sample.

PN3854

Just give me a moment. Sorry, can you still hear, Mr Houston?‑‑‑Yes, I can.

PN3855

Well, thank you for that answer. That is, what you're saying is you would need to identify relevant characteristics of the workforce, for example the crop type that they are working with, geographical regions, age, visa type, et cetera, and to have data as to the relative proportions of the workforce that fall into those particular categories; correct?‑‑‑We would at least want - I mean, part of the problem is, yes, we don't have precise data on those things, but we need to establish that their particular characteristics are sufficiently present to know that we should ensure we have - some of those characteristic are captured in our sampling frame.

PN3856

So if you ‑ ‑ ‑?‑‑‑So, for example, we know that local worker estimates vary but at a minimum probably they are at - they seem to be in the nature of a third and they may be much larger, so, if we don't have local workers captured in our sampling frame as opposed to working holidaymakers or migrant workers, then immediately we will not have a representative sample, if we know they are a significant portion. And we may not know an exact proportion, but we know they are important, and there's enough information here to show that they are important by quantum.

PN3857

Well, what you're saying is there should be a stratified sampling frame published; correct? For example, if you wished to ensure that you were covering crop type you would need to identify the proportion of ‑ ‑ ‑

PN3858

JUSTICE ROSS: Mr Gibian, look, I mean, you've asked this question a number of different times. How long are we going to be spending on this topic?

PN3859

MR GIBIAN: Not terribly long, your Honour. I'm just trying to ascertain what the witness says ought to have been done. I'm not going to be terribly long on this topic.

PN3860

JUSTICE ROSS: All right.

PN3861

MR GIBIAN: I'll go as quickly as I can, your Honour.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3862

That is, if I can just provide one example then, Mr Houston, if you're wanting to develop a stratified sample, upon crop type, you would have to identify the proportions of the workforce that were involved in citrus or berries or mushrooms for example, and then develop a sample that matched the proportions of the overall workforce that were involved in those different crop types. That's what you're suggesting ought to be done for a study of this type, isn't it?‑‑‑I think it's important to understand that the precise proportions of crop type, that may not be that - it may not be critically important unless there was evidence to show that the nature of the working arrangements varied by crop type. So, yes, it would be helpful to understand their own different crop types, and to make sure you captured some workers from every crop type, but there's - but I think - I don't want you to have the impression that you cannot undertake some stratification unless you know precisely some data which we obviously don't know precisely. So ‑ ‑ ‑

PN3863

That is, you're not suggesting that you do need to have precise proportions of your sample for the overall population broken down by these different characteristics; correct?‑‑‑No, but you have to engage to some extent to know that there is a meaningful - you need to know that all of the diversity of crops of worker status are sufficiently captured in your sample. Now, when I say sufficiently, it's important not to hear from me that sufficient equals "must have precise year of apples or strawberries". That's not necessary, because the sampling process will help to - will overcome the fact that you don't know that precisely. But it is important to capture the full range of diversity of geographies of crop types and of worker status in its media of images in order to ensure that you have a representative sample of the entire horticultural sector.

PN3864

And as you indicated, whether it is significant to sample based upon some feature of the workforce such as the crop type that they are working with will depend upon an assessment as to whether there is likely to be some relevant difference in, as you say, the working conditions or pay in the different crop types; correct?‑‑‑Well, I put it this way, I mean, we don't sort of put the cart before the horse here, what one has to do before undertaking any survey work is first of all focus on the population that you're trying to draw inferences about, and, secondly, undertake some primary qualitative research to understand the full range of characteristics of this population. So, I'll give you a really simple example, let's say you wanted to understand an aspect of the population that was only held by males, and not by females, then you would turn your mind to the fact, well, how do I make sure, or maybe you wanted to prove that it was only held by males and not by females, then you'd want to make sure that your sample of the population had roughly the same number of males in it as females, so that when you sampled them and drew that out, you would be able to say there was a difference. But if you're interested in something that you think is only a property held by males and you only sample males then you're not going to prove anything.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3865

And to know that you would have to know the proportion of males and females at least in some rough terms to ‑ ‑ ‑?‑‑‑You don't need to know exactly.

PN3866

Yes. And the way in which you might go about ascertaining what are relevant considerations in terms constructing your sample is you might, for example, conduct a focus group process of qualitative research obtaining detailed information from participants in the industry to identify what are significant or not significant differences; correct?‑‑‑You almost certainly undertake a number of focus groups, because the focus group process is ‑ ‑ ‑

PN3867

That's the type of ‑ ‑ ‑?‑‑‑That's one of its purposes to understand the extent of diversity and the relevance of that diversity.

PN3868

Yes. And that's the type of process that you would undertake in advance of constructing your survey samples in order to endeavour to identify those features which are significant and ought be covered; correct?‑‑‑It's the type of process you undertake in order to design a stratified sampling frame and then to inform the survey that you would follow up by reference to that stratified sampling frame.

PN3869

Yes, all right. Now, could I just ask you about an aspect of your second report in that respect? Do you have that available to you?‑‑‑Yes.

PN3870

Just two matters, you provide an example in paragraph 33 of how you say the workforce could be segmented. Do you see that? By growing area, produce type and employee characteristics, do you see that?‑‑‑Yes.

PN3871

And then paragraph 34 you provide an example that if 30 per cent of horticultural work was in Australia then it would be appropriate to have 30 per cent of your sample respondents in New South Wales, is that right?‑‑‑Yes. I mean if it was 29 or 31 or even 25 or 35 you may not have a problem, but if it's 3 per cent then you do have a problem. I've used 30 in both parts (indistinct), but I don't - I don't want to leave the impression with you that the percentage allocation of the sample has to be exactly the same as the (indistinct) allocation of population in the state. Just like the male question, we don't know whether there's 49 and a half or 50.5 per cent of males, but we have a broad appreciation that the population is half/half.

PN3872

So if you're constructing a survey you would as you say undertake a focus group process to try and identify significant differentiating features of the population, and you would endeavour to cover so far as geographic area and work type, prop type, the major areas of employment within Australia?‑‑‑Yes. It would be a combination of focus groups, as usual, and primary research as to the geographic dispersion, researches to the worker characteristics and so on.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3873

To ensure you're obtaining respondents from the major geographical areas in which the work is undertaken in Australia?‑‑‑Yes, but geography is not the only - I don't want to - - -

PN3874

No, I'm just using the example that you - you're not suggesting that you have to match 30 per cent exactly, but you would want to ensure that you covered the major areas and had respondents from the major areas in which the work is undertaken, correct?‑‑‑Yes, and the major employee personal characteristics.

PN3875

If you then go back in your second report to - I'm sorry, just give me a moment - on page 5 of that report, the second report I should say if you're still in that?‑‑‑Yes.

PN3876

You will see in paragraph 18 you make an assertion as to whether Dr Underhill's earlier research is representative of the entire population of horticultural workers, do you see that?‑‑‑Yes.

PN3877

In paragraph 19 you refer to or assert an over representation of working holidaymakers, do you see that in the first part of paragraph 19?‑‑‑Yes.

PN3878

And then at paragraph 20 you say that:

PN3879

The layered vulnerability that Dr Underhill describes in her research suggests that the extrapolation she makes from this research to the population as a whole will cause her to underestimate average earnings of employees.

PN3880

Do you see that?‑‑‑Yes.

PN3881

That would only be the case if the earnings of working holidaymakers were lower than other groups within the workforce, correct?‑‑‑No.

PN3882

Firstly, you say that the focus on working holidaymakers, you express an opinion, would cause her to underestimate the average earnings of employees engaged as piece workers. Do you see that in the first sentence of paragraph 20?‑‑‑Yes.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3883

If working holidaymakers earned more than other workers in the industry engaged as piece workers then you would overestimate the workings of the whole workforce, correct?‑‑‑Not necessarily. There's two different considerations at play here, and the other consideration that you're overlooking is that set out in paragraph 21. So there's the consideration of working holidaymakers workers versus - - -

PN3884

Can I leave the self-response bias aside?‑‑‑Well, I'm providing an answer to your question, and your question was if working holidaymakers earn more than, let's call them other workers, then the observation that I've made here wouldn't follow, and my answer is, no, that's not correct and for part of the explanation in that answer I turn your attention to paragraph 21.

PN3885

Which deals with self-response bias?‑‑‑Yes.

PN3886

All right. You identified two separate methodological concerns which you identified at paragraph 32 of your first report, the representative nature of the sample or the non-representative nature of the sample and self-response bias, correct, and you've addressed them separately in your first report, correct?‑‑‑Yes.

PN3887

I am trying to ask you about what you say is the non-representative nature of the sample used in the reports, correct, do you understand that?‑‑‑Yes.

PN3888

What I understood you to be saying in the first sentence of paragraph 20 of your second report is that the focus on working holidaymakers was in your opinion or would in your opinion cause Dr Underhill to underestimate the average earnings of employees engaged as piece workers?‑‑‑Yes.

PN3889

As a consequence of what you describe as the non-representative nature of the sample?‑‑‑Yes.

PN3890

That would only be the case, that is the report would only underestimate the earnings of piece workers more generally in horticulture if working holidaymakers earned less than other workers in the horticulture industry, correct?‑‑‑No, that's not correct.

PN3891

Is that solely because of the self-response bias issue?‑‑‑Well, just - - -

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3892

That is if they earnt more, if working holidaymakers earnt more than other workers then wouldn't a concentration on that population overestimate the average earnings?‑‑‑Well, there is - I've tried to explain - there are two forces at play or two considerations that together and separately cause as I've described it the material to be not representative of the population as a whole. The first of those is it's only focusing on workers with a particular visa or status, or workers that shall we say are not local workers, and we don't know about the relationship between local workers and working holidaymaker workers, and the second is that even within the sub-group of working holidaymakers there is, as acknowledged by Dr Underhill, a likely self-selection bias, and that self-selection bias is likely to be depressed, the connotative material that's gathered in relation to the earnings of those workers. So there's two forces at play. Both those forces lead to the sample not being representative of the population as a whole.

PN3893

Sorry, if we can just have a moment. The assertion you make in the first sentence of paragraph 20 is not that you don't know the extent to which the research into working holidaymakers would represent the whole of the population, but that it would underestimate, correct?‑‑‑Yes, that's - - -

PN3894

That's your opinion?‑‑‑That is (indistinct) description of my opinion. I mean the very name that is given to the research which is "Layered vulnerability" suggests that that is an emphasis and a focus on the research. Now, I'll just put to you the hypothetical that there are working holidaymakers that are not vulnerable.

PN3895

I'll put it more directly, Mr Houston. You have assumed that working holidaymakers would earn less than the rest of the population; is that right?‑‑‑No.

PN3896

You don't know whether they do or do not; correct?‑‑‑It's not - no, I don't know, but it's not necessary to know that to make this conclusion which I'm putting in that sentence.

PN3897

You have no knowledge of whether or not working holidaymakers earn more or less than the other components of the horticulture workforce; correct?‑‑‑No, I don't.

PN3898

That is you agree with me, you don't have any knowledge of that matter?‑‑‑It's not necessary to have that knowledge to make the statement.

PN3899

All right. You then make some observations, if I can go back to your first report, as to - sorry, just one more question on that issue. You do know that there is reference to there being a significant number of undocumented workers in horticulture?‑‑‑Yes.

PN3900

You don't know whether undocumented workers are likely to earn more or less than working holidaymakers?‑‑‑I don't know. One might make the assumption that that could be an important attribute for the outcomes in terms of earnings and that would be quite a reasonable assumption, it seems to me, and so that then tells you about an attribute that you need to consider in stratifying a sample frame.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3901

Can I go back to your first statement, your first report, I should say. You make some observations about the use of statistical measures, non-probability sampling?‑‑‑Yes.

PN3902

And you make the assertion on paragraph 48 on page 3130 of the court book that any statistical tests performed on the data is inappropriate and unreliable; is that right?‑‑‑Yes, for the purpose of drawing an inference about the population of horticultural workers in Australia.

PN3903

All right. If go to the top of that page - well, paragraph 44 starts at the page before and you've set out two notes from a paper published by the SAGE publications?‑‑‑Yes.

PN3904

The two quotes are at the top of page 3130; do you see that?‑‑‑Yes.

PN3905

It's a paper by - I'm not sure how you say the name - Bayavar and others?‑‑‑Yes.

PN3906

Probability Sampling. See that?‑‑‑Yes.

PN3907

The two quotes that you've set out are that:

PN3908

With non-probability samples, by definition, the inclusion of probabilities are unknown or zero, so without further assumptions, this very fact formally prevents any statistical inference calculations.

PN3909

Do you see that?‑‑‑Yes.

PN3910

And the other quote is that:

PN3911

In a non-probability setting, the statistical inference based on probability sampling principles formally cannot be applied.

PN3912

Do you see that?‑‑‑Yes.

PN3913

But that:

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3914

Practitioners routinely use corresponding estimates, which should be rather labelled as indications or even approximations.

PN3915

Do you see that?‑‑‑Yes.

PN3916

All right. Is that a paper you are familiar with?‑‑‑Yes.

PN3917

That is, you were familiar with it before you prepared this report or did you become familiar with it in the process of this report?‑‑‑I mean I've often (indistinct) resort to statistical authorities in just this kind of context, so, yes, we have a number of them at our disposal.

PN3918

What was the answer to my question?‑‑‑Yes.

PN3919

That is, had you read this paper before you did so - well, firstly, I take it you read this paper for the purposes of the preparation of this report; is that right?‑‑‑Yes.

PN3920

Had you read the paper previously before preparing this report?‑‑‑I can't recall.

PN3921

That is, you can't recall whether you'd read it before, but you, or someone in your company, got it out for the purpose of this report, did they?‑‑‑Yes.

PN3922

Did someone else provide it to you?‑‑‑Yes.

PN3923

That is, you didn't find it for the purposes of this report?‑‑‑No, I didn't personally, no.

PN3924

All right. And these quotes, were they extracted by someone else and not yourself?‑‑‑Yes.

PN3925

Did you review the paper as a whole?‑‑‑Yes.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3926

Was what you tried to obtain, or was the purpose of those two quotes that are in paragraph 44 to convey that the paper was suggesting that it was inappropriate to use statistical measures in the context of a non-probability sample?‑‑‑Yes. I mean the difficulty - just to be clear, the difficulty is here that we've got a sample that's focused on one subgroup of the population, we're applying a statistical test to that and then saying the results of that statistical test can be applied to the entire population when it's not representative, the sample is not representative of the entire population.

PN3927

All right. What you're saying, as you say, what you were endeavouring to convey or indicate is conveyed by the paper is that it is inappropriate to use statistical measures from non-probability samples - in this context of a non-probability sample; correct?‑‑‑That's not - that's putting it more narrowly than I would put it. If you've undertaken a sampling process, let's just say, that's focused on working holidaymakers and you undertake a statistical test using the data you gain from that sample, and you could undertake either of the two statistical tests that have been put forward here, then it may well be reasonable to use that information to draw conclusions about the earnings of working holidaymakers in horticulture, but it's not reasonable or appropriate to use that same test from that same sample to draw conclusions about horticultural workers in Australia as a whole because that's a different population, it's a much broader population.

PN3928

The reason why you say that is you assume that there may be difference so far as earnings are concerned on the part of other parts of the population compared to working holidaymakers?‑‑‑I don't - I don't have to make an assumption. All I need to know is that that may be a relevant consideration as to earnings. I don't need to know that for sure.

PN3929

No. That is, you're assuming it may be a relevant consideration so far as earnings is concerned; correct?‑‑‑I'm saying it's a reasonable - it's a reasonable possibility.

PN3930

That is, you don't know whether it is or is not, you're saying it's a possibility that earnings might be different in other parts - in other parts of the workforce outside working holidaymakers; correct? You can't put it higher than that; correct?‑‑‑If it could affect earnings, then you need to make sure that your sample includes a sufficient number of those, call it non-WHM workers, in order to be sure that you haven't overlooked something that is important.

PN3931

You are not suggesting that you know one way or the other, you're just saying it is a possibility; correct?‑‑‑I'm suggesting you don't need - it's not necessary to know, it's just - I'm saying it's necessary to find out by including them in your sample.

PN3932

Yes. That is, you agree with me that you don't know one way or the other; correct?‑‑‑No, I don't know, I'm just saying - but I'm saying it's - if you want to generalise, you need to make sure - you need to find out.

PN3933

Can I just take you to that SAGE paper. It's at page 427 of the court book?‑‑‑427?

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3934

Yes. Perhaps if you start at the preceding page there's concluding remarks on page 426. Do you see that?‑‑‑Yes, I have 426 in - - -

PN3935

You will see there's a heading "Concluding remarks"?‑‑‑Yes, I see that.

PN3936

Yes. You have seen that before I take it?‑‑‑Yes.

PN3937

And if you go over the page to 427 and you see the middle part of that page above the extracted quote there's a paragraph, "It appears therefore", do you see that?‑‑‑Yes.

PN3938

And there it indicates on the one side we have serious objections and non-probability samples, do you see that, summarised in remarks by a Leslie Kitt. Do you see that?‑‑‑Yes.

PN3939

And then after that quote the paper indicates that:

PN3940

On the other practical side it is also true that it is hard to deny advances in modern approaches to dealing with non-probability samples, and it is also hard to object to countless examples of successful and cost effective implementations in (indistinct) practice.

PN3941

Do you see that?‑‑‑Yes.

PN3942

And the first sentence of the following paragraph the authors indicate that they recommend to more openly accepting the reality of using statistical standards, statistical inference approach as an approximation in a non-probability setting. Can you see that?‑‑‑Yes.

PN3943

So the authors are actually suggesting that whilst in a strict sense one can't use statistical measures in a non-probability sample we have to be practical here and we should be open to using such measures, at least to produce approximations, correct?‑‑‑That's a broad statement. I mean the question of whether or not that's appropriate is obviously context specific, highly context specific.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3944

In any event that's the general view that's being expressed by this paper that you've extracted quotes from in your report, correct?‑‑‑I don't agree with that as of that sentence as being a general view. For example if we go back to the previous page you'll see the second last complete sentence, "By abandoning probability sampling principles we usually also abandon the science of statistical inference and instead enter into the art and craft of shaping possible practical procedures." I think that's - that's a sentence which conveys a rather different meaning or different view to your - the single other sentence that you've pulled out on the next page.

PN3945

Did you read the following sentences to that one you identified, that is they go on to say:

PN3946

The experience based in trial and errors is essential here, as well as the intuition (indistinct) of the researcher correspondingly with complex problems, and expert advice or panel expert with rich experience can be extremely valuable.

PN3947

?‑‑‑Yes.

PN3948

That is in neutralising non-probability samples it's important to have experts who have knowledge of the population being examined who are able to make judgments based upon their knowledge and expertise in relation to the generalisations that can be made from a sample, correct; that's what's being said there, correct?‑‑‑Yes. Well, it's important here just to sort of put this in our present context is that we have some research work that was undertaken a number of years ago, and that research work had a particular focus, and I think the attributes and the properties of that research were well documented and well understood. From what we have in the reports furnished in these proceedings is the use of a research work in purpose (a) in order to draw conclusions and make emphasis in relation to a separate purpose, purpose (b), and there's nothing in this publication here that suggests that that is in any way appropriate without a lot of extra empirical and other considerations which haven't been made.

PN3949

Can I go back to your first report at paragraph 71 - - -

PN3950

JUSTICE ROSS: Someone has just joined and has left their microphone on. Can you put yourself on mute.

PN3951

MR GIBIAN: You will see it commences on the preceding page at paragraph 64, but you deal with statistical measures that have been applied to the outcome of the survey research. Do you see that?‑‑‑Yes.

PN3952

And you at paragraph 71 indicate - in 72 indicated that you replicated certain or someone in your company replicated the application of two sample (indistinct) tests, do you see that?‑‑‑Yes.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3953

And reached the same outcomes as recorded in Dr Underhill's report?‑‑‑Yes.

PN3954

And then in your second report at paragraph 26 you - or perhaps starting from paragraph 22 you refer to the further, or the report in reply that Dr Underhill prepared?‑‑‑Yes.

PN3955

In which she applied the Mann-Whitney U test?‑‑‑Yes.

PN3956

Known as I understand it as a non-parametric test?‑‑‑Yes.

PN3957

And over at paragraph 26, or paragraph 25 you set out a partial sentence from Dr Underhill's second report in which she indicated the results approximate what wouldn't be expected to be found for the sample population. Do you see that?‑‑‑Yes.

PN3958

And then in paragraph 26 you say that's technically correct, that is that there is a statistically significant difference I should say between the medium values of earnings for piece rates and hourly workers, such that the conclusion is necessarily limited to the sample population. Do you see that?‑‑‑Yes.

PN3959

So you agree that the application of the Mann-Whitney U test was appropriate and indicated a statistically significant difference between the earnings of, immediate earnings of piece rates and hourly paid workers for the sample that was used in the studies, that is the working holidaymaker group?‑‑‑Well, it was with the addition in that statement (indistinct) with the word "vulnerable" which was a stated focus of the study.

PN3960

The difficulty expressed is the broadening of that to the broader horticulture workers, is that right?‑‑‑Yes.

PN3961

All right. The second concern then that you raised is as to self-selection bias, that is in any survey which is voluntary the sample may be affected by the characteristics of persons who are likely to put themselves forward?‑‑‑Yes.

PN3962

In this instance I think you speculate that individuals who had some dissatisfaction with their pay may be more likely to put themselves forward?‑‑‑I wouldn't use the term "speculate", and I would note that this is a matter in which I agree with Dr Underhill who herself has acknowledged the existence or like existence of self-selection bias.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3963

I suppose it's speculation on everyone's part, but I wasn't meaning anything particularly pejorative there. You're suggesting that people who had some dissatisfaction with their pay were more likely to respond to the survey; correct?‑‑‑I'm not – I am, but I'm not – you used the word 'speculation', and I would quibble with that.

PN3964

Well, anyway, it's guesswork on anyone's part. But anyway, that's the concern that you are raising; correct?‑‑‑Again, I would quibble with 'guesswork', but - - -

PN3965

I withdraw the reference to guesswork. I'll move to the next question, Mr Houston. Now, firstly, the presence of some form of self-selection bias, some degree of self-selection bias is inevitable in any survey type approach, unless there's some form of compulsion for people – selected group to participate; correct?‑‑‑Well, I wouldn't quite put it – I mean, I wouldn't quite put it in those terms. I mean, self-selection biases are something that – that perhaps is – can vary by degree. Perhaps I'll – I think that's a fair statement of that issue.

PN3966

That is, if you are conducting a survey which is voluntary, there's always the potential some form of self-selection bias. All you're saying is that the degree may vary, depending on the situation?‑‑‑Well, all surveys are voluntary at the end of the day. So the question – the question is, how – what is the process by which people been identified and recruited to undertake a survey which, at all points, must be voluntary? So – because a survey under duress is not much good either. So the self-selection bias most appropriately refers to the factors that shape the recruitment of participants.

PN3967

Yes. That is, you agree that all surveys are voluntary, so there is always the potential for self-selection bias, in that the current population that are more likely to respond may have some features which are not representative of the whole population; correct?‑‑‑No, I don't agree with that. You're conflating voluntary and self-selection, and I don't think that's very helpful. Self-selection is a particular feature of - - -

PN3968

If it's voluntary, there is inevitably self-selection; correct?‑‑‑I don't agree with that conflation.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3969

Well, the people are volunteering, in the sense that they are choosing to participate, and in that sense, they're self-selecting. I think what you are saying is that there are steps that be taken to endeavour to reduce the effect that that might have on the survey outcomes; correct?‑‑‑No. You're conflating two things. So if I'm – if someone calls me up on my phone and says, 'Would you like to participate in a survey?' and I says, 'Yes', and then they ask me about my characteristics, and the survey proceeds, I regard that as voluntary, because I could have said 'No.'

PN3970

But the self-selection bias that might result from that will be very small, particularly if the process of selecting the participants – let's say I'm a male, I'm aged – whatever I am, and then the process of stratifying the sample makes sure we've got enough males in each age group, and females, or whatever we're interested in.

PN3971

That survey, along those lines, is voluntary, but subject to very little self-selection bias. If, alternatively, I passively – compared to active recruitment, I passively recruit people by putting up notices or online sort of recruitment process, then that's a passive recruitment process, and that is much more prone to self-selection bias.

PN3972

And then you have other considerations on top of that which can make it more prone, such as, what is the messages that I'm conveying to people in that passive recruitment process that is likely to catch the attention of some people but not others? That can exacerbate that self-selection bias. In that spectrum of things, they're all voluntary. But the ones that I mention last will be much, much more compromised by the risk of self-selection bias than the first kind.

PN3973

And there are steps that can be taken to endeavour to reduce the potential for self-selection bias, such as ensuring the method is likely to reach as much of the target group as possible, or to provide incentives to participate which may attract this interest of participants; correct?‑‑‑Yes. They – they are both things that can help relieve that. But if, at the same time, the messages that I am conveying in the recruitment process are – can themselves be a significant factor in self-selection bias.

PN3974

So if I'm conveying a message that I'm interest in finding out horticultural worker earnings, just put in those perhaps more neutral terms, that will be less prone to self-selection bias than a recruitment message that said, 'I'm interested in vulnerable workers, or workers subject to some other attribute that perhaps is more likely to catch the attention of some but not others.'

PN3975

All right. And when you made your first statement, you didn't have access to materials used by Dr Underhill in obtaining participants for the surveys, correct?‑‑‑No.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3976

JUSTICE ROSS: Mr Gibian, can I get an estimate of how long you're likely to be? I've got other matters listed at 12 and 1 that I'm going to need to shift. How long are you going to be?

PN3977

MR GIBIAN: Half an hour, I think.

PN3978

JUSTICE ROSS: All right. Move on.

PN3979

MR GIBIAN: The next issue that you raise is that you raised a concern about whether hourly workers and piece rate workers are like for like, in the sense that they perform the same types of work?‑‑‑Yes.

PN3980

I think you refer to that in your first report, at – from paragraph 58?‑‑‑Yes.

PN3981

That was an observation you made, and particularly in the final – if I direct your attention to the final sentence at paragraph 62, you say you note that you're unable to assess the extent to which these factors explain differences in pay between the two groups. Do you see that?‑‑‑Yes.

PN3982

That is, you didn't actually have any knowledge as to whether there was any differences in work performed by hourly rate or piece work employees; correct?‑‑‑Is that a question in general, or in – I think your question relates, if I'm right, to the particular data collected on this survey.

PN3983

So you had knowledge either as to whether the sample of respondents to the survey who were paid hourly rates, as opposed to piece rates, performed any different work; correct?‑‑‑That's right. I'm saying that's a question that I don't know the answer to, and it could be important.

PN3984

So you're speculating. It may be in issue; you don't know whether it is in issue or not; correct?‑‑‑I'm not – I don't agree with the use of the term 'speculation.' I'm just saying that I can see from the material that I have described at paragraph 60, table 2.3, that there are varying rates, depending on tasks performed for hourly rate workers, and that that factor could be important in the data that you collect, and therefore the averages that you derive for hourly rate workers (indistinct) could affect a like-for-like comparison. It's not speculation.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3985

But you don't know whether it did or did not, in the sample that was actually used in the survey; correct?‑‑‑I'm saying that I think, on economic or just ordinary reasoning, it clearly could be a factor, and that it's important that we don't know that.

PN3986

Yes. You now know that 95 per cent of the sample performed harvesting work, correct? Because that's what Dr Underhill says in her reply report, correct?‑‑‑Yes. I've read that - - -

PN3987

And you know that the only classification referred to picking work in the award is level 1; correct?‑‑‑Yes.

PN3988

So you agree this is not an issue. The potential that you raised, that it was an issue is not the case; correct?‑‑‑Yes, assuming that what Dr Underhill has described is accurate, yes, that seems right.

PN3989

Well, you're not saying it's inaccurate, are you?‑‑‑Her - we certainly have the data, but I accept what she says about it.

PN3990

You then raise issues or you refer to the issue of piece rates and safe work practices from paragraph 74 of your first report?‑‑‑Yes.

PN3991

If you just go forward to paragraph 103, and I think you repeat this later on, it's at the bottom of page 3141, you say there that, in your opinion:

PN3992

Incentives created from an increase in piece rates may well have the opposite effect, that is, an increase in piece rates will improve financial returns workers receive from being more productive.

PN3993

And that, over the page:

PN3994

This could further encourage workers to focus on productivity and discourage workers from focusing on safety outcomes such as taking breaks and stabilising their ladder when climbing.

PN3995

Can you see that?‑‑‑Yes.

PN3996

Firstly, your understanding was that the application was seeking to increase piece rates; is that right?‑‑‑It's not precisely my understanding.

PN3997

That's what you say in the first sentence of paragraph 103, isn't it?‑‑‑Well, I - - -

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN3998

That is, you indicate, in response to what Dr Underhill has said in relation to her concerns that piece rates foster unsafe practices, that, in fact, the situation may be worse if there's an increase in piece rates; correct?‑‑‑Yes.

PN3999

And is that because you understood the application to involve an attempt to increase piece rates?‑‑‑Well, I understood that the objective of the application would be to increase piece rates because the effect - perhaps I should have put "increase the earnings" (audio malfunction) the workers.

PN4000

The reason why you say an increase in piece rates, in your opinion, might further produce unsafe work outcomes is because it would encourage workers to focus on productivity instead of safety, that is, if they could earn more by producing greater output?‑‑‑Yes.

PN4001

And that would only happen if there was an increase in the piece rates, that is, the amount that one could earn from increasing the output; correct?‑‑‑Yes, it would.

PN4002

Not increasing remuneration per se, that wouldn't have that effect, it's only if the marginal increase in improving the output would increase - is the source of increase of earnings; correct?‑‑‑That's right.

PN4003

And that's what you understood the effect of the application to be?‑‑‑I must admit, I haven't focused on the details of the effect of the application, so I'm happy to leave that to you and others. I'll just stick with the statement that I've got here, which is if there is an increase in piece rates, this effect could be important.

PN4004

Were you asked to express that opinion, an opinion on this subject in your letter of instructions?‑‑‑I'm sorry, I don't - I'm not sure if I understand the question.

PN4005

Were you asked to express an opinion in relation to the effect of the application on safe work practices in horticulture?‑‑‑I was asked to address an opinion on the - well, you have my instructions and I took as within the scope of my instructions to express an opinion on what I've called in my reply report, just for ease of discussion, the OHS causation conclusion drawn by Dr Underhill, which is one of the points that she offers by way of opinion in the concluding paragraph of her report.

PN4006

In any event, the premise of the opinion you express in paragraph 103 is that if an employee's earnings are dependent upon output, that may compromise safety; correct?‑‑‑I'm saying that, that's right.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN4007

If you then go back, at paragraph 98, you suggest that - sorry, at paragraph 97 at the bottom of page 1340, you say that:

PN4008

Survey research is not well suited to making causal inferences.

PN4009

Do you see that?‑‑‑I'm sorry, I didn't catch the paragraph number you were referring to.

PN4010

Paragraph 97 at the bottom of page 3140?‑‑‑Yes.

PN4011

You will see there that you assert that:

PN4012

Survey research is not well suited to making causal inferences.

PN4013

Do you see that?‑‑‑Yes.

PN4014

In order to make causal inferences, you would expect survey research to be supplemented by some form of qualitative analysis?‑‑‑Yes. Well - yes.

PN4015

Then you say that is - there may be - dealing with the changes to or elimination of piece rates would not necessarily improve work practices, you say; do you see that at the top of page 3141?‑‑‑I've just got my own report. Which paragraph, I'm sorry, are you referring to?

PN4016

Still within paragraph 97, the final sentence on the top of page 3141?‑‑‑Yes.

PN4017

You then refer, at paragraph 98, to a potential other explanation, namely, the use of contractors; is that right?‑‑‑Yes. I'm saying that the findings of the survey show that that could be important.

PN4018

That is, you don't have independent expertise in relation to OH&S in the horticulture industry?‑‑‑No.

PN4019

You don't know whether the use of contractors may or may not improve OH&S outcomes?‑‑‑No, I'm just - as I say, I'm just referring to the material that comes - that's put forward by Dr Underhill here.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN4020

You don't know whether contractor employees are more or less likely to be engaged on piece work rates than directly employed workers?‑‑‑I don't believe we have enough information to tell that.

PN4021

Finally, can I - sorry, two further matters. Firstly, if you go forward to paragraph 110 on page 3143, you'll see there that you refer to the research conducted in 2013/14; do you see that?‑‑‑Yes.

PN4022

You raise an issue as to whether it would have applicability in 2021; do you see that?‑‑‑Yes.

PN4023

Independently of what Dr Underhill says in her report, you don't have any - did not conduct any research or have any available data to you in relation to the extent to which there were changes in the workforce which would affect the applicability of that research in 2021?‑‑‑No, I don't.

PN4024

Similarly, over the page at page 3144, paragraph 115 at (a) at the top of that page in the second paragraph, you refer to the eight years data. Do you see that?‑‑‑Yes.

PN4025

Saying 57 per cent of casual or contract workers were from overseas; do you see that?‑‑‑Yes.

PN4026

You then say that, in your opinion, the statistic might be of limited relevance in light of the COVID-19 pandemic; do you see that?‑‑‑Yes.

PN4027

You didn't have any data available to you as to the effect or otherwise of the COVID-19 pandemic on that issue?‑‑‑No, I'm just relying on my economic reasoning and knowledge of changes that have happened in the economy consequent upon the pandemic.

PN4028

Secondly, if you go forward to paragraph 124 you will see there you deal with the average competent worker concept?‑‑‑Yes.

PN4029

And you set out in paragraph 124 assumptions that you were asked to make?‑‑‑Yes.

PN4030

And the fifth assumption towards the bottom of that paragraph was that a significant proportion of the workforce, for example 20 per cent or more, engaged on piece work rates under the Horticulture Award is not competent in the sense that you've been asked to assume?‑‑‑Yes.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN4031

That was a matter that you took on instructions, that is you don't know whether that's right or wrong?‑‑‑I was asked to assume it, yes.

PN4032

If you then go over the page and paragraph 125 at the top of page 3147 you say it's likely that a proportion of respondents in each of Dr Underhill's survey samples could be classified as not competent. Do you see that?‑‑‑Yes.

PN4033

Firstly, you have no knowledge of the proportion or otherwise that might fall into that category, correct?‑‑‑I'm making that statement based on the assumption given to me.

PN4034

Yes. And you are not suggesting that the proportion of persons who might according to the assumptions you were asked to make be not competent or be different in her sample compared to the workforce more generally, you just don't know one way or the other, correct?‑‑‑I'm making that statement based on the assumption that was given to me.

PN4035

All right. You then say at (d) that the average rate across all piece workers and hourly equivalent terms will be expected to be below the average competent worker rate. Do you see that?‑‑‑Yes.

PN4036

That is assuming your assumption is right you would expect 20 per cent of employees if they were not competent to be earning below the average competent rate?‑‑‑Yes.

PN4037

You know that in the reports of Dr Underhill in report 1 92.5 per cent were earning below what the average competent worker should have been able to earn. Were you aware of that?‑‑‑I don't recall that precise statistic, but I'm happy to accept that.

PN4038

And in report 2 100 per cent, that is all of the workers earnt below the amount that the average competent worker ought to be able to earn. Do you agree with that?‑‑‑I don't recall that. I don't think I've actually seen the (indistinct) data and I don't recall that precise statement being made, but I'm happy to take it as an assumption.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN4039

Assuming that's right based on your instructions that 20 per cent were not competent we're right to deduce that 80 per cent were competent, so 72 of that 80 per cent in study 1 although competent were paid below the amount that an average competent worker ought be able to earn, and in the second report all of the 80 per cent who were competent earnt below the average that a competent worker ought be able to (indistinct)?‑‑‑You can't make those calculations, because the 20 per cent assumption that I've been given at paragraph 24 applies to the workforce engaged on piece rates, which is the entire workforce, and we've already covered I think that this is not representative of the entire workforce. So you can't mix those two percentages up and start making further calculations using that, it's not (indistinct).

PN4040

The assumption you were asked to make was 20 per cent of the whole workforce. That's all that you were assuming, is that right?‑‑‑No, the assumption is as stated there, a significant proportion, e.g. 20 per cent or more of the workforce engaged on piece rates under the Horticulture Award. Now, I take that to be the entire workforce engaged on piece rates, not any sub-group, and the 20 per cent is an example, it's actually given a (indistinct) precaution, but whether it's 20 per cent or some higher number it's not relevant because this assumption relates to the entire workforce or the entire workforce that's engaged on piece rates, and the survey we have is a survey of a sub-group of the entire workforce, and therefore it's not possible to combine a percentage in relation to one thing with the percentage relating to a different thing.

PN4041

So all you're able to say is what you say in paragraph 125, "(Indistinct), namely a proportion might be not competent of the sample"?‑‑‑Yes.

PN4042

Thanks, Mr Houston.

PN4043

JUSTICE ROSS: Ms Burke?

PN4044

MS BURKE: Thank you, your Honour.

PN4045

TO WITNESS: Your Honour, I'm sorry to interrupt, but may I request a short break. I'm not sure how long we were planning to go for, but - - -

PN4046

JUSTICE ROSS: I will find out. Ms Burke, how long do you think you will be?

PN4047

MS BURKE: Twenty minutes at the most, your Honour.

PN4048

JUSTICE ROSS: Is five minutes all you require, Mr Houston?‑‑‑That would be much appreciated.

PN4049

All right. Don't discuss your evidence with anyone else during the short break, okay?‑‑‑Certainly.

*** GREGORY JOHN HOUSTON XXN MR GIBIAN

PN4050

The others can remain on the line and we will resume in five minutes or so.

<THE WITNESS WITHDREW [11.56 AM]

SHORT ADJOURNMENT [11.56 AM]

RESUMED [12.01 PM]

<GREGORY JOHN HOUSTON, RECALLED [12.01 PM]

CROSS-EXAMINATION BY MS BURKE [12.01 PM]

PN4051

Thank you, Mr Houston, can you see and hear me all right?‑‑‑Yes, I can, Ms Burke.

PN4052

I just wanted to ask just briefly some questions about your letters of instruction, or specifically the assumptions that you were asked to make. I think Mr Gibian took you to that. That's the letter dated 10 June of this year and that's at 3199 of the electronic court book?‑‑‑Yes.

PN4053

Are these the only assumptions that you received from Seyfarth Shaw in preparing your report?‑‑‑Yes.

PN4054

Any assumptions that you made yourself are stated in your report as such, aren't they?‑‑‑Yes.

PN4055

Reports, I should say. Okay. In terms of your second report, which was filed on Friday night, did you receive a written letter of instruction to prepare that report?‑‑‑No.

PN4056

Okay. I think you confirmed earlier that you were provided with and considered the reports of Dr Howe and Dr Underhill and the material attached to their reports. Have you read the transcript of the cross-examination of Dr Howe and Dr Underhill?‑‑‑No.

PN4057

Has anyone spoken to you about their evidence in cross-examination?‑‑‑No, other than the fact that they have been cross-examined, no.

PN4058

Yes, but the substance of it hasn't been discussed with you?‑‑‑No.

*** GREGORY JOHN HOUSTON XXN MS BURKE

PN4059

All right. In your first report, at paragraph 49, you described self-selection as something which occurs when respondents decide themselves whether or not to be surveyed and that self-selection will introduce bias where the characteristics of those who opt in are different to those who opt out. Is it your opinion that horticulture workers who participate in surveys or focus groups regarding their experiences in the industry are more likely to be dissatisfied workers and that dissatisfied workers are more likely to have received lower pay for their work?‑‑‑Just in the terms that you've put that question, I don't think that more likely necessarily follows. Your question is focused on workers that participate in focus groups. Self-selection is both the process of how they got there rather than the ones - yes, it's how they got there. So, a focus group in itself doesn't necessarily mean there's self-selection bias, it's the process of recruitment that's very important for self-selection.

PN4060

Okay. So it's not a general proposition you would endorse, you'd need to look at the particular instrument to determine if there was self-selection bias in that way I've described?‑‑‑Well, I'll put it in the terms which I just did, which is it's the process by which people were recruited to those focus groups that's the most important.

PN4061

I see. All right. So, can I ask you to assume for a moment on this process of recruitment point that workers who participated in a particular survey or focus group were identified by their employers as potential participants in that study and were told by their employers, "If you want to participate in the study, you can do it" and then the workers then determined whether or not they wanted to do that. Assuming that, do you agree that it would be less likely that those workers would be disgruntled workers?‑‑‑Well, just on that very narrow assumption, but it depends a bit on what's the nature of the communication made between - you know, to the employer and then from the employer to the workers.

PN4062

So you would need to look at that assumption in the broader context of the recruitment process?‑‑‑Yes, I think the fine details of these sort of processes can be quite important.

PN4063

Do you agree that workers who have been identified by their employers as potential participants in a survey is a relevant characteristic when you are looking at whether there is a bias in the survey participants or not?‑‑‑Let's just break this down. Bias means when something is - you know, there's been a - let's just say, when you say "bias"?

*** GREGORY JOHN HOUSTON XXN MS BURKE

PN4064

I don't mean good or bad, I mean that workers who are invited by their employer to participate in a survey will have a particular - can be categorised as having that particular characteristic?‑‑‑Well, I think let's just sort of break this down a bit so we're all clear. If you're - when you undertake a survey and you're seeking to generalise the results of that survey to a broader conclusion, the first question is "What is the population of interest?"

PN4065

Mr Houston, not all surveys are taken for the purpose of broadening the results to - expanding the results to a general population, it might be a survey of a very specific population?‑‑‑I agree. I didn't say - the word "population" is a sort of statistic - I'm using it in its statistical sense, which is what is the wider group that you're interested in understanding and you take a survey to select people using a survey in order to draw inferences about a wider group, which statisticians tend to call population. Now, there's all sorts of steps in the process by which one can introduce, inadvertently or otherwise, bias into the process. There may be focus groups, there may be quantitative or qualitative surveys and there's the way - so each of those steps has the potential to make the participants that you're surveying or the focus groups participants to make them non-representative of the wider population or the wider group you're seeking to draw inferences about.

PN4066

Okay, but - - -?‑‑‑You're asking me some quite specific questions about, "Well, if you've gone through employers, will that reduce self-selection bias?" Well, it might or it might not, it depends on what is your sort of - what is your ultimate group of interest that you're looking for, but if you're looking to identify workers and you do that through employers, that could be helpful, but it also may not be because - - -

PN4067

Mr Houston, I might be able to short-circuit this a little bit. I understand and I'm not asking you about how to design a survey and all of the factors that you need to take into account, I'm just asking if it is relevant to know when you're analysing the results of any survey that the participants are workers who were identified by their employer as potential participants? Now, of course, the relevance of it will depend on the questions in the survey and the purposes of the survey, but you wouldn't say, would you, that workers invited or identified by their employers to participate in a survey is irrelevant to your analysis of that survey, would you?‑‑‑No, it's not irrelevant, of course.

PN4068

And depending on the rest of the recruitment process and the design of the survey and so forth, that fact could produce a bias in the results?‑‑‑If your interest in workers and you approach those workers through employers, then that process could introduce a bias because the employers might only direct you to one kind of worker or another. So if the employers are sitting (audio malfunction) in some sense - you know, it depends on how - what the role is of the employers in that - they may be a filter, they may not be. If you ask an employer for the employee records then the significance of that filter may be reduced if you went to their records, and if you're just asking for their opinion about which (indistinct) it's including you may get a different influence. So these are quite subtle forces.

*** GREGORY JOHN HOUSTON XXN MS BURKE

PN4069

All right. And still on self-selection bias I think you said in your report, your reply report or your reply to the reply that you agree one way to minimise that bias can be to incentivise participation. Another way to minimise self-selection bias could be to ensure that the invitation to potential participants in phrased in neutral terms. Do you agree with that as a general proposition?‑‑‑Yes.

PN4070

All right. Now both you and Dr Howe have noted some limitations of the national survey of vegetable growers, which was appendixed to Dr Howe's research report "Towards a durable future", and I ask that you be provided with that before this morning and I hope you have a copy of that?‑‑‑Yes, I do.

PN4071

Do you have that in PDF or electronic form? Sorry, in hard copy or electronic form?‑‑‑I think I've got both.

PN4072

All right. Which would you prefer and I will use those page numbers?‑‑‑Probably the hard copy form would be just a little bit simpler if that's helpful.

PN4073

No problem. Now, I think you summarised in your reply report the limitations of this particular survey and they're probably most conveniently located at paragraph 53 of that report for you, Mr Houston, and everybody else who's following. I don't need to go through them, but they're summarised there. I just wanted to ask you about a couple of other aspects of this survey. You were aware I think that the sample size of participants in this survey was 332 growers?‑‑‑I don't recall that number exactly.

PN4074

In fairness it's not a numbers test, and I might direct you to page 3 of the survey?‑‑‑Page 3 of the - - -

PN4075

I beg your pardon, page 3 of annexure C?‑‑‑I'm sorry, annexure C is entitled - - -

PN4076

"Vegetable growers, practices, experiences and views concerning employment of seasonal farm labour", and it's a red page. It looks like this?‑‑‑Maybe if you could just give me the court book reference. I'm not sure I have got that directly in front of me.

PN4077

All right. It's not in the court book, it was a bundle of appendices that was tendered by the AFPA as a separate PDF last week, and it may have been emailed to you this morning by Seyfarth Shaw?‑‑‑So let me - so the document I have emailed to me this morning has got a blue cover with the words "Appendices" - - -

*** GREGORY JOHN HOUSTON XXN MS BURKE

PN4078

That's the one, and if you go to page 11 of that PDF - - -?‑‑‑Yes.

PN4079

- - - you should see a page that's headed "Executive summary", and then, "This report presents findings of a survey" - blah, blah, blah?‑‑‑Yes.

PN4080

Okay, good. And you can see there in the third line that this report notes that the sample was 332 growers?‑‑‑Yes.

PN4081

All right. And the sample frame itself reading on from that line was based on contact lists provided by peak grower bodies in each state?‑‑‑Yes.

PN4082

For some reason the territories were left out. And I think you observed in your first report that the survey is not a representative sample of the horticulture sector because it excludes fruit growers. That's obviously the case, isn't it?‑‑‑Yes.

PN4083

And do you agree it may also not be a representative sample of all vegetable growers given that the sample frame was based on contact lists provided by peak grower bodies?‑‑‑Well - - -

PN4084

It's possible, isn't it?‑‑‑It's possible, but, you know, on its face it seems a lot like a good start in understanding the realm of vegetable growers.

PN4085

And is that because you assume that peak grower bodies have contact details of all vegetable growers?‑‑‑Well, I'm not assuming they have all, but it may well - - -

PN4086

It's a good start?‑‑‑It's a good - I think I use the term it's a good start and that's a good description.

PN4087

All right?‑‑‑It doesn't require - I think we discussed earlier this morning that in designing a sampling frame is a sort of a little bit of process of undertaking research efforts and building (indistinct) a more comprehensive picture of your population and then working with what you have - - -

PN4088

You do your best - - -?‑‑‑Have in that picture.

PN4089

Sorry to cut you off. Yes, you do your best with what you have?‑‑‑Well, I wouldn't put it that way. You focus on the population that you are interested in and then you do your best to establish all of the range of characteristics that could be relevant to the topic of interest. That's different from just taking what you had before and assuming that that will be good enough.

*** GREGORY JOHN HOUSTON XXN MS BURKE

PN4090

Yes. I should avoid the commentary. Can you look, please, at page 8 - sorry, that is PDF page 16 and internal number page 8 of this annexure?‑‑‑Yes.

PN4091

That's the page headed "Methodology"?‑‑‑M'mm.

PN4092

All right. And you can see there that under the third heading "Population being surveyed" and the sample frame there's a reference to the ABS estimate that there are just over 4,000 vegetable growing businesses again just in the states, but the sample - - -?‑‑‑Yes.

PN4093

- - - reading on:

PN4094

The sample frame with complete coverage of this population was not available. Grower contact lists were provided from the peak bodies, and after accounting for duplicate phone numbers the combined list provided contained telephone numbers for 1,952 contacts.

PN4095

So that was the beginning, that was the start of the sample pool, potential participants in the survey?‑‑‑Yes.

PN4096

And then if you have a look over the page or scroll down to the next page at table 1 there it sets out the process by which certain participants were excluded. I should just pause and ask, Mr Houston, if you've reviewed this before?‑‑‑Not in detail.

PN4097

Yes?‑‑‑Yes.

PN4098

All right. So if you have a look at table 1 you can see in part B that a total of 540 growers - sorry, 540 people, or telephone numbers anyway, were identified as not being vegetable growers, and that includes some 201 calls that were disconnected or fax numbers?‑‑‑Yes.

PN4099

So you immediately knock out a third, and that leaves a sample pool of just over 1,000 growers, and then look at part C and you will see that of that 1,012 members of the remaining sample pool 98 refused to participate?‑‑‑Yes.

PN4100

Forty-six had difficulty communicating in English, and 467 either didn't answer the phone or didn't return voicemails?‑‑‑Yes.

*** GREGORY JOHN HOUSTON XXN MS BURKE

PN4101

So that leaves 401 people left, and then if you look at part A you will see that five interviews were terminated partway through the interview by the grower?‑‑‑Yes.

PN4102

Thirty didn't keep appointments, and 34 were away over the entire survey period, and that's how you get to 332 growers interviewed out of an initial sample pool of 1,552?‑‑‑Yes.

PN4103

Now, is this the sort of instance that you would agree those 332 growers could be described as self-selecting to participate in this survey?‑‑‑No.

PN4104

Does that mean that you don't accept that there may be self-selection bias among these growers?‑‑‑Well, no, I think this is what I would call sort of active recruitment process and - - -

PN4105

Didn't you say earlier, Mr Houston, that the recruitment process was what you looked at to determine if there had been - if there was self-selection bias?‑‑‑Well, we're just talking here about - I'm sorry, I'm not quite sure what you are - maybe if I just understand your question again, please.

PN4106

That's fine. My question was whether you accept that there may be self-selection bias, meaning the characteristics of those who've opted in are different to those who have opted out amongst this 332 grower pool?‑‑‑Well, I think it's possible, but I don't - I mean this is what I would - what's described here is - first of all, this is a process of recruiting growers. There's a separate step, a subsequent step, about getting to workers after growers, but if we're just dealing with - - -

PN4107

This is a growers survey, so that's all I'm asking you about?‑‑‑Yes, but just in terms of recruiting growers, I wouldn't think I would characterise this is as a self-selection issue because they haven't - they've only - they haven't actually self-selected, they've been - I've put it more that they have been recruited through this structured process that's described here and, you know, look, it's possible that there's - that that's given rise to some bias, but it looks actually quite a good process to me.

*** GREGORY JOHN HOUSTON XXN MS BURKE

PN4108

So, the fact that some refused, they're just rejecting a recruitment, they are not self-selecting out of the survey? Is that your view?‑‑‑Well, they are obviously self-selecting out, but when - I think we discussed this morning, I think of self-selection and I think this is, you know, a (audio malfunction) sort of interpretation. A self-selection is more when you make a survey available but the participants identify and actively select themselves to participate. Here you've got a process where the proactivity has been in the opposite direction, so someone has proactively tried to contact people and it's always the case with a survey that some people will decline because they - for whatever reason they may have for declining.

PN4109

But don't you always have to proactively approach people to see if they'll participate in a survey or not, I mean, whether that's by a Facebook ad or a telephone call?‑‑‑Well, I think one's a bit - I mean, I think we may be just dancing around what proactive means, but a sort of - if something's - a sort of passive broadcast advertisement is slightly different, where people may be attracted to or may not be attracted to, is quite different from a phone call that's an active recruitment process when the person seeking to recruit those survey respondents has got no ability to understand whether that person may be disaffected - "disaffected" is perhaps not the right word - but may have sort of - may be sort of slanted more to one part of the population or another, whereas a passive recruitment process that says, "Well, come and tell us if you're a dissatisfied worker", that is more prone to - or I think that's what I would more describe as something that's more prone to self-selection bias - - -

PN4110

Is it - - -?‑‑‑ - - - (indistinct) that bind anyone, you're less likely to respond.

PN4111

Is it your view that something that's advertised on social media, for example, is that what you mean by a passive recruitment process?‑‑‑By its nature, it's more passive, yes, because it's up to people to notice it and respond.

PN4112

But, Mr Houston, surely you know and understand that there are very sophisticated algorithms that target ads at people all the time by virtue of tracking everything they look at online and identifying a pool of potentially interested participants or a target pool; you'd accept that, wouldn't you?‑‑‑Yes, of course.

PN4113

So that's not passive in that sense, that's quite targeted?‑‑‑Well, it may be - all these things are targeted in the sense of calling vegetable growers as targeted, but a call, you know, is what I would call more proactive than something that appears in one's Facebook feed or some other online mechanism that people can, you know, more easily choose to ignore.

PN4114

Well, 467 didn't return any of these calls and voicemails and 30 people didn't keep appointments, so it seems like people can ignore phone calls pretty easily as well, doesn't it?‑‑‑Yes, I agree with that, but you don't know - just because somebody ignores a phone call, you don't know anything about their attributes.

PN4115

No. I think we probably agree, don't we, that we don't know the reasons why people might not have participated in this survey?‑‑‑That's right.

*** GREGORY JOHN HOUSTON XXN MS BURKE

PN4116

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

PN4117

JUSTICE ROSS: Any re-examination, Mr Dalton?

PN4118

MR DALTON: Yes, briefly, your Honour.

RE-EXAMINATION BY MR DALTON [12.27 PM]

PN4119

Mr Houston, you were asked questions by reference to your CV that you'd attached to your primary report. Do you remember questions along those lines?‑‑‑Yes.

PN4120

I just have some questions about that. In your answers to some of those questions, you confirmed that you had no direct experience of providing any of the services that you provide in the horticulture industry; do you remember giving evidence to that effect?‑‑‑Yes.

PN4121

Can I ask you, does that lack of experience in horticulture affect any of the conclusions in your report?‑‑‑No.

PN4122

Can you explain to the Commission why you hold that view?‑‑‑Because the conclusions I've drawn in my report are conclusions in the nature of statistical method and that is a generic subject. I have wide experience in applying statistical and - statistical method or questions of statistical method or drawing conclusions by virtue of statistical method to a very, very wide range of industries and the principles that govern that process are generic principles, and so the observations that I've drawn here apply, or would apply, irrespective of the underlying industry, but for the very narrow observation that from the material available to me, it's clear that the underlying research that's relied upon for Dr Underhill's report and quantitative conclusions are much narrower in their focus than the broader population to which she's trying to apply her conclusions.

PN4123

All right. You also gave some evidence that confirmed that you yourself haven't conducted any surveys or other research into the horticultural workforce or their pay outcomes; do you remember giving evidence to that effect?‑‑‑Yes.

*** GREGORY JOHN HOUSTON RXN MR DALTON

PN4124

Can I ask you the question again: does that fact, that is, the fact that you have not conducted such work previously, affect any of the conclusions in your reports?‑‑‑No, it doesn't affect the conclusions and for the same reasoning that my focus is on the methodological soundness of the conclusions that are being drawn having regard to the underlying data from which they are drawn and the application that's being attempted from that underlying data.

PN4125

All right. Can I take you finally to court book 3159. Have you got that page up?‑‑‑Yes, I have. Page 2 of (indistinct) instructions.

PN4126

Yes. So that's the letter of engagement from Seyfarth Shaw to you on the date of 14 May 2021, and I'm taking you to the second page?‑‑‑Yes.

PN4127

Now, do you recall being asked some questions by reference to section 2 appearing on that page, Other aspects of the retainer?‑‑‑Yes.

PN4128

In particular, you were drawn to the first sentence under that section, which starts, 'In due course'?‑‑‑Yes.

PN4129

And you were asked whether you did any of that work, and you said – and your answer was, no, you hadn't?‑‑‑That's right.

PN4130

Can you just clarify for the Commission why you didn't do any of that work?‑‑‑Because subsequent to that retainer letter – I can't recall exactly what stage in the process, but to that retainer letter, it was communicated to me that Seyfarth Shaw did not want to proceed with that potential further evidence.

PN4131

Yes, thank you, Mr Houston. No further questions.

PN4132

JUSTICE ROSS: Nothing further from Mr Houston? Thank you for your evidence, Mr Houston. You're excused?‑‑‑Thank you, your Honour.

<THE WITNESS WITHDREW [12.32 PM]

PN4133

JUSTICE ROSS: That concludes the evidence. And we'll receive the redacted material attached to Ms Tan's statement in due course, Mr Dalton, after you've had an opportunity to settle that with Mr Gibian and Ms Burke.

PN4134

MR DALTON: Yes, your Honour.

PN4135

JUSTICE ROSS: And then we will receive the parties' closing submissions next Monday, I think, and then the oral hearing on the Friday. All right. Is there anything further from anyone? Any questions?

*** GREGORY JOHN HOUSTON RXN MR DALTON

PN4136

MR GIBIAN: Your Honour, there was just one matter. My attention was drawn to it – it's just an additional research paper which was referred to in Dr Underhill's report, but was not included in the material attached in the court book, which has some additional figures in relation to working holidaymakers in the – which might of some assistance, by way of clarification. But if we – we'll reflect on that and circulate it if there's – if we want to, to put that also before the Commission.

PN4137

JUSTICE ROSS: All right. Nothing further? All right, thank you. We'll adjourn.

ADJOURNED INDEFINITELY [12.33 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AWU29 DOCUMENT FROM DR UNDERHILL TITLED "DISTRIBUTION OF AVERAGE HOURLY EARNINGS, HORTICULTURAL WORKERS"..... PN3641

GREGORY JOHN HOUSTON, AFFIRMED.................................................. PN3683

EXAMINATION-IN-CHIEF BY MR DALTON.............................................. PN3683

EXHIBIT #AFPA6 EXPERT REPORT OF GREGORY JOHN HOUSTON DATED 11/06/2021............................................................................................................................... PN3693

EXHIBIT #AFPA7 EXPERT REPORT IN REPLY OF GREGORY JOHN HOUSTON DATED 16/07/2021............................................................................................................. PN3700

CROSS-EXAMINATION BY MR GIBIAN..................................................... PN3703

THE WITNESS WITHDREW........................................................................... PN4050

GREGORY JOHN HOUSTON, RECALLED................................................. PN4050

CROSS-EXAMINATION BY MS BURKE...................................................... PN4050

RE-EXAMINATION BY MR DALTON.......................................................... PN4118

THE WITNESS WITHDREW........................................................................... PN4132