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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

DEPUTY PRESIDENT CLANCY

COMMISSIONER BISSETT

COMMISSIONER O'NEILL

 

AM2021/69

 

s.158 - Application to vary or revoke a modern award

 

Application by Australian Municipal, Administrative, Clerical and Services Union - Victorian and Tasmanian Authorities and Services Branch

(AM2021/69)

 

Victorian Local Government Award 2015

 

Melbourne

 

10.11 AM, MONDAY, 11 APRIL 2022


PN1          

DEPUTY PRESIDENT CLANCY:  Good morning.  Could I take appearances, please.

PN2          

MR M ROBSON:  May it please the Commission, Robson, initial M, appearing for the Australian Services Union.  With me are also Ms Deeana Predic - that's spelt P-r-e-d-i-c - and Mr Samuel Fary.

PN3          

DEPUTY PRESIDENT CLANCY:  Thank you, Mr Robson.

PN4          

MR M MINUCCI:  If the Commission pleases, Minucci of counsel seeking permission to appear with my learned friend Mr Katz for the local councils and library corporations identified in schedule A to the written outline of submissions.

PN5          

DEPUTY PRESIDENT CLANCY:  Thank you, Mr Minucci.  Mr Robson, any comments from you on the application for permission that's being sought by the councils?

PN6          

MR ROBSON:  No problem from us, sir.

PN7          

DEPUTY PRESIDENT CLANCY:  Thank you.  I can advise that the members of the Full Bench have considered the question of permission, and having regard to the matters in section 596, and in particular 596(2)(a) the Full Bench is persuaded that permission ought be granted, and so grants.  The parties have recently sent in some positions on the evidence and objections to elements of the evidence that both sides are intending to lead.  It was foreshadowed, Mr Robson, that there were some discussions.  Is there any update that you can provide in relation to those discussions?

PN8          

MR ROBSON:  No, Deputy President.  We weren't able to resolve the issues.  We have provided our objections to Mr Katz last week on Friday, but we haven't been able to resolve anything.  We will need to do that today.

PN9          

DEPUTY PRESIDENT CLANCY:  All right.  Well, the Full Bench's intended approach is to deal with the objections in this way.  We note that insofar as the objections to the applicant's evidence are concerned they relate to the witnesses in the terms that are outlined, and we will deal with them as we come to each individual witness in this way; if there's anything further that either party wishes to say about the objection that's being flagged we will hear that before the witness is called and then we will proceed to hear from the witness concerned, and then when the Full Bench comes to consider the evidence of that witness we will take into account the testimony that's given together with the objections and the submissions in reply to those objections that have been made in finalising a view as to the evidence of that particular witness.  Is that clear?

PN10        

MR ROBSON:  If the Commission pleases.

PN11        

MR MINUCCI:  If the Commission pleases.

PN12        

DEPUTY PRESIDENT CLANCY:  All right.  We don't propose to take any opening statements unless either party is intent on delivering them, and we propose simply to move into the evidentiary case for the ASU as applicant.  Now, you've got a number of witnesses, how are you placed in terms of those, Mr Robson, are you ready to start with the evidentiary case?

PN13        

MR ROBSON:  Thank you, your Honour.  I propose to open, and we are ready to start our evidentiary case once that's ready.

PN14        

DEPUTY PRESIDENT CLANCY:  All right.  We will take an opening statement then.  Mr Minucci, do you wish to reply to that opening once it's given?

PN15        

MR MINUCCI:  At this stage I don't propose to respond, Deputy President, unless there are matters that may come up, but I would be surprised if I needed to trouble the Commission in opening.  Simply as an administrative matter that we have given to my learned friend yesterday in relation to the witnesses required for the applicant before this Full Bench.  Having had the opportunity to review the materials over the weekend in preparation for the hearing I only require Mr Herrera for cross-examination.  The balance of the witnesses will not be required for cross-examination, which means that we have made arrangements for our witnesses to be available today and there will be a slightly revised witness order as a consequence of that, but it also hopefully means we should be able to finalise this matter within two days instead of three.

PN16        

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, given that I suppose first and foremost can we assume that Mr Herrera is available on relatively short notice?

PN17        

MR ROBSON:  Yes, indeed he is.  We will call Mr Herrera first and then we intend to lead some evidence from Ms Leighanne Smith, but that's all the witnesses we would be calling this morning.

PN18        

MR MINUCCI:  Deputy President, to that end in respect of Ms Smith's evidence I don't know what this evidence is beyond what's in the witness statement I have been provided.  So to the extent that the evidence purports to traverse matters beyond what's already canvassed in the material I don't have instructions about those matters, nor do I have any idea what those matters actually are in fact.

PN19        

DEPUTY PRESIDENT CLANCY:  All right.  Well, we will wait and see what they are.  If issues arise we will deal with them then.  All right.  Thank you.  Mr Robson if you would like to make your opening statement, please.

PN20        

MR ROBSON:  Thank you, Deputy President, and Commissioners.  Today we're shining light on a dark corner of the modern award system.  The Victorian Local Government Award, which I will call the Victorian Award, is a state reference public sector award, and by a pure accident of procedure it was not reviewed alongside the industry and occupation modern awards during the four yearly review.  Instead it was programmed for a second phase of the review that would commence once the review of industry and occupation awards had finished.

PN21        

As you would be aware we're in the eighth year of that first phase and it isn't wrapping up any time soon.  Because of that procedural argument the ASU has been forced to bargain for matters that are now simply part of the safety net in most other areas of the modern awards, and this includes the local government sector outside of Victoria, and employers providing labour on an on-hire basis to Victorian local governments to which that, what I will call the Local Government Industry Award 2020, or which I will call the Federal Award for ease of reference, applies.

PN22        

So the intent of our application is simply just to speed things up a little bit.  Our application was intended to simply drag and drop from the Local Government Industry Award, the Federal one, and almost all proposed variations were adopted by the Commission without objection from the employers and covered by those awards, except that which is the subject of the proceedings today.

PN23        

So what we're doing is we're simply asking the Commission to apply a two hour minimum engagement that applies to almost every other worker covered by an award in local government, and would apply to almost any other worker in the country, and we're willing to make some reasonable accommodations for particular occupations.

PN24        

The purpose of these minimum engagements is to protect employees from exploited working arrangements; work that costs them more to attend than they earn through their labour; work that disrupts their social and family lives, and work that is inefficient and unproductive.  We propose some carve-outs to our two hour minimum standard; swimming instructors, fitness instructors, personal trainers, cleaners working in small locations and school crossing supervisors.

PN25        

What we say is that for swimming instructors, fitness instructors we say the Commission should simply follow previous decisions regarding those occupations and apply one hour engagement that would apply to people doing that work under the Registered and Licensed Clubs Award in social clubs or the fitness industry.  We're not quibbling with those decisions and we're simply saying if you should drag and drop from other decisions we will accept that and do it here.

PN26        

From cleaners we have taken the scheme from the Cleaning Services Award where cleaners at small sites less than 300 square metres have a shorter minimum engagement than those at larger sites.  And then we come to school crossing supervisors.  We agree, we would say that's a fairly unique role, and I don't think there's any disagreement there, where there is a genuinely limited availability of work and we have proposed a one hour minimum engagement for those workers as well.

PN27        

For the most part the councils agree with us.  From our understanding from the joint report that was filed last year there's no dispute about the two hour minimum engagement.  Except for cleaners all those carve-outs were identified, and what you will hear today concerns relatively narrow disputed areas of work or occupations.  So those will be home carers, workers in the arts and culture space, livestock and saleyards, livery (indistinct) and stackers, pound attendants, community bus drivers, childcare workers and playhouses, and also leisure and aquatic centres, youth workers in social community and disability services, visitor information service and cleaners.

PN28        

Now, we would say that a two hour engagement or longer would apply to those occupations under comparable occupational or industry awards, and what the evidence will show is that - this does matter - casuals and local governments are no different from elsewhere, they need the protection of a two hour minimum engagement, and that this is a safety net issue.  The majority of councils have not negotiated enterprise agreements that provide for minimum engagements.  This isn't an issue that has been resolved through bargaining, and it's quite possible that making the variations we proposed will spur additional bargaining.

PN29        

What the evidence will also show is that there are a significant number of casuals working in Victorian local government; roughly 18 per cent of the total workforce in 2019, which are the last accurate figures we have available.  So this issue cannot be described as a marginal concern.  And the evidence will also show that the sky won't fall down if the Commission adopts the ASU's proposals.

PN30        

The first thing to say is that the majority of local government employers are covered by the award.  So this is an issue if there are inconveniences, if there are flexibilities that employers are seeking they can be negotiated for, and they are also not significant, the objections that have been raised.  There are a small number of casuals working in many of the sectors that are subject to dispute, and any of the issues that employers raise with the minimum engagement can be resolved through better organisation of work, more efficient practices or a fairer allocation of work between the different types of employment.

PN31        

So just to conclude the Commission would not be persuaded that there's anything unusual about casuals in Victorian local government that would mean that the standard of casual engagements that applies almost everywhere else shouldn't apply to these workers.  Apologies, your Honour, you're on mute.

PN32        

DEPUTY PRESIDENT CLANCY:  Thank you.  A question from me is in relation to the comments you made about 18 per cent of the local government workforce being casual, is that casuals across the board or the classifications that are the subject of this application, do they constitute 18 per cent?

PN33        

MR ROBSON:  So that's casuals across the board, and Ms Hardy summarises in her statement the numbers of casuals working in the sector.  There's a detailed reporting system in Victoria.  We can't say accurately for 2022, but we can say that the last time figures were available what that would have looked like.

PN34        

DEPUTY PRESIDENT CLANCY:  All right.  Thank you.  Well, at this point I invite you to call Mr Herrera.  I think he's in the waiting room.

PN35        

MR ROBSON:  Should we deal with the objections to evidence first?

PN36        

DEPUTY PRESIDENT CLANCY:  Sorry, for Mr Herrera?

PN37        

MR ROBSON:  Yes.

PN38        

DEPUTY PRESIDENT CLANCY:  All right.

PN39        

MR ROBSON:  It may be useful to put Mr Herrera back in the waiting room while we're doing that.

PN40        

DEPUTY PRESIDENT CLANCY:  Mr Minucci, I have noted the objections or the basis of the objections are largely, almost exclusively irrelevant on the basis of opinion.  Is there anything further you want to say about the nature of the objections, or do you want to expand upon those objections in any way?

PN41        

MR MINUCCI:  No, Deputy President, the objections, and I can say this in respect of all the (indistinct), they speak for themselves, so I don't propose to be heard in relation to anything further than the matters that I have raised.

PN42        

DEPUTY PRESIDENT CLANCY:  Mr Robson, you've had an opportunity to know what the objections are.  Is there anything you wanted to say in respect of any specific paragraphs that have been raised by the councils?

PN43        

MR ROBSON:  No, nothing particularly.  I think the first thing to say is that I think during the award review objections of these nature have been dealt with as a matter of weight, and I think the appropriate way to resolve it would be submissions about that during the closing arguments.

PN44        

DEPUTY PRESIDENT CLANCY:  I can flag that's how the Bench intends to deal with them.  We will hear the parties further in relation to the weight or however else they submit the evidence should be regarded, the paragraphs in question, and having heard from them in that way the Commission will make its ultimate decision in relation to those parts of the evidence.  All right.

PN45        

MR ROBSON:  Thank you, Deputy President, I call Sebastian Herrera.

PN46        

DEPUTY PRESIDENT CLANCY:  Thank you very much.  Good morning, Mr Herrera, it's Deputy President Clancy here.  I am sitting with my colleagues Commissioner Bissett and Commissioner O'Neill.  We have reached the stage of the hearing where we're going to take your evidence.  The first thing that will occur is my associate will take an affirmation from you and then Mr Robson will deal with your evidence-in-chief.  You will then have some cross-examination from Mr Minucci who's a barrister and is representing the local councils.  All right.  And you're on mute at the moment, so take yourself off mute, that's right, and my associate now will take an affirmation.  Thank you.

PN47        

THE ASSOCIATE:  Mr Herrera, please state your full name and address.

PN48        

MR HERRERA:  My name is Sebastian Herrera, (address supplied).

<SEBASTIAN HERRERA, AFFIRMED                                            [10.28 AM]

EXAMINATION-IN-CHIEF BY MR ROBSON                               [10.28 AM]

PN49        

DEPUTY PRESIDENT CLANCY:  Thank you.  Thank you, Mr Robson.

PN50        

MR ROBSON:  Mr Herrera, my name is Michael Robson, I'm an industrial officer for the Australian Services Union.  Have you made a statement in these proceedings?‑‑‑Yes, I have.

***        SEBASTIAN HERRERA                                                                                                              XN MR ROBSON

PN51        

And do you have that in front of you today?‑‑‑Yes, I do.

PN52        

And that's a statement of three pages with an appendix A and an appendix B, and that comes to a total of 13 pages?‑‑‑Yes, that's correct.

PN53        

To the best of your knowledge is this statement true and correct?‑‑‑The statement is mostly true, I just have a few amendments to make just in wording on a few paragraphs.

PN54        

Of course?‑‑‑So to my (indistinct) paragraph 12 and 13 just have a typo where it says 'causal' it should say 'casual'.

PN55        

Thank you?‑‑‑Paragraph 27 there's another typo in the part where it says 'to maybe to a one hour', should be changed to 'to maybe a one hour', and in paragraph 20 just to amend the wording for the sentence that says, 'No one, myself included, is interested in driving for up to an hour to only work for a handful of minutes.'  I'd like to amend that to say, 'No one, myself included, is interested in driving for up to an hour to only be paid for a handful of minutes.'

PN56        

Okay.  I don't think that's a correction that needs to be made, so we won't amend the statement as proposed by Mr Herrera.

PN57        

DEPUTY PRESIDENT CLANCY:  All right.  What was the second - - -

PN58        

MR MINUCCI:  Sorry, Deputy President - - -

PN59        

DEPUTY PRESIDENT CLANCY:  Sorry, just a moment.  There were two spelling corrections to 12 and 13, what was the second proposed amendment?‑‑‑The second was another typo in paragraph 27.

PN60        

Yes?‑‑‑There's just an extra 'to', t-o, 'to maybe to a one hour' should be just 'to maybe a one hour.'

PN61        

Thank you.  All right.  Mr Minucci, I take it paragraphs 12, 13 and 27 proposed amendments aren't objected to.

PN62        

MR MINUCCI:  No, not at all, Deputy President.

***        SEBASTIAN HERRERA                                                                                                              XN MR ROBSON

PN63        

DEPUTY PRESIDENT CLANCY:  All right.  What do you want to say about paragraph 20?

PN64        

MR MINUCCI:  It's not for the ASU to decide what this witness's evidence is or isn't or what changes ought be made to the statement.  If this witness wishes to change the statement at paragraph 20 in the manner described in his evidence that's his evidence.

PN65        

MR ROBSON:  Yes.  I was simply proposing, Deputy President, that it be addressed not as a correction but as a question asked of the witness.  But I'm in your hands with how you prefer to deal with that.

PN66        

DEPUTY PRESIDENT CLANCY:  You can ask him the question, he can clarify it and Mr Minucci can deal with it in cross-examination if he sees the need.  All right.  Thank you.  Subject to those changes - over to you again, Mr Robson, please.

PN67        

MR ROBSON:  Yes.  Subject to those changes, Mr Herrera, is your statement true and correct?‑‑‑Yes, it is.

PN68        

Thank you, Mr Herrera.  At paragraph 20 you say:

PN69        

Due to the nature of the industry and the fact that many technicians often have to travel to different performance locations no one, myself included, is interested in driving for up to an hour to only work for a handful of minutes.

PN70        

Is that your evidence?‑‑‑I just want to amend it to say 'to only get paid for a handful of minutes.'  The context is just basically if you get called for a shift and you end up, you know, doing really well on the job and you're quick and efficient and it only takes an hour, whereas the estimation was three hours, we would still be expected to be paid for those three hours, and that's a convention across the entire industry, and that's just what I meant by paid for only a handful of minutes.

PN71        

Thank you, Mr Herrera.  No further questions from me, Deputy President.

PN72        

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Herrera, Mr Minucci may have some questions for you now in cross-examination.

CROSS-EXAMINATION BY MR MINUCCI                                   [10.33 AM]

***        SEBASTIAN HERRERA                                                                                                            XXN MR MINUCCI

PN73        

MR MINUCCI:  If the Commission pleases.  Mr Herrera, just dealing with that last answer that you gave, you operate as a theatre technician, yes?

PN74        

DEPUTY PRESIDENT CLANCY:  I'm sorry, I beg your pardon.  Mr Minucci, you flagged some objections to the evidence which are noted by the Commission, but subject to those can I receive the statement into evidence?

PN75        

MR MINUCCI:  Yes, Deputy President.

EXHIBIT #ASU1 WITNESS STATEMENT OF SEBASTIAN HERRERA APPEARING IN THE COURT BOOK AT PAGES 70 TO 82 INCLUDING TWO ATTACHMENTS

PN76        

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Minucci, I'm sorry, you may resume.

PN77        

MR MINUCCI:  If the Commission pleases.  Mr Herrera, I just want to ask you some questions about your last answer.  Now, you've worked as an employee with the City of Greater Dandenong since 2008?‑‑‑Yes, I have.

PN78        

And as a theatre technician?‑‑‑Yes, I have.

PN79        

And you've solely worked for the Dandenong Council?‑‑‑Not solely, I've had other employers in other jobs throughout the industry over the years.

PN80        

Since 2008 you've been solely with the council?‑‑‑No, I've had other employers concurrent with that employment.

PN81        

Now, if I can take you to paragraph 18 of your statement where you say there that 'younger technicians aren't aware', et cetera.  That's speculative, isn't it, because you can't speak for them, can you?‑‑‑Well, I can't speak for them particularly, but I can relay things that have been told to me by younger technicians - - -

PN82        

That's not what you say in paragraph 18 though, is it?‑‑‑I don't understand what you mean.

PN83        

Well, the words 'the only exception', et cetera, to the balance of your paragraph you don't say anywhere in that last sentence that you're relaying what someone told you, do you?‑‑‑No, I do not.

***        SEBASTIAN HERRERA                                                                                                            XXN MR MINUCCI

PN84        

So when you've given your answer that's not actually correct.  What you're saying in your statement is you're speculating about what someone else thinks?‑‑‑No, because like I said I have been told by younger technicians that they have been - you know, the situation, and it is my opinion is that they have been taken advantage of and they're not aware of this convention.

PN85        

Certainly there's other than you no one else gives any evidence to your knowledge about the existence of this convention?‑‑‑What do you mean?

PN86        

Well, you've talked about a convention that supposedly exists across an industry.  You're working at a local council since 2008.  There's no one else giving evidence in this proceeding to your knowledge that also corroborates your evidence of the existence of an industry standard.

PN87        

MR ROBSON:  Objection, your Honour, how would he know what evidence has been filed on this proceeding.

PN88        

MR MINUCCI:  He's entitled to answer it.  If he doesn't know he doesn't know.

PN89        

MR ROBSON:  It goes to relevance.  What does it matter what evidence has been filed on this proceeding.  Mr Herrera's evidence is Mr Herrera's evidence.

PN90        

MR MINUCCI:  If the Commission pleases I will move on.  Now, younger technicians are given shadow shifts, aren't they?‑‑‑Sometimes, yes.

PN91        

I would suggest to you that they're always given shadow shifts?‑‑‑Not necessarily.  There have been instances in the past where just due to the nature of scheduling where we've just called in technicians to just come in and do a shift.  But every - I will concede that every effort is made to give shadow shifts and training to new technicians, particularly at (indistinct).

PN92        

And so you said training as well, didn't you?‑‑‑Yes.

PN93        

And so the giving of training and shadow shifts is not a disadvantage to them, is it?‑‑‑Certainly not.

PN94        

Moving then to paragraph 20 it's not common for Dandenong to roster short shifts on site?‑‑‑What do you mean by short shifts?

***        SEBASTIAN HERRERA                                                                                                            XXN MR MINUCCI

PN95        

An hour shift or less?‑‑‑No, that's not common.

PN96        

For two hours or less?‑‑‑No.

PN97        

Paragraph 21 - now, if people attend online meetings they're paid?‑‑‑Yes, they are.

PN98        

If they attend training they're paid?‑‑‑Yes, they are.

PN99        

And during the pandemic casual shifts in another areas of the council to earn money?‑‑‑Yes, they were.

PN100      

For example (indistinct) tubs?‑‑‑Yes.

PN101      

Meetings aren't mandatory?‑‑‑Some meetings are considered mandatory, yes.  I know - I think I know what you're coming to, and there were some meetings - - -

PN102      

DEPUTY PRESIDENT CLANCY:  I'm sorry, I'm having some difficulties with the audio.  There's been a couple of occasions where Mr Herrera has started his answer and I haven't been able to hear him while he's been talking.  We have been experiencing some issues with the Commission's connectivity.  So could I ask Mr Herrera just to start his answer to that question again, please?‑‑‑Yes.  So in terms of meetings being mandatory it depends on which meeting.  So there are some meetings that are called - online meetings that are called catch up meetings, and those are voluntary, but there are other meetings that are considered mandatory, particularly I'm thinking in terms of technical meetings, which we - yes, we just call them tech meetings, which is solely that, which is the technical department or those who are employed as technicians at the theatre will have an online meeting where we kind of discuss ongoing operational matters.  Those are considered mandatory, but like I said in practice they are - if you have other work elsewhere because of again the nature of the job, the nature of the industry, if you have other work elsewhere and you're unable to attend it's okay, we just make sure you get the minutes.

PN103      

MR MINUCCI:  That's right, and in dealing with precisely the context that you just referred to no one has been subject to disciplinary action or anything like that if they're not able to attend a particular meeting to your knowledge?‑‑‑No.

***        SEBASTIAN HERRERA                                                                                                            XXN MR MINUCCI

PN104      

Paragraph 27 of your statement, staff meetings are paired with training generally, aren't they?‑‑‑Not necessarily.  Like I said these technical meetings aren't paired with any sort of training, it's just a meeting.

PN105      

There are shifts that can start at 6 pm after business hours?‑‑‑Yes, there are.

PN106      

And then meetings that can start after business hours as well?‑‑‑Yes.

PN107      

And that's to accommodate other persons with other job commitments?‑‑‑That's the intention, yes.

PN108      

And they occur approximately two to four times a year?‑‑‑I couldn't give you a specific number.

PN109      

If the Commission pleases just one moment.  Sorry, Deputy President, and Commissioners, thank you for the indulgence.  I don't have any further questions of Mr Herrera.

PN110      

DEPUTY PRESIDENT CLANCY:  Thank you.

PN111      

MR MINUCCI:  And I should say sorry, Deputy President, just as a matter of the technology if there is a slight delay on my end between - if it looks like I'm trying to unmute myself and mute coming on I apologise, I think that's just a slowness on my end.  So I'm endeavouring to deal with it as best I can.

PN112      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, any matters in re-examination, or questions in re-examination?  You're on mute.

PN113      

MR ROBSON:  Apologies, your Honour, I seem to be having the same trouble as Mr Minucci.  No questions in re-examination from us.

PN114      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Herrera, thank you for your evidence this morning.  You are now excused from further attendance.  If you would like to remain as an observer to the hearing you're welcome to do so.  I would just ask that you turn your camera and microphone off?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                          [10.44 AM]

PN115      

DEPUTY PRESIDENT CLANCY:  Mr Robson, is Ms Smith available now?

PN116      

MR ROBSON:  Yes, your Honour, I believe she's in the waiting room.

***        SEBASTIAN HERRERA                                                                                                            XXN MR MINUCCI

PN117      

DEPUTY PRESIDENT CLANCY:  Could we please admit Ms Smith.  Good morning, Ms Smith.  My name is Deputy President Clancy, I am sitting here with my colleagues Commissioner Bissett and Commissioner O'Neill.  We are now going to take your evidence.  The first thing that will occur is that my associate will take an affirmation from you and then Mr Robson will lead your evidence.  Following that there may be some questions from Mr Minucci who is the barrister representing the local councils.  All right.  Thank you.

PN118      

THE ASSOCIATE:  Ms Smith, please state your full name and address.

PN119      

MS SMITH:  Leighanne Smith, (address supplied).

<LEIGHANNE SMITH, AFFIRMED                                                 [10.45 AM]

EXAMINATION-IN-CHIEF BY MR ROBSON                               [10.45 AM]

PN120      

DEPUTY PRESIDENT CLANCY:  Thank you, Mr Robson.

PN121      

MR ROBSON:  Ms Smith, my name is Michael Robson, I'm an industrial officer with the Australian Services Union.  I'm going to ask you some questions today, but first have you made a statement in these proceedings?‑‑‑Yes, I have.

PN122      

Do you have it in front of you?‑‑‑Yes.

PN123      

And that's a statement of six pages dated 15 February 2022?‑‑‑Yes.

PN124      

And it has annexures A through H with it?‑‑‑Yes.

PN125      

To a total of 31 pages?‑‑‑Yes.

PN126      

Thank you.  To the best of your knowledge is this statement true and correct?‑‑‑Yes, it is.

PN127      

Thank you, Ms Smith.  I tender that statement, your Honour.

PN128      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Minucci, aside of the objections that you flagged previously any objection to the receipt of this statement?

***        LEIGHANNE SMITH                                                                                                                    XN MR ROBSON

PN129      

MR MINUCCI:  No, Deputy President.

EXHIBIT #ASU2 WITNESS STATEMENT OF LEIGHANNE SMITH DATED 15/02/2022 WITH 76 PARAGRAPHS AND ANNEXURES A TO H

PN130      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, are there further matters?

PN131      

MR ROBSON:  Yes, with your leave I would like to ask some questions.

PN132      

DEPUTY PRESIDENT CLANCY:  All right.  We will hear those questions.  Mr Minucci, you can raise any issues with them as required.  Thank you, Mr Robson.

PN133      

MR ROBSON:  Ms Smith, could you go to annexure A of your witness statement, that's page 7?‑‑‑Yes.

PN134      

Could you explain to the Commission what is attached at annexure A?‑‑‑It's a roster.

PN135      

Is that your roster?‑‑‑Yes.

PN136      

Could you take the Commission through starting with Monday 18 May, what that day would have looked like for you?‑‑‑Okay.  I had a personal care first.  Do you want the times?

PN137      

Tell the Commission like starting at the beginning of your day when you left for work, what would this day look like for you?‑‑‑Okay.  I had a personal care in Lancefield from 9 to 9.30, and then I had a 15 minute travel time to a home care in Romsey, and that home care was for an hour and a half.

PN138      

What does a personal care shift entail?‑‑‑A personal care is a shower.

PN139      

And what does that include?‑‑‑It includes showering the client, maybe helping undressing, drying the client, dressing the client again.  We do clean up the bathroom when we're finished.

***        LEIGHANNE SMITH                                                                                                                    XN MR ROBSON

PN140      

Yes?‑‑‑And a lot of times we'll make them a cuppa, make sure they've had their tablets and everything.

PN141      

Are there any procedures that you need to follow when you enter a client's home?‑‑‑We log in and out of the client's home as we come in.  So - - -

PN142      

Sorry, please finish your answer?‑‑‑We log in to the client's home as we come in.

PN143      

And how do you log in?‑‑‑We used to log in by the phone, but now we have a new procedure called CareLink, so we do it on our phone now, we just press a button to log in.

PN144      

Once you've logged in you said you travel to another location and you perform a home care shift.  What does that involve?‑‑‑A basic home care shift is vacuum, mop and clean the bathroom.  There may be additional, making a bed, doing dishes, hanging clothes on the line, taking them off.  Yes, it really depends on the client, what they need.

PN145      

I see there that you work on this day between 9 and 9.30, 10 and 11.30, 11 and 11.45, 1345 and 1515, and then 1530 to 1600.  Those shifts are broken by 30 minute to 15 minute intervals.  What are you doing in that time?‑‑‑That's our travel time to go to our next client.

PN146      

No further questions, your Honour.

PN147      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Minucci, any matters arising out of that or any additional cross-examination?

PN148      

MR MINUCCI:  Sorry, Deputy President, just one matter.

CROSS-EXAMINATION BY MR MINUCCI                                   [10.51 AM]

PN149      

Ms Smith, you're not a casual employee?‑‑‑No.

PN150      

And that roster that you've just taken the Commission through is your roster as a permanent part-time employee?‑‑‑Yes.

***        LEIGHANNE SMITH                                                                                                                  XXN MR MINUCCI

PN151      

And also finally in terms of your - if you have a look on your roster at Tuesday where there's a timesheet where (indistinct) is an identified half hour period.  Do you see that?‑‑‑Yes.

PN152      

You get paid for that period of time, don't you?‑‑‑Yes, we do.

PN153      

If the Commission pleases I have no further questions in cross-examination.

PN154      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, anything arising by way of re-examination?

PN155      

MR ROBSON:  One second.

RE-EXAMINATION BY MR ROBSON                                            [10.52 AM]

PN156      

You were asked by Mr Minucci about your roster and you said that it wasn't the roster of a casual employee.  What would a casual employee's roster look like?

PN157      

MR MINUCCI:  I object to that.

PN158      

MR ROBSON:  Withdraw.

PN159      

DEPUTY PRESIDENT CLANCY:  Anything further?

PN160      

MR ROBSON:  No, thank you, your Honour.

PN161      

DEPUTY PRESIDENT CLANCY:  Thank you.  Ms Smith, thank you very much for your evidence this morning and your attendance.  You're excused from further attendance, but if you would like to remain on the line as an observer to the balance of the hearing you're welcome to do so.  I would just ask that you turn off your camera and your microphone if you're doing that.  All right?‑‑‑Thank you.

PN162      

Thank you very much.

<THE WITNESS WITHDREW                                                          [10.53 AM]

***        LEIGHANNE SMITH                                                                                                                 RXN MR ROBSON

PN163      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, how do you want to deal with the balance of the statements, noting Mr Minucci has not required any of the final four witnesses for cross-examination?  Shall we just deal with them one after the hour?

PN164      

MR ROBSON:  Yes, I think that's right.  So I will take you first to the statement of Penelope Aston.  That is dated 18 February 2022.

PN165      

DEPUTY PRESIDENT CLANCY:  So that's at page 190 of the court book.  Yes, you seek to tender that.  Mr Minucci, any objection subject to those which you've flagged?

PN166      

MR MINUCCI:  No, Deputy President, and I can say that in respect of each of the balance of the statements left for tender.

PN167      

DEPUTY PRESIDENT CLANCY:  Okay.  Thank you.

EXHIBIT #ASU3 WITNESS STATEMENT OF PENELOPE ASTON DATED 18/02/2022 APPEARING IN THE COURT BOOK AT PAGE 190 WITH TWO ATTACHMENTS

PN168      

Thank you, Mr Robson.

PN169      

MR ROBSON:  Thank you.  I will then take you to the statement of Ms Brhe Walsh.  That's dated again 18 February 2022.  I tender that statement.

EXHIBIT #ASU4 WITNESS STATEMENT OF BRHE WALSH DATED 18/02/2022 WHICH IS IN THE COURT BOOK AT PAGE 45 AND THREE ANNEXURES

PN170      

DEPUTY PRESIDENT CLANCY:  Thank you.

PN171      

MR ROBSON:  Next I will take you to the witness statement of Patrick Gordon.  That has three annexures and is dated 18 February 2022, and I tender that statement.

PN172      

DEPUTY PRESIDENT CLANCY:  Can I just check, is it three or four annexures?  I've got annexures A to D.

PN173      

MR ROBSON:  No, I have missed that, your Honour, it is four annexures.

EXHIBIT #ASU5 WITNESS STATEMENT OF PATRICK GORDON DATED 18/02/2022 WHICH APPEARS IN THE COURT BOOK FROM PAGE 55 AND HAS FOUR ANNEXURES A TO D

PN174      

Then finally I will take you to the witness statement of Ms Kat Hardy.  That has three annexures, A, B and C, and that's dated - apologies, your Honour, that's actually got an annexure D as well.  So it's five annexures and that's dated 18 February 2022 as well.

EXHIBIT #ASU6 WITNESS STATEMENT OF KAT HARDY DATED 18/02/2022 WHICH COMMENCES IN THE COURT BOOK AT 83 WITH ANNEXURES A TO D RUNNING THROUGH TO PAGE 189

PN175      

DEPUTY PRESIDENT CLANCY:  Thank you.  Now, that is the balance of your evidentiary case, Mr Robson?

PN176      

MR ROBSON:  Yes, and with that we're finished with it, we've closed our evidentiary case.

PN177      

DEPUTY PRESIDENT CLANCY:  Thank you, Mr Robson.  While I've got you, Mr Robson, is there amongst the list of 13 witnesses for the council any witnesses not required for cross-examination?

PN178      

MR ROBSON:  No, at this stage we require all of the witnesses, but we should be brief.

PN179      

DEPUTY PRESIDENT CLANCY:  All right.  Thank you.  Now, Mr Minucci, you've indicated you don't require an opening.  What's your intentions in terms of the witness evidence, who is first?

PN180      

MR MINUCCI:  Thank you, Deputy President.  The respondents refer to and rely on the written outline filed for the purpose of the proceeding, and I don't propose to expand in opening any further.  The matters this morning have proceeded a little bit faster than I had hoped, or I had anticipated, better than I'd hoped and not anticipated, and I think Commissioner Bissett was just about to say that I think it's a good thing that we proceeded a little faster, and my apologies for the misuse of the words.

PN181      

In terms of our witness order we have the following witnesses available today and we propose to call them in this order.  We have Michele Stephenson available from 11.30, followed by Ms Sarah Lind who is available from 12.30.  We then go into Mr John Wynen who's available from 2 pm, and we would then propose to call Ms Melanie Bennett and Ms Sally Both to round out the afternoon and they're both available from 3 pm.  And if necessary we can make arrangements to have other witnesses available depending upon how fast my learned friend moves through his cross-examination.

PN182      

DEPUTY PRESIDENT CLANCY:  Yes.  I think you should proceed on the basis that at the Commission's end at least we will want to move through the evidence as efficiently as possible.  Given the way in which matters have unfolded this morning you might seek assistance from your instructors to start getting a few more people ready for their evidence.

PN183      

MR MINUCCI:  I'm grateful, Deputy President, and given that we have got our first witness available from 11.30 we propose to use that short adjournment if the Commission is minded to ensure that we have other persons available to give evidence today and this afternoon.

PN184      

DEPUTY PRESIDENT CLANCY:  Yes, all right.  For my part at least it would be aspiring for us to have a full dance card.  We will adjourn now until half past 11 and we will hear your first witness then.  Thank you very much, the Commission is adjourned until half past 11.

PN185      

MR MINUCCI:  If the Commission pleases.

SHORT ADJOURNMENT                                                                   [11.00 AM]

RESUMED                                                                                             [11.32 AM]

PN186      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Minucci, please.

PN187      

MR MINUCCI:  If the Commission pleases.  I call Ms Stephenson.

PN188      

DEPUTY PRESIDENT CLANCY:  Thank you.  Ms Stephenson, it's Deputy President Clancy here.  I'm sitting with my colleagues Commissioner Bissett and Commissioner O'Neill.  We're now going to take your evidence.  The first thing that will happen is my associate will take an affirmation from you.  Mr Minucci will then lead your evidence and then Mr Robson who is with the ASU will have some questions for you.  All right.  Thank you.

PN189      

THE ASSOCIATE:  Ms Stephenson, can you please state your full name and address.

PN190      

MS STEPHENSON:  Michele Pamela Stephenson, (address supplied).

<MICHELE PAMELA STEPHENSON, AFFIRMED                      [11.33 AM]

EXAMINATION-IN-CHIEF BY MR MINUCCI                              [11.33 AM]

***        MICHELE PAMELA STEPHENSON                                                                                            XN MR MINUCCI

PN191      

DEPUTY PRESIDENT CLANCY:  Thank you, Mr Minucci.

PN192      

MR MINUCCI:  If the Commission pleases.  Ms Stephenson, could I get you to state your full name again just for the purposes of the transcript, please?‑‑‑Michele Pamela Stephenson.

PN193      

Ms Stephenson, where do you work?‑‑‑Corangamite Shire Council.

PN194      

And what's your position at the council?‑‑‑I'm the manager of human resources and risk.

PN195      

Have you prepared a statement for the purposes of these proceedings?‑‑‑I have.

PN196      

Have you had the opportunity to review that statement?‑‑‑Yes.

PN197      

And are the contents of that statement true and correct to the best of your knowledge and belief?‑‑‑Yes, they are, apart from point 4, 'We now have eight casual personal care/home carers.'

PN198      

I'm grateful.  So with that change in paragraph 4, the change in the number 'five' to 'eight' are the contents of that statement true and correct to the best of your knowledge and belief?‑‑‑Yes.  Yes, they are.

PN199      

If the Commission pleases I tender that.

PN200      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, subject to the matters that you've raised by way of objection is there any objection to the reception of this statement?

PN201      

MR ROBSON:  No, but I do want to say something on our objections.  The third dot point, the sentence, 'This of course can be catastrophic to their welfare, the funding soon gets eaten up.'  And then the seventh dot point - the fourth dot point of the seventh paragraph, 'If we introduce it to our shift there are not many options left for frail aged people with a disability, there would be losers in all of this.'  We would like that to be struck out.  We think that's (indistinct) prejudicial to our case.  It's inadmissible and we want those not to be read.

***        MICHELE PAMELA STEPHENSON                                                                                            XN MR MINUCCI

PN202      

DEPUTY PRESIDENT CLANCY:  I will need to confer with my colleagues.  You might have flagged the nature of that objection earlier so that we could have dealt with it.  We just had a half hour break.

PN203      

MR ROBSON:  My apologies.

PN204      

MR MINUCCI:  And for the Commission's benefit in terms of the response to that if that is going to be the position that's ultimately taken, my submission in respect of Ms Stephenson is that she's entitled to give that evidence based on her knowledge of the organisation to council and the way in which these services are run and provided, and it is ultimately going to be a matter of weight as to what the Full Bench makes of that, amongst various other aspects of the evidence, and similar complaints can be made about the ASU's evidence, which have been, and dealt with in the way that the Commission has ordinarily contemplated dealing with objections of this kind.

PN205      

DEPUTY PRESIDENT CLANCY:  All right.  Thank you.  We will just adjourn briefly.  Thank you.

<THE WITNESS WITHDREW                                                          [11.36 AM]

SHORT ADJOURNMENT                                                                   [11.36 AM]

RESUMED                                                                                             [11.39 AM]

<MICHELE PAMELA STEPHENSON, RECALLED                     [11.39 AM]

EXAMINATION-IN-CHIEF BY MR MINUCCI, CONTINUING  [11.39 AM]

PN206      

DEPUTY PRESIDENT CLANCY:  Thank you.  The Full Bench has taken the opportunity to confer.  We consider that these statements will stand for what they stand for, but ultimately it's going to be a matter of weight that we afford them.  We anticipate, given the approach that's been adopted by the parties to date, they already have cast a keen eye over the witness statements, they will take us to the matters in those statements that they find objectionable in their final submissions, highlight the areas they wish to bring to our attention, and we will attach appropriate weight having heard further from the parties in closing submissions.  We will attach appropriate weight to all the evidence.  So at this stage the approach is not going to be to strike it out, but we note the objection.

PN207      

MR ROBSON:  May it please, your Honour.

***        MICHELE PAMELA STEPHENSON                                                                                            XN MR MINUCCI

PN208      

DEPUTY PRESIDENT CLANCY:  Subject to that approach I will mark the witness statement of Ms Stephenson at page 274 of the court book as exhibit R1.

EXHIBIT #R1 WITNESS STATEMENT OF MICHELE STEPHENSON AT PAGE 274 OF THE COURT BOOK

PN209      

MR MINUCCI:  If the Commission pleases I have no further questions for Ms Stephenson.

PN210      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, any questions in cross-examination?

PN211      

MR ROBSON:  Yes.  Thank you, your Honour.

CROSS-EXAMINATION BY MR ROBSON                                     [11.41 AM]

PN212      

Ms Stephenson, my name is Michael Robson, I'm an industrial officer with the Australian Services Union.  I'm going to ask you some questions today.  Firstly, you're the manager of human resources and risk of Corangamite Shire Council.  You've given evidence about personal and home carers who are casual employees of the council.  You don't work directly with those employees, do you?‑‑‑No, I don't, only some of the HR side of things.

PN213      

Yes.  The aged care or the home and community care department is separate to yours?‑‑‑That's right.

PN214      

And you're aware that the shire has an enterprise agreement?‑‑‑Yes.

PN215      

And you are aware that the shire can negotiate terms and conditions in that enterprise agreement that are different to the modern award?‑‑‑Yes.

PN216      

And this proceeding concerns a modern award, not your enterprise agreement?‑‑‑Yes.

PN217      

So going to the work of the home and community care workers in the statement when you speak about that work this is what someone has told you about that team?‑‑‑Yes, that's right.  The coordinator is on leave at the moment, but we spoke about it before she went on leave.

PN218      

You haven't provided rosters for this area of work?‑‑‑Not personally, no.

PN219      

No paysheets?‑‑‑What do you mean?

***        MICHELE PAMELA STEPHENSON                                                                                         XXN MR ROBSON

PN220      

Some record of what employees have worked?‑‑‑Well, I prepare reports from the pay system quite frequently.  I do know what they work.

PN221      

But they're not attached to this statement?‑‑‑No.

PN222      

And you haven't provided a budget for the council?‑‑‑No.

PN223      

You haven't provided a costing or anything that might assist - - -?‑‑‑No.

PN224      

- - - the Commission to understand how much the council spends on this area?‑‑‑No, I haven't, no.

PN225      

You haven't provided any material that would assist the Commission to understand the directions given to staff about the work that they should do when they're providing personal or home care?‑‑‑No.

PN226      

Now, when you say 'shift' in your statement what do you mean?‑‑‑So a shift is the rostered time, the day an employee is given to work with a client.

PN227      

Okay.  And is it true that the council only rosters casual employees for the exact time that they are to spend with a client?‑‑‑No, they may be there for 15 minutes, but we would roster them for half an hour.

PN228      

But if it was longer than that, longer than half an hour then it would be tailored to that period of work?‑‑‑Yes, it would.

PN229      

So the council already pays employees in some circumstances when they don't work the full minimum payment period?‑‑‑Sorry, what do you mean?

PN230      

You said that sometimes a person may work the 15 minutes, but they are paid for 30?‑‑‑That's right, we have rostered them for 30, but they may only be there for 15 minutes.

PN231      

Yes.  I took you to paragraph 7 of your statement, do you see that sentence that says, 'For the following reasons'?‑‑‑Yes.

***        MICHELE PAMELA STEPHENSON                                                                                         XXN MR ROBSON

PN232      

Are those your own words, that sentence with the heading, not the dot points?‑‑‑They're the words of the manager from that department.

PN233      

Just going through your statement, the dot points there, the final dot point that's something that was told to you by the manager for this area?‑‑‑That's right.  So an NDIS provider introduced a two hour shift and we picked up a very large number of shifts from that provider.

PN234      

But that's just something that you've been told by the manager, it's not something - - -?‑‑‑That's right.

PN235      

You don't know all the circumstances around that?‑‑‑I don't know personally, but the manager told me that that is the reason we picked them up.

PN236      

So you don't know if there were may be quality issues at that NDIS provider?‑‑‑No, the reason given was the two hours.

PN237      

The reason given to you by the manager?‑‑‑And the reason given to the manager was the two hours, that's why we picked some shifts up.

PN238      

And you haven't spoken to any of the NDIS participants who are provided their service?‑‑‑No.

PN239      

So again in the third dot point where you say, 'If each visit had to be paid at two hours then clients would not be able to afford it', that's something that's been told to you by someone else?‑‑‑Well, it's simple mathematics really.

PN240      

But you haven't - - -?‑‑‑If they're paying for half an hour they're paying for what a personal care visit, they're paying - - -

PN241      

But you're not familiar with how aged care funding works, are you?‑‑‑I'm aware of how the billing works to the clients, and it would be 4.7 per cent of their weekly income up to 19 per cent if we had to charge them two hours.

PN242      

Thank you very much, no further questions.

PN243      

DEPUTY PRESIDENT CLANCY:  Thank you.  Anything arising, Mr Minucci?

***        MICHELE PAMELA STEPHENSON                                                                                         XXN MR ROBSON

PN244      

MR MINUCCI:  If the Commission pleases I have no questions in re-examination and I ask the witness be released.

PN245      

DEPUTY PRESIDENT CLANCY:  Thank you.  Ms Stephenson, thank you for your evidence this morning, you're excused from further attendance.  You are welcome to remain online as an observer to the proceedings, but if you do so could I ask that you turn off your microphone and your camera?‑‑‑Thank you.

PN246      

Thank you.

<THE WITNESS WITHDREW                                                          [11.48 AM]

PN247      

MR MINUCCI:  If the Commission pleases the next witness will be Ms Sarah Lind and we're just having her dial in now.

PN248      

DEPUTY PRESIDENT CLANCY:  Thank you.  I note Ms Lind's witness statement is at page 290 of the court book.

PN249      

MR MINUCCI:  If the Commission pleases we have Ms Lind.

PN250      

DEPUTY PRESIDENT CLANCY:  Thank you.  Ms Lind, it's Deputy President Clancy.  Could you turn on your camera, please.  Thank you.  Good morning.  Ms Lind, I'm sitting with my colleagues Commissioner Bissett and Commissioner O'Neill.  We are now going to take your evidence.  What will happen first is my associate will take an affirmation from you, and Mr Minucci will lead your evidence and Mr Robson who is representing the ASU will have some questions for you.  All right.  Thank you.

PN251      

THE ASSOCIATE:  Ms Lind, can you please state your full name and address.

PN252      

MS LIND:  My full name is Sarah Jane Lind, (address supplied).

<SARAH JANE LIND, AFFIRMED                                                   [11.52 AM]

EXAMINATION-IN-CHIEF BY MR MINUCCI                              [11.52 AM]

PN253      

MR MINUCCI:  If the Commission pleases.

PN254      

DEPUTY PRESIDENT CLANCY:  Thank you.

***        SARAH JANE LIND                                                                                                                     XN MR MINUCCI

PN255      

MR MINUCCI:  Ms Lind, could I get you to restate your full name for the purposes of the transcript, please?‑‑‑Sarah Jane Lind.

PN256      

And where do you work?‑‑‑At the City of Greater Geelong in the community care department.

PN257      

And what's your role in the community care department?‑‑‑I am the coordinator of care services.

PN258      

Have you prepared a statement for the purposes of these proceedings?‑‑‑Yes, I have.

PN259      

Had you an opportunity to review that statement?‑‑‑Yes, I have.

PN260      

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

PN261      

If the Commission pleases I tender that.

PN262      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, any objection?

PN263      

MR ROBSON:  No objections, other than those - no, we didn't put any in.

PN264      

DEPUTY PRESIDENT CLANCY:  Yes, thank you.  Mr Minucci, anything further?

PN265      

MR MINUCCI:  No, thank you, Deputy President.

PN266      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, please.

PN267      

MR ROBSON:  Thank you, Deputy President.

PN268      

DEPUTY PRESIDENT CLANCY:  Sorry, I beg your pardon.

EXHIBIT #R2 WITNESS STATEMENT OF SARAH LIND

***        SARAH JANE LIND                                                                                                                     XN MR MINUCCI

PN269      

Thank you, Mr Robson.

CROSS-EXAMINATION BY MR ROBSON                                     [11.53 AM]

PN270      

MR ROBSON:  Ms Lind, my name is Michael Robson, I'm an industrial officer with the Australian Services Union.  I'm going to ask you some questions today.  So at paragraph 4 of your statement you say that 17 shifts in the past 12 months have been less than two hours in duration?‑‑‑Yes.

PN271      

That's not many shifts at all, is it?‑‑‑No.

PN272      

Are you aware that the City of Greater Geelong Council the workers there are covered by an enterprise agreement?‑‑‑Yes.

PN273      

And are you aware that an employer can negotiate terms and conditions in an enterprise agreement that are different to those found in a modern award?‑‑‑Yes.

PN274      

You do understand that this proceeding concerns a modern award, not your council's enterprise agreement?‑‑‑Yes.

PN275      

Thank you.  Can I take you to paragraph 5 of your statement?‑‑‑Yes.

PN276      

There it says, there's a sentence starting 'For the following reasons' and ending in 'shift'?‑‑‑Yes.

PN277      

Are those your words?‑‑‑Yes.

PN278      

There's a few witness statements that have those exact same words.  Did you get them from a template?‑‑‑No, they were words that I wrote in there.

PN279      

Okay.  Thank you, Ms Lind.  No further questions, your Honour.

PN280      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Minucci, anything arising?

PN281      

MR MINUCCI:  Nothing arising, Deputy President, and I ask the witness be released.

***        SARAH JANE LIND                                                                                                                   XXN MR ROBSON

PN282      

DEPUTY PRESIDENT CLANCY:  Thank you.  Ms Lind, thank you for your evidence.  You're excused from further attendance.  If you would like to remain online and observe you're welcome to do so, but if you do please turn off your microphone and camera?‑‑‑No worries.  Thank you.

PN283      

Thank you.

<THE WITNESS WITHDREW                                                          [11.55 AM]

PN284      

MR MINUCCI:  If the Commission pleases we have Mr Wynen logging in now.

PN285      

DEPUTY PRESIDENT CLANCY:  Thank you.

PN286      

MR MINUCCI:  It may just take him a couple of moments to get organised.

PN287      

DEPUTY PRESIDENT CLANCY:  That's all right.  His witness statement is at page 272 of the court book.

PN288      

MR MINUCCI:  If the Commission pleases Mr Wynen appears.

PN289      

DEPUTY PRESIDENT CLANCY:  Thank you.  Good morning, Mr Wynen, it's Deputy President Clancy.

PN290      

MR WYNEN:  Good morning.

PN291      

DEPUTY PRESIDENT CLANCY:  I'm sitting with my colleagues Commissioner Bissett and Commissioner O'Neill.  We are going to take your evidence now.  The first thing that will happen is my associate will take an affirmation from you.  Then Mr Minucci will lead your evidence and after that Mr Robson who is representing the ASU will have some questions for you.  All right.  Thank you.

PN292      

THE ASSOCIATE:  Mr Wynen, can you please state your full name and address.

PN293      

MR WYNEN:  John Andrew Wynen, (address supplied).

<JOHN ANDREW WYNEN, AFFIRMED                                         [12.00 PM]

EXAMINATION-IN-CHIEF BY MR MINUCCI                              [12.00 PM]

***        JOHN ANDREW WYNEN                                                                                                            XN MR MINUCCI

PN294      

DEPUTY PRESIDENT CLANCY:  Thank you, Mr Minucci.

PN295      

MR MINUCCI:  If the Commission pleases.  Mr Wynen, could I get you, please, to state your full name again for the purposes of the transcript?‑‑‑John Andrew Wynen.

PN296      

And where do you work?‑‑‑Bass Coast Shire Council.

PN297      

And what's your position at Bass Coast?‑‑‑I'm the manager of People and Culture.

PN298      

Have you prepared a witness statement for the purposes of these proceedings?‑‑‑Yes, I have.

PN299      

Have you had an opportunity to review that statement?‑‑‑Yes.

PN300      

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

PN301      

If the Commission pleases I tender that.

PN302      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, any objection?

PN303      

MR ROBSON:  None, your Honour.

EXHIBIT #R3 WITNESS STATEMENT OF JOHN WYNEN AT PAGE 272 OF THE COURT BOOK

PN304      

MR MINUCCI:  If the Commission pleases I have no further questions in-chief.

PN305      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, please.

PN306      

MR ROBSON:  Thank you, Deputy President.

CROSS-EXAMINATION BY MR ROBSON                                     [12.01 PM]

***        JOHN ANDREW WYNEN                                                                                                         XXN MR ROBSON

PN307      

Mr Wynen, my name is Michael Robson, I'm an industrial officer with the Australian Services Union.  I'm going to ask you some questions today.  You say in your statement that your responsibilities include enterprise bargaining?‑‑‑That's correct.

PN308      

So you're aware that an enterprise agreement, councils can negotiate terms and conditions that are different to the modern award?‑‑‑Yes, I am aware.

PN309      

And you're aware that these proceedings concern the modern award and not your council's enterprise agreement?‑‑‑Yes, I'm aware of that.

PN310      

Now, you've given evidence about customer visitor experience officers.  Do you work directly with those workers?‑‑‑No, I don't at the moment, but I have done in the past.

PN311      

So at the moment that's not in your department?‑‑‑That's correct.

PN312      

And so when you're talking about the situation at the moment that's what someone else has told you?‑‑‑And from our records of payment, yes.

PN313      

And you haven't included those records of payment with your statement?‑‑‑No, I haven't.

PN314      

And you haven't provided a budget for the area?‑‑‑No.

PN315      

And you haven't provided example rosters?‑‑‑No, I haven't.

PN316      

You haven't provided anything that would assist the Commission to understand the tasks that are being performed, like task lists for different visitor centres?‑‑‑No, I haven't provided that.

PN317      

No.  Now, I'd like to take you to paragraph 6 of your witness statement.  Do you see that sentence that starts with, 'For the following reasons' and finishes with 'shift'?‑‑‑Yes.

PN318      

Are those your words?‑‑‑Yes.

***        JOHN ANDREW WYNEN                                                                                                         XXN MR ROBSON

PN319      

So those words appear in their exact same form in a number of other witness statements filed by councils in these proceedings.  Did you get them from a template witness statement?‑‑‑Yes.

PN320      

Okay.  Then underneath do you see those two dot points?‑‑‑Yes.

PN321      

They're not written in full sentences, are they?‑‑‑No.

PN322      

So you just put some dot points under a heading in a template witness statement, and that's all the time you spent on preparing this statement?

PN323      

MR MINUCCI:  I object to that.  It's irrelevant.  Unless my learned friend is saying this witness is somehow being dishonest or is somehow misrepresenting the state of his evidence this doesn't take the matter anywhere and is irrelevant for the purposes of the Commission's task.  He's deposed, he's said that this is his evidence.  He's adopted it.  My friend can ask questions about it, but unless he's going to put the proposition that it's somehow improper or fraudulent this is not an appropriate line of questioning, in my submission.

PN324      

MR ROBSON:  Yes.  I withdraw that question.  Mr Wynen, you also give evidence about arts and culture, customer service casuals?‑‑‑Yes, I do.

PN325      

Do you work directly with those workers?‑‑‑Not directly, no.

PN326      

And you haven't worked with them in the past?‑‑‑No.

PN327      

No.  So when you give evidence about them that's simply something that someone's told you?‑‑‑Well, when I say I haven't worked directly with them I haven't managed them, but, you know, we're an organisation of 350 employees and I have worked with that, with our cultural centre where it's moved from a volunteer-based employment to employment for people, and so I'm aware that there have been times that we've had to employ people, engage them to usher people into events, it takes an hour.  So whilst I haven't directly worked with them, I can tell you that there are instances where you bump a crowd in, that's the only thing they do, takes an hour.  And we used to use volunteers for that, and now we use paid employees.

PN328      

But other than that, this statement is just things that you've been told by somebody else who manages that department?‑‑‑That's correct, yes.  We work together.

***        JOHN ANDREW WYNEN                                                                                                         XXN MR ROBSON

PN329      

And again you haven't provided rosters for that department?‑‑‑No, I haven't provided them.

PN330      

Or a summary of the payments to these workers?‑‑‑No, I haven't.

PN331      

You haven't provided a schedule of events?‑‑‑I haven't provided them, no, but I've seen some.

PN332      

But they're not in this statement, they're not here?‑‑‑No, they're not in the statement.

PN333      

All right.  Thank you very much, Mr Wynen.

PN334      

No further questions, your Honour.

PN335      

DEPUTY PRESIDENT CLANCY:  Thank you.  Anything arising, Mr Minucci?

PN336      

MR MINUCCI:  Yes, Deputy President, just briefly.

RE-EXAMINATION BY MR MINUCCI                                           [12.07 PM]

PN337      

MR MINUCCI:  Mr Wynen, you were asked some questions by my friend about the customer and visitor experience centres?‑‑‑Yes.

PN338      

And I think your evidence was that you didn't have direct supervision or a supervisory role in respect of those persons?‑‑‑That's correct.

PN339      

What role did you have in relation to those persons?‑‑‑So as the people and culture manager I help their direct manager recruit personnel to be able to operate the centres for the length of the shifts, making sure there's enough relievers available if there are people taking leave, or covering lunch shifts.  So I help with the recruitment of staff.

***        JOHN ANDREW WYNEN                                                                                                         RXN MR MINUCCI

PN340      

And so to the best of your knowledge, when you're recruiting those staff or when they're rostered to work, do you know how long they work for ordinarily?‑‑‑Yes.  We would endeavour to give them at least three hours' work.  That's what we would endeavour to do.  There would be instances where - and they're quite rare, and the last two years is a difficult period to assess because it has been such a different time, but I know that going back further than that there would have been time where we've had to engage someone for a lunch shift.  We have an office out at Grantville that's a one-person operation, so when that person has a lunch shift we will bump someone in for an hour to cover them, otherwise we would be closing the centre.

PN341      

You said 'closing the centre'.  To the best of your knowledge are there any other centres or sites in respect of council's operations that you would think about having to close if you were required to roster or pay persons for longer than, say, one hour?‑‑‑In customer services, no, that would be the only centre.

PN342      

Thank you very much, Mr Wynen.

PN343      

If the Commission pleases, I don't have any further questions in re‑examination, and I ask that the witness be released.

PN344      

DEPUTY PRESIDENT CLANCY:  Thank you.

PN345      

Mr Wynen, thank you for your attendance and your evidence.  You're excused from further attendance.  If you would like to remain on line as an observer you're welcome to do so, but I just ask that you turn off your camera and your microphone?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                           [12.09 PM]

PN346      

DEPUTY PRESIDENT CLANCY:  I note we have perhaps a further witness in the waiting room, Ms Bennett.

PN347      

MR MINUCCI:  Yes, Deputy President.

PN348      

DEPUTY PRESIDENT CLANCY:  Would you like to call Ms Bennett?

PN349      

MR MINUCCI:  I would, yes.  Thank you.

PN350      

DEPUTY PRESIDENT CLANCY:  Thank you.  If we could admit Ms Bennett, please.  Ms Bennett seems to have dropped out.  Can we get her back online, please.

PN351      

MR MINUCCI:  Yes, Deputy President, I will make those inquiries.

***        JOHN ANDREW WYNEN                                                                                                         RXN MR MINUCCI

PN352      

DEPUTY PRESIDENT CLANCY:  Good afternoon, Ms Bennett.  My name is Clancy DP, I'm sitting with my colleagues Bissett C and O'Neill C, and we're going to take your evidence.  The process will be that my associate will take an affirmation from you; then Mr Minucci will lead your evidence; and after that Mr Robson, who is representing the ASU, may have some questions for you.

PN353      

THE ASSOCIATE:  Ms Bennett, please state your full name and address.

PN354      

MS BENNETT:  Full name Melanie Judith Bennett, address (address supplied).

<MELANIE JUDITH BENNETT, AFFIRMED                                [12.12 PM]

EXAMINATION-IN-CHIEF BY MR MINUCCI                              [12.12 PM]

PN355      

MR MINUCCI:  Ms Bennett, could I get you to state your full name for the purposes of the transcript, please?‑‑‑Yes, of course.  My full name, Melanie Judith Bennett.

PN356      

Where do you work?‑‑‑Glenelg Shire Council.

PN357      

What's your position at the council?‑‑‑My substantive position is manager of local laws.  I'm currently in the acting director of community services currently.

PN358      

What does that role involve?‑‑‑The manager of local laws, so I manage a team of local laws rangers; oversee the operations of our pound facility; we also have our school crossing supervision, our school crossing staff within that unit as well.

PN359      

And what does your current acting role involve?‑‑‑Apologies.  My current acting role, which has only just commenced in the last week, but that involves oversight of the areas of the aged and disability services, arts and culture, libraries, as acting director, yes.

PN360      

Have you had an opportunity to prepare a statement for the purposes of these proceedings?‑‑‑Yes, I have, in the capacity of local laws manager.

PN361      

Yes.  And have you had an opportunity to review that statement?‑‑‑Yes.

PN362      

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

***        MELANIE JUDITH BENNETT                                                                                                      XN MR MINUCCI

PN363      

If the Commission pleases, I tender that.

PN364      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, subject to the objection that you've raised, are there any further objections to the reception of this statement?

PN365      

MR ROBSON:  No, your Honour.

PN366      

DEPUTY PRESIDENT CLANCY:  Thank you.  The witness statement of Melanie Bennett at pages 283 and 284 of the court book will be marked exhibit R4.  Thank you.

EXHIBIT #R4 WITNESS STATEMENT OF MELANIE BENNETT

PN367      

Mr Minucci, anything further?

PN368      

MR MINUCCI:  I don't have any further questions in chief.

PN369      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, please.

CROSS-EXAMINATION BY MR ROBSON                                     [12.14 PM]

PN370      

MR ROBSON:  Ms Bennett, my name is Michael Robson, I'm an industrial officer with the ASU.  I'm going to ask you some questions about your witness statement.  You're aware that the Glenelg Shire Council is covered by an enterprise agreement?‑‑‑Yes, I am.

PN371      

And are you aware that an enterprise agreement can include terms and conditions that are different to those found in a modern award?‑‑‑Yes.

PN372      

Thank you.  Just going through your witness statement, you're speaking about pound services?‑‑‑Yes.

PN373      

And there are no casuals employed yet?‑‑‑That is correct.

PN374      

And you don't explain in your statement what those casuals might do?‑‑‑In terms of operational detail and tasks, no, I do not.

***        MELANIE JUDITH BENNETT                                                                                                   XXN MR ROBSON

PN375      

And is it your evidence that if you did have a casual employee, it would only be for, like, one to two hours on a weekend, Saturday and Sunday?‑‑‑Yes.  And if I may expand on that, at the moment we've only just overtaken the pound services operations from the RSPCA in the last three months, so it is an operational test and see how things are going.  And at the moment it's actually more like in the afternoons, maybe a 30-minute shift that is required, based on the numbers of animals that we see in our regional facility.

PN376      

And so that would be the only work that would be given to a casual if you engaged them?‑‑‑As an animal attendant, yes.  So it would be feeding and cleaning duties.

PN377      

Thank you very much, Ms Bennett.  No further questions?‑‑‑Thank you.

PN378      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Minucci, any matters arising?

PN379      

MR MINUCCI:  If the Commission pleases, there's no matters arising.  I would ask that the witness be released.

PN380      

DEPUTY PRESIDENT CLANCY:  Thank you.  Ms Bennett, thank you for your attendance.  You're excused from further attendance.  You are welcome to stay online as an observer, but if you do so, could I ask that you please turn off your microphone and camera?‑‑‑Thank you very much.

<THE WITNESS WITHDREW                                                           [12.16 PM]

PN381      

DEPUTY PRESIDENT CLANCY:  Mr Minucci, how are things placed for further evidence?

PN382      

MR MINUCCI:  We have, Deputy President, Ms Both available, who we're hoping will be able to dial in shortly.  I will then, if the Commission is minded, ask for an early lunch break, so that we finish sort of 12.30-ish, given the speed at which matters have progressed this morning.  I then would use the lunch break - I have two remaining witnesses for the balance of the day, Ms Macleod and Ms Strano.  I would endeavour to have them come back earlier than I had anticipated.

***        MELANIE JUDITH BENNETT                                                                                                   XXN MR ROBSON

PN383      

And in the meantime I will also then see if I can obtain anybody else who I had anticipated calling tomorrow to come and give evidence for the balance of the afternoon, because at this stage we have five witnesses tomorrow.

PN384      

DEPUTY PRESIDENT CLANCY:  All right.  It would be good to get deeper into the witness list.  And without wanting to disturb the manner in which you want to present your case, would Mr Tozer be available today?

PN385      

MR MINUCCI:  I'm making those inquiries at the moment, Deputy President, as with the balance of the other witnesses.  I propose to use the luncheon adjournment to make those inquiries.

PN386      

DEPUTY PRESIDENT CLANCY:  All right.  We will just wait for Ms Both.

PN387      

MR MINUCCI:  My apologies.  For the Commission's benefit, we had anticipated Ms Both attending at 12.30.  We're just trying to have her dial in slightly earlier now.

PN388      

DEPUTY PRESIDENT CLANCY:  Thank you.

PN389      

Good afternoon, Ms Both.  Thank you for joining us at short notice.  My name is Clancy DP.  I'm sitting with my colleagues Bissett C and O'Neill C.  We're now going to receive your evidence.  Shortly my associate will take an affirmation from you; then Mr Minucci will lead your evidence; and after that Mr Robson, who is representing the ASU, will have some questions for you.

PN390      

THE ASSOCIATE:  Ms Both, please state your full name and address.

PN391      

MS BOTH:  Sally Both.  My home address is (address supplied).

<SALLY BOTH, AFFIRMED                                                              [12.29 PM]

EXAMINATION-IN-CHIEF BY MR MINUCCI                              [12.29 PM]

PN392      

MR MINUCCI:  Ms Both, could I get you to state your full name, please, for the purposes of the transcript?‑‑‑My name is Sally Both.

PN393      

Where do you work?‑‑‑Whitehorse Manningham Regional Library Corporation.

PN394      

What's your position at ‑ ‑ ‑ ?‑‑‑My role is chief executive officer.

PN395      

Have you prepared a statement for the purposes of these proceedings?‑‑‑I have.

***        SALLY BOTH                                                                                                                               XN MR MINUCCI

PN396      

Have you had the opportunity to review that statement?‑‑‑I have.

PN397      

Are the contents of that statement true and correct to the best of your knowledge and belief?‑‑‑Yes, it is.

PN398      

If the Commission pleases, I tender that.

PN399      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, subject to the objection raised, are there any further objections to the reception of that statement?

PN400      

MR ROBSON:  No, your Honour.

PN401      

DEPUTY PRESIDENT CLANCY:  I will mark the witness statement of Ms Sally Both at page 294 of the court book as exhibit R5.

EXHIBIT #R5 WITNESS STATEMENT OF SALLY BOTH

PN402      

Anything further, Mr Minucci?

PN403      

MR MINUCCI:  Nothing further in-chief, if the Commission pleases.

PN404      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, please.

CROSS-EXAMINATION BY MR ROBSON                                     [12.30 PM]

PN405      

MR ROBSON:  Ms Both, my name is Michael Robson, I'm an industrial officer with the Australian Services Union.  I'm going to ask you some questions about your witness statement.  At paragraph 6 of your statement one of the reasons that you give as to why it would not be practical or feasible and would have a detrimental impact if casuals were rostered for a minimum of two hours per shift, you say:

PN406      

health and safety - manual handling associated with a repetitive task.

***        SALLY BOTH                                                                                                                            XXN MR ROBSON

PN407      

Is this dangerous work?‑‑‑It's not dangerous work, but it is one task and it is picking up physical items, books primarily, and things like DVDs, and returning them to the library shelves, so there's limited variation to the task, so doing that over a continuous period of time obviously raises the likelihood of someone injuring their shoulder in particular, doing that task, or bending down, up and down.

PN408      

Have you conducted a risk assessment of this work?‑‑‑Yes, we do have what we call a safe operating procedure for reshelving, because it also does involve moving and straightening items; and we have actually in the past had an injury.

PN409      

And so you haven't provided that document with your statement?‑‑‑No, I'm sorry, I wasn't asked for that.

PN410      

Nothing to help the Commission understand why this task would be so dangerous someone couldn't do it for two hours ‑ ‑ ‑

PN411      

MR MINUCCI:  I object to that.

PN412      

THE WITNESS:  I'm happy to provide our safe operating procedure.

PN413      

MR MINUCCI:  Sorry.  If the Commission pleases, the mute button is being difficult.  I know the question has been asked and answered, which ‑ ‑ ‑

PN414      

DEPUTY PRESIDENT CLANCY:  What was the objection?

PN415      

MR MINUCCI:  The objection was to the intro to the question, if I can put it that way, about not assisting the Commission.  I've got no issue about the question being put that particular things aren't included, but prefacing it in that way in my submission is not necessarily accurate and doesn't quite capture the position appropriately.  That was the objection.  But I understand that it was asked and answered.

PN416      

DEPUTY PRESIDENT CLANCY:  Yes, all right.  Thank you.  Mr Robson.

PN417      

MR ROBSON:  So just following on, shouldn't this - like, if this work is so dangerous that someone couldn't do it for two hours, shouldn't it be given to a trained employee, or perhaps given to an employee where those tasks could be broken up over the course of their day?‑‑‑The reason we generally only have a shelver do a one-hour shift is to minimise the time that they do it, and they are trained in that task.

***        SALLY BOTH                                                                                                                            XXN MR ROBSON

PN418      

You haven't provided copies of rosters, have you?‑‑‑No, I have not provided a copy of the roster.

PN419      

And that question includes rosters for the other staff that you presumably have employed at the libraries?‑‑‑I'm sorry, I don't understand why you would need rosters for other staff.

PN420      

So you haven't provided it?‑‑‑No.

PN421      

And you haven't provided a budget for your organisation?‑‑‑No, I've not been asked to provide a budget.

PN422      

And you haven't provided any costings for a two-hour minimum engagement?‑‑‑The hourly rates of pay are available in our enterprise agreement.

PN423      

Yes, but you haven't worked that out before making this statement?‑‑‑Obviously we do know what those rates of pay are and what it would cost to employ a casual for one hour to do that task, but again I wasn't aware that I had to provide that information.

PN424      

Can I take you to paragraph 6 of your statement?‑‑‑Yes.

PN425      

There's the sentence there starting with 'for the following reasons' and finishing with 'her shift'?‑‑‑I'm sorry, I don't understand what the question is.

PN426      

I'm just referring you to that sentence.  I haven't asked you a question yet.  Okay.  So are those your words?‑‑‑Yes, they area.

PN427      

Words basically identical to that exist in a number of statements provided to the Commission.  Did you take this from a template statement that was provided ‑ ‑ ‑

PN428      

MR MINUCCI:  I object to that question.  There's no relevance.

PN429      

MR ROBSON:  It is relevant ‑ ‑ ‑

***        SALLY BOTH                                                                                                                            XXN MR ROBSON

PN430      

MR MINUCCI:  The witness has adopted it.  This line of questioning has been used repeatedly without any proposition of impropriety being put to any witness at all.  If he wants to put that proposition, he can put it; but otherwise this is a furphy, with the greatest of respect.

PN431      

MR ROBSON:  I've got follow-up questions here that will explain its relevance.

PN432      

DEPUTY PRESIDENT CLANCY:  Let's go to the follow-up questions, perhaps.

PN433      

MR ROBSON:  All right.

PN434      

You've got two casuals employed, Ms Both?‑‑‑Yes.

PN435      

This issue isn't particularly important to your organisation?‑‑‑If we had to employ them for a minimum of two hours it would potentially impact how we employ those people.

PN436      

But you said you didn't do calculations to work out what the costs would be.

PN437      

MR MINUCCI:  I object to that, it's not what she said.  She said she didn't include them in her statement.

PN438      

MR ROBSON:  Is there anything in your statement that would support what you've just said, Ms Both?‑‑‑There is insufficient tasks for someone to do for that period of time.  So as well as the OH and S concern ‑ ‑ ‑

PN439      

Which way is it ‑ ‑ ‑ ?‑‑‑  ‑ ‑ ‑ inability to provide sufficient tasks to fill two hours of time.

PN440      

You understand that this isn't a - which one is it:  is it that there's too much work to do for two hours to be safe; or is it that there's insufficient amounts of work?

PN441      

MR MINUCCI:  I object to that.  It's not what her evidence is, and it's not put as a binary in her statement.  Her statement is inclusive, and it says that these are the reasons, 1, 2 and 3.  It's unfair question.

PN442      

MR ROBSON:  They're contradictory statements, and there's nothing in the witness statement that would let us understand how we should read them together.  It's fair to put the question.  I'm going to make the submission that ‑ ‑ ‑

***        SALLY BOTH                                                                                                                            XXN MR ROBSON

PN443      

DEPUTY PRESIDENT CLANCY:  Well, perhaps rather than you and Mr Minucci arguing, perhaps the Members of the Bench would be assisted by Ms Both explaining her answer to question 6 and giving her account.  Thank you?‑‑‑Okay.  So the casual shelving role is employed solely to return physical items to the shelves.  At some of our smaller branches there would be insufficient task to take up two hours to do that role.  Where there is more task in doing - more items to be returned, we would not employ someone to do it for a continuous period more than two hours because of the safety issues.  In addition to that, this is a role that's often done by students, and they have limited availability, and no desire to do extended hours.  So there are a combination of reasons.  I hope that that answers the question.

PN444      

Thank you.  Mr Robson.

PN445      

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

PN446      

DEPUTY PRESIDENT CLANCY:  Bissett C, yes.

PN447      

COMMISSIONER BISSETT:  Just a question for you, Ms Both.  I see in your statement that you employ casual shelvers in the library.  Do you employ any other casual employees in the library?‑‑‑Yes, we do.  We employ casual customer service officers and casual librarians.

PN448      

You might not have this information at your fingertips, but do you know how many of those you employ?‑‑‑I'm sorry, I don't have that detail with me at the present.

PN449      

And is there a reason that casual shelvers' tasks, for example, aren't disbursed amongst the casual customer service staff or librarians, for example?‑‑‑Some of it is historical, that those roles have been used in the past, but from time to time our other library officers and librarians do do shelving.  But we're talking specifically about the casual shelver role.

PN450      

Yes, I understand that, it's just it seems a very specific, particular role - task.  It's a single task in the library, isn't it?‑‑‑It's often a task that is employed for, you know, a high school student or a tertiary student.

PN451      

Yes, okay.  Thank you for that.

***        SALLY BOTH                                                                                                                            XXN MR ROBSON

PN452      

Nothing else, thank you, Deputy President.

PN453      

DEPUTY PRESIDENT CLANCY:  Thank you.  Anything, O'Neill C?

PN454      

COMMISSIONER O'NEILL:  No, thank you.

PN455      

DEPUTY PRESIDENT CLANCY:  All right.  Mr Minucci, anything arising?

PN456      

MR MINUCCI:  Nothing arising, Deputy President.  I ask the witness be released.

PN457      

DEPUTY PRESIDENT CLANCY:  Thank you.

PN458      

Ms Both, thank you for your attendance today.  You're excused from further attendance.  If you would like to remain online you're welcome to do so, but if you do, I would ask that you keep your microphone and camera off?‑‑‑Thank you.

<THE WITNESS WITHDREW                                                           [12.43 PM]

PN459      

DEPUTY PRESIDENT CLANCY:  Mr Minucci, is that as far as we're going to get pre-lunch?

PN460      

MR MINUCCI:  It is, Deputy President.  And for the Commission's benefit, I anticipate having Ms Macleod and Ms Strano available from 2 pm.  We are in the process of determining whether Ms Johnson is available for today.  The balance of our witnesses are unavailable for today; for example Mr Tozer is currently on a plane travelling interstate, we have Ms Bourke, who has a medical appointment for her son, and we have other various commitments.

PN461      

But I am endeavouring to see, as best we can, to see if we can move any persons to this afternoon, and we will use our best endeavours to do that.  Otherwise it may be that we have an early mark, subject to the Commission's view today, and that would allow us to prepare closing submissions so that we will be in a position to address the Full Bench tomorrow afternoon.

PN462      

DEPUTY PRESIDENT CLANCY:  We will adjourn now until 2 pm.  The Commission will be obliged if as many witnesses as can be dealt with this afternoon are available.  We will talk about further programming then.  Thank you.  The Commission will now adjourn until 2 pm.

PN463      

MR MINUCCI:  If the Commission pleases.

***        SALLY BOTH                                                                                                                            XXN MR ROBSON

LUNCHEON ADJOURNMENT                                                          [12.45 PM]

RESUMED                                                                                                [2.00 PM]

PN464      

DEPUTY PRESIDENT CLANCY:  Mr Minucci, what's the program for this afternoon?

PN465      

MR MINUCCI:  If the Commission pleases, we've been able to - so firstly I'm grateful to my learned friend, who wrote to us during the luncheon adjournment and said that Ms Strano is no longer required for cross‑examination, so we will ask for her statement to be tendered in due course.  we then have Ms Tracey Macleod available to us; and we also have managed to procure Mr Tozer as well, who his arrangements were such that I thought he was on a plane, but he was not, so he's able to give evidence for us this afternoon from Noosa.

PN466      

The remaining witnesses we've been unable to get for the purposes of today, and we would be hopeful that they will be able to be concluded in the morning tomorrow.

PN467      

DEPUTY PRESIDENT CLANCY:  Let's be more than hopeful.

PN468      

MR MINUCCI:  Yes.

PN469      

DEPUTY PRESIDENT CLANCY:  That will leave five.  It's certainly the aspiration of the Bench that we not only hear the remaining evidence tomorrow, but also final oral submissions from the parties, and that we conclude by the end of tomorrow.  So we can take another check at the end of today, but our intention is that.

PN470      

And if the feeling of the parties is that in order to achieve that we ought to start at 9.30, for example, tomorrow, the Bench is prepared to do that.  So we will circle back on that at the end of the day, but our expectation and our aspiration is that we conclude by the end of tomorrow.  All right.  We will commence then now with Ms Macleod.  If Ms Macleod please could be admitted to the hearing room.

PN471      

Good afternoon, Ms Macleod.  It's Clancy DP.  The Commission is going to hear your evidence shortly.

PN472      

Just before we do that, Mr Minucci, you've indicated you wish to tender the statement of Ms Strano.

***        SALLY BOTH                                                                                                                            XXN MR ROBSON

PN473      

Mr Robson, in that regard is there any objection to the reception of that statement?

PN474      

MR ROBSON:  No, Deputy President.

PN475      

DEPUTY PRESIDENT CLANCY:  Thank you.  I will mark the witness statement of Susan Strano, which commences at page 288 of the court book, as exhibit R6.

EXHIBIT #R6 WITNESS STATEMENT OF SUSAN STRANO

PN476      

Ms Macleod, the first thing that will be happening is my associate will take an affirmation from you.  I am sitting with my colleagues, Bissett C and O'Neill C.  After the affirmation Mr Minucci will deal with your evidence-in-chief; and then Mr Robson, who is representing the ASU, will have some questions for you.  All right.

PN477      

THE ASSOCIATE:  Ms Macleod, please state your full name and address.

PN478      

MS MACLEOD:  Tracey Louise Macleod, (address supplied).

<TRACEY LOUISE MACLEOD, AFFIRMED                                   [2.04 PM]

EXAMINATION-IN-CHIEF BY MR MINUCCI                                [2.04 PM]

PN479      

MR MINUCCI:  Ms Macleod, could I get you please to state your full name for the purposes of the transcript?‑‑‑Tracey Louise Macleod.

PN480      

And where do you work?‑‑‑City of Greater Dandenong.

PN481      

What's your position with the City of Greater Dandenong?‑‑‑I'm currently the positive ageing team leader.

PN482      

And as part of your role as the positive ageing team leader, what are your responsibilities?‑‑‑So within the positive ageing team I manage myself and a support officer to support older seniors and their clubs within the community.  The other side of it is I manage community transport, and I have a support officer with that role as well, and manage a fleet of seven buses.

PN483      

Have you prepared a statement for the purposes of this proceeding?‑‑‑Yes, I have.

***        TRACEY LOUISE MACLEOD                                                                                                      XN MR MINUCCI

PN484      

Have you had the opportunity to review that statement?‑‑‑Yes, I have.

PN485      

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

PN486      

If the Commission pleases, I tender that.

PN487      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, any objection?

PN488      

MR ROBSON:  No, no objections.

PN489      

DEPUTY PRESIDENT CLANCY:  Thank you.  I will mark the witness statement of Ms Tracey Louise Macleod, appearing in the court book at page 285, as exhibit R7.

EXHIBIT #R7 WITNESS STATEMENT OF TRACEY MACLEOD

PN490      

MR MINUCCI:  If the Commission pleases, I have no further questions in-chief.

PN491      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, please.

CROSS-EXAMINATION BY MR ROBSON                                       [2.06 PM]

PN492      

MR ROBSON:  Ms Macleod, my name is Michael Robson.  I'm an industrial officer with the ASU.  I'm going to ask you some questions about your witness statement?‑‑‑Yes.

PN493      

Are you aware that the City of Greater Dandenong is covered by an enterprise agreement?‑‑‑Yes.

PN494      

And enterprise agreements, they can include terms and conditions that are different from the underlying modern award.  Is that correct?‑‑‑Yes.

PN495      

Looking at your witness statement, can I take you to paragraph 12?‑‑‑Mm-hm.

***        TRACEY LOUISE MACLEOD                                                                                                   XXN MR ROBSON

PN496      

There you say that it's not practical or feasible.  Would it be fair to say, rather, that you say it's not practical or feasible to engage and pay casuals for a minimum of two hours because the shifts that the casuals work, they add up to one and a half hours at a time.

PN497      

MR MINUCCI:  I object to that, that's not what her evidence says.  If she's going to be asked to agree with the proposition, then the whole of the evidence should be put to her.

PN498      

MR ROBSON:  You say:

PN499      

For the reasons stated above, many bus runs are 1.5 hours in length, and that includes 0.5 hours pre-run safety check and one hour bus run, and run at the same time, with the result that we could be paying two hours to a casual for 1.5 hours of work.  This means the council would be paying wages for times where no productive work was being performed.

PN500      

?‑‑‑Correct.

PN501      

Have you costed what the impact of a two-hour minimum engagement would be?‑‑‑I have.  Now, I've had a look at our current bus runs as well, and due to COVID, now some of them can be as short as 35 minutes.  So to pay - so we have clubs, seniors' clubs, we have shopping, we have library, all at a very similar time, so there will be many buses out on the road.  Due to COVID as well, we reduce our numbers on the buses to keep the community safe, which in turn is lessening the time that the drivers would be out on the road.  So what was once anything up to an hour and a half, including that 30-minute pre-start, can now be down - you do your 30-minute pre-start, and then any runs after that is the time, so it can be as little as 35 minutes now.

PN502      

Okay.  And you haven't done a costing, though, if those services that are provided by casuals, you had to pay them a two-hour minimum engagement?‑‑‑I wouldn't have work for them for two hours.  Because these runs are very similar in timing, we cannot expect a bus and a driver to be in two places at once.  And we run multiple buses so the drivers are not stressed and not speeding to get clients onboard, and then speeding to the next run, as such.  That's why they're all similar times, multiple buses.

PN503      

Yes.  But just aside from the issue of what work is available, if you were paying people for the two hours, have you looked at the impact of that on your organisation?‑‑‑No, I haven't previously, no.

***        TRACEY LOUISE MACLEOD                                                                                                   XXN MR ROBSON

PN504      

No.  And you only engage one casual at the moment?‑‑‑We were engaging one casual, yes, but we do not have any currently.

PN505      

Thank you, Ms Macleod.  No further questions.

PN506      

DEPUTY PRESIDENT CLANCY:  Thank you.  Anything arising, Mr Minucci?

PN507      

MR MINUCCI:  No questions in re‑examination, Deputy President.  I ask the witness be released.

PN508      

DEPUTY PRESIDENT CLANCY:  Thank you.

PN509      

Ms Macleod, thank you for your attendance and your evidence.  You're excused.  You are welcome to remain online to observe, but if you do so, I just ask that you turn off your microphone and camera.  Thank you?‑‑‑No problem.  Thank you so much.  Bye bye.

<THE WITNESS WITHDREW                                                             [2.11 PM]

PN510      

DEPUTY PRESIDENT CLANCY:  Are we then ready for Mr Tozer?

PN511      

MR MINUCCI:  Yes, Deputy President.  I anticipate him to be logging on now or just before 2.15.

PN512      

DEPUTY PRESIDENT CLANCY:  Here he is now.

PN513      

Good afternoon, Mr Tozer.  It's Clancy DP here.  I'm sitting in this case with my colleagues Bissett C and O'Neill C.  We're now going to take your evidence.  My associate will take an affirmation, then Mr Minucci will deal with your evidence-in-chief; and Mr Robson, who is representing the ASU, will then undertake cross‑examination.

PN514      

THE ASSOCIATE:  Mr Tozer, please state your full name and address.

PN515      

MR TOZER:  David Hewett Tozer, (address supplied).

<DAVID HEWETT TOZER, AFFIRMED                                           [2.12 PM]

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

***        DAVID HEWETT TOZER                                                                                                             XN MR MINUCCI

PN516      

MR MINUCCI:  Mr Tozer, could I please get you to state your full name for the purposes of the transcript?‑‑‑David Hewett Tozer.

PN517      

Where do you work?‑‑‑I'm a workplace relations advisor for Meerkin and Apel Lawyers.

PN518      

How long have you worked as a workplace relations advisor?‑‑‑Just gone 10 years.

PN519      

As part of your role have you had experience with local government?‑‑‑In my role I liaise on a daily basis with 76 of the 79 councils, and all but one of the regional library corporations.

PN520      

Has that been the case for the majority of your career as a workplace relations advisor?‑‑‑For the entirety.

PN521      

Have you prepared a statement for the purposes of this proceeding?‑‑‑Yes, I have.

PN522      

Have you had an opportunity to review that statement?‑‑‑Yes, I have.

PN523      

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

PN524      

If the Commission pleases, I tender that.

PN525      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, subject to - in addition to any of the objections that you've previously raised, is there any objection to the tendering of the statement of Mr Tozer?

PN526      

MR ROBSON:  No, your Honour.

PN527      

DEPUTY PRESIDENT CLANCY:  Thank you.  I will mark the witness statement of David Hewett Tozer, which commences at page 267 of the court book, as exhibit R8.

EXHIBIT #R8 WITNESS STATEMENT OF DAVID TOZER

PN528      

Thank you, Mr Minucci.  Anything further?

***        DAVID HEWETT TOZER                                                                                                             XN MR MINUCCI

PN529      

MR MINUCCI:  If the Commission pleases, I have no further questions in-chief.

PN530      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Robson, please.

CROSS-EXAMINATION BY MR ROBSON                                       [2.14 PM]

PN531      

MR ROBSON:  Mr Tozer, my name is Michael Robson.  I'm an industrial officer with the Australian Services Union.  I'm going to ask you some questions today about your witness statement.  Paragraph 2, you say you hold a Diploma in Human Resources from South West TAFE.  Is that the only qualification you hold that's relevant to these proceedings?‑‑‑Yes, it is.

PN532      

So we can take it from that that you don't hold any type of degree or qualification with some focus on the local government sector?‑‑‑That is correct.

PN533      

Thank you.  You work for Meerkin and Apel.  That's a law firm, yes?‑‑‑Yes, it is.

PN534      

And you work for the local government.  Like, you work for the local government that you've mentioned, and that's on a commercial arrangement, isn't it?‑‑‑Yes, it is.

PN535      

Yes.  Meerkin and Apel is not an industry association, not a peak body?‑‑‑That's correct.

PN536      

And is one of the services that you provide for the local councils and the library corporations advocacy?‑‑‑Yes.  That is on a - yes, that is part of the raft of services we provide.

PN537      

Do you see this statement that you've prepared as part of that, the services you provide for local councils?‑‑‑The statement that I've made represents my views about the impacts of the ASU's application in relation to a two-hour minimum for casuals.

PN538      

I put it to you that this witness statement you prepared is designed to advocate on behalf of the councils?‑‑‑I really don't know where the line between advocacy and submission of a witness statement lies. I don't know the question that you're posing.

***        DAVID HEWETT TOZER                                                                                                          XXN MR ROBSON

PN539      

Thank you, that's all I intended to ask you about that.  You haven't worked in local government for a decade?‑‑‑That's correct.

PN540      

So when you relate the experience of a particular council, that's either something that you've been told, or it's a hypothetical that you've produced?‑‑‑It's based on my experience of 12 years of actually working within local government, several of them; and in relation to the interactions that I have on a daily basis right through until today.

PN541      

But that 12 years was more than a decade ago?‑‑‑But to that extent, many of the services, albeit peripherally changed, are typically the same.

PN542      

At several points in your statement you give examples of what may happen at various local councils.  Can I take you to paragraph 16?‑‑‑Yes.

PN543      

These are all hypothetical examples, aren't they?‑‑‑These are all examples of conversations that I've had with the industry about the impacts of longer minimum engagement.

PN544      

But you haven't told us what council this would be or when this occurred?‑‑‑No.

PN545      

At paragraph 17 you say:

PN546      

In any of the above examples casual employees would often live nearby and sometimes fill multiple roles.  Being casual, they can choose what job suits them, and they may prefer to remain casual.

PN547      

?‑‑‑Yes.

PN548      

That's just your speculation about why a person may choose to be a casual?‑‑‑I can't go into the mind of each individual casual, but through experience there's routinely - particularly in the small regional councils where there are employees that prefer shorter shifts, so in my interactions with councils that's something that's discussed on a regular basis.

PN549      

But that's something that someone has told you from something someone has told them?‑‑‑Yes.

PN550      

And that may not be the whole story?‑‑‑No, it may not.

***        DAVID HEWETT TOZER                                                                                                          XXN MR ROBSON

PN551      

And so at paragraph 18, that's also a speculation about what may happen?‑‑‑Yes, it is a speculation as to the impacts of a longer minimum engagement for casuals, yes.

PN552      

At 19, that's also speculative?‑‑‑Yes.  Yes, it is, but I think it's a relatively logical speculation.

PN553      

But you're not a decision-maker in any business unit of any council?‑‑‑No, but I can relate real-time situations that show these real life scenarios playing out.

PN554      

And then at paragraph 20, there you're talking about paper boys, and there in the final sentence you say, 'The newspaper' - first question:  you don't have any particular special knowledge of the newspaper industry?‑‑‑I was a paper boy.

PN555      

Yes, many years ago?‑‑‑Many, many.

PN556      

And you say there that the employment - and I will read the sentence to you:

PN557      

Newspaper outlets predominantly ended employment of paper boys and replaced them with motor vehicle-delivered papers.

PN558      

?‑‑‑Yes, much to my discontent.

PN559      

Many years ago?‑‑‑No, my discontent continuous to this day because I see that as a terribly detrimental outcome of minimum engagements, that there are no longer paper boys and girls delivering papers.

PN560      

But you don't have some sort of expertise in the newspaper industry to say why that change occurred?‑‑‑It happened at the time the minimum engagements were introduced.

PN561      

And I would suggest to you that the delivery of newspapers by an adult employee driving a motor vehicle is simply a more efficient work practice than the use of paper boys?‑‑‑I would disagree.

PN562      

Might that not be the reason that there has been a change?‑‑‑I disagree.  I would say that the delivery of papers through paper boys and girls was a far more cost-effective approach.

***        DAVID HEWETT TOZER                                                                                                          XXN MR ROBSON

PN563      

I'm going to take you to paragraph 10 of your statement.  Would you read that for me.  Don't need to read it out, I just want to make sure that you're aware of what I'm asking you about?‑‑‑Yes.

PN564      

That first sentence, 'The Victorian Local authorities Award 2001' - and there in the parentheses you've said VLAA 2001 -

PN565      

is the basis for most of the content of all Victorian local government enterprise agreements, with additional benefits that have been individually negotiated.

PN566      

?‑‑‑Yes.

PN567      

So is your evidence that most, if not all local governments have negotiated enterprise agreements?‑‑‑The 79 councils across Victoria, they all do, yes.

PN568      

And those enterprise agreements, they include terms and conditions that are different from the Victorian Local Government Award 2015?‑‑‑Yes.

PN569      

They in fact - would many of them have quite different conditions?‑‑‑To the modern award?

PN570      

Yes?‑‑‑Yes, quite different, yes.

PN571      

So it's entirely possible that presented with a minimum engagement period of two hours for casuals, councils would simply try to negotiate an enterprise agreement that addressed the needs that weren't being met by that minimum engagement?‑‑‑I'm sorry, I don't understand the question.

PN572      

Could local government negotiate enterprise agreements with shorter minimum engagements for casual employees if that's what they needed?‑‑‑Not to the extent that it would leave the casual not better off overall.

PN573      

But they can negotiate terms and - yes, thank you.  I'm going to take you to paragraph 13 of your statement.  Again you don't explain how this variation would impact those occupations referred to in that statement?‑‑‑Shall I explain?  Are you asking me to explain?

***        DAVID HEWETT TOZER                                                                                                          XXN MR ROBSON

PN574      

No, I'm just asking that you haven't included that in your statement?‑‑‑No, but I understand that it has been included in statements of others.

PN575      

And at paragraph 12 are you aware that - you say that a handful of councils, for example the City of Wodonga, have already chosen to withdraw from the service entirely.  Are you aware that some councils are expanding this service as well?‑‑‑I'm aware that Banyule, Bass Coast, Campaspe, Horsham, Indigo, Maribyrnong, Surf Coast, Hobsons Bay, Mornington Peninsula and Wodonga have withdrawn, and that City of Casey, Golden Plains, Hepburn, Latrobe, Mansfield, Moorabool, Southern Grampians, Benalla and Boroondara are currently in the process of withdrawing.  I am aware that Bayside City Council is contemplating the prospect of a beneficial enterprise to participate in the market, but that is the only council that I'm aware of going down that path.

PN576      

Thank you, Mr Tozer.  No further questions.

PN577      

DEPUTY PRESIDENT CLANCY:  Thank you.  I will just ask Bissett C or O'Neill C, do you have any questions of Mr Tozer?

PN578      

COMMISSIONER BISSETT:  No thank you, Deputy President.

PN579      

COMMISSIONER O'NEILL:  Just one from me, Mr Tozer.  You've given evidence that the model of in-home care service delivery in Victoria is different to the other states and territories, and you've given some examples about reduced service in councils in other states and territories, and you say in some the council has vacated the field entirely.  I'm just trying to be clear, is it the case that there are some councils in other states and territories that do continue to provide these services?‑‑‑Commissioner, there are some councils in some states that provide limited services that we would regard as home and community care, as in the global concept.  My understanding is that Victoria has been for a number of years the only jurisdiction, if you like, in which councils are the predominant provider.  The higher levels of government are moving towards a model that would allow for privatisation in Victoria, which would more align Victoria with those other states.

PN580      

So what you're saying is that yes, in some states and territories services are provided, but none to the extent across the board in Victoria.  Is that ‑ ‑ ‑ ?‑‑‑Correct.  And none of those other states have come from a place where local government was the only provider.

PN581      

Thank you.

***        DAVID HEWETT TOZER                                                                                                          XXN MR ROBSON

PN582      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Minucci, anything arising from cross‑examination or those questions?

PN583      

MR MINUCCI:  Two brief matters, Deputy President.

RE-EXAMINATION BY MR MINUCCI                                             [2.29 PM]

PN584      

MR MINUCCI:  Mr Tozer, you were asked some questions in cross‑examination about paragraph 13 of your statement, and you asked my learned friend whether he would like you to elaborate on the matters canvassed in that paragraph, and he said no.  Could you please elaborate in respect of the matters that you wish to further raise in respect of your evidence in paragraph 13?‑‑‑Thank you, yes.  There are many roles within local government for which casual employment is used, often for backfill purposes in which the task cannot be rostered for longer than an hour, sometimes even less:  for home care showers; for welfare checks; for community drivers where the task is purely to take clients from home to shopping or home to planned activity groups and then back again, for which there isn't an ability to create the additional work that would warrant the two-hour minimum engagement, and that is particularly the case in the rural and regional areas where the scale of the service just does not allow for those longer shifts, such that in my opinion if the minimum engagement was increased to two hours it would be a contributing factor in some cases to those services no longer being provided in-house.  I look at the Swan Hill Pioneer Settlement as an example of a well known iconic service that is on the precipice of financial sustainability.  You only have to look at the social media around that service to understand that the community is torn apart, one half believing it's iconic and must stay, and the other half believing that it's costing the community too much to keep the doors open.  Additional costs such as two-hour minimum engagement for casuals at that location may well contribute to the doors closing.  And that scenario is playing out across a number of rural and regional councils as far as how close to the wall many services are.

PN585      

When you say 'costs to the community', what do you mean by that in terms of - sorry, I withdraw that.  When you say 'costs to the community', what do you mean by that?  Are the community members paying for it?‑‑‑Those services, whether it be home care, whether it be planned activity groups, whether it be the pioneer settlement, are funded in part by other levels of government, but also in part by the particular council, to the extent that the ratepayers believe that there's a certain amount that they're willing to endure as a cost for the delivery of the service to the community.

***        DAVID HEWETT TOZER                                                                                                          RXN MR MINUCCI

PN586      

Now if I could take you to paragraph 16 of your statement.  You were asked some questions in cross‑examination about paragraph 16, and in answer to one of my friend's questions you said that you were able to provide more - or words to the effect that you were able to provide more information about what councils and when you had divined the information canvassed in the dot points in paragraph 16.  Do you recall giving that answer?‑‑‑Yes, I do.

PN587      

Could you please tell the Commission or provide the Commission with further details about which councils these examples relate to, and when you obtained this information, as well as anything further that you would like to add?‑‑‑Mr Minucci, I may have covered off on that somewhat in my previous statement.  But certainly in speaking with clients in relation to the town hall operation in Swan Hill about the difficulty that they would have in covering lunchtime shifts for that service.  The town operations in a number of rural councils just don't have the facility to provide two hours work for casuals when they're called in at short notice.  And I would make the point that the local government as an industry, where there is an ability to roster to allow for longer shifts, there has been a willingness to agree to longer minimum engagements and enterprise bargaining such that there is no need for an award provision.  But there are some rural council that just are not able to accommodate those longer minimum engagements because of the nature of the service.

PN588      

And what councils would they be, to the best of your knowledge at this moment in time?‑‑‑Well, the councils that are more likely to have agreed to longer minimum engagements in the enterprise agreement are those metro and metro fringe councils.  So I guess I don't needs to go through those municipalities that are within those boundaries, but if we're talking about those councils that are on the brink of economic sustainability, we're talking about Yarriambiack, we're talking about Buloke, Gannawarra, Mount Alexander, Central Goldfields are councils that have a very small ratepayer base and therefore client base, which makes it more difficult to accommodate longer rostered periods.

PN589      

You were also - finally just finishing off my re‑examination, Mr Tozer, you were asked some questions about you being an advocate for the council.  Do you recall that evidence?‑‑‑Yes, I do.

PN590      

And whether or not that influenced the evidence that you gave for the purposes of this proceeding.  Is your evidence untruthful?‑‑‑No.

PN591      

Are you giving exaggerated or embellished evidence in order to advance the cause of any local council in this proceeding?‑‑‑No, I am not.

PN592      

And do you honestly adopt and - I withdraw that.  And is the balance of your evidence truthful to the best of your knowledge and belief?‑‑‑Yes, it is.

PN593      

If the Commission pleases, I have no further questions in re‑examination.

***        DAVID HEWETT TOZER                                                                                                          RXN MR MINUCCI

PN594      

DEPUTY PRESIDENT CLANCY:  Thank you.  Thank you, Mr Tozer, for your evidence.  You're excused from further attendance.  If you would like to remain as an observer, you're welcome to do so, but I just ask that you turn off your camera and your microphone.  Thank you?‑‑‑Thank you, Deputy President.

<THE WITNESS WITHDREW                                                             [2.36 PM]

PN595      

DEPUTY PRESIDENT CLANCY:  Thank you.  Mr Minucci, does that reach the end of your list for today?  Sorry, you're on mute, I think.

PN596      

MR MINUCCI:  Sorry, Deputy President.  Yes, it does.

PN597      

DEPUTY PRESIDENT CLANCY:  So that then would leave for tomorrow, in no particular order, Ms Scott, Ms Bourke, Ms Bridgewater, Ms Johnson and Ms Hunt.  Is that right?

PN598      

MR MINUCCI:  Yes.

PN599      

DEPUTY PRESIDENT CLANCY:  Just looking at those particular witness statements, they all go no more than two pages.  Mr Robson, from your perspective in terms of cross‑examination are you confident that with a 10 o'clock start we would be able to proceed through the balance of the evidence and then move to final oral submissions, which would then conclude within the day tomorrow?

PN600      

MR ROBSON:  Absolutely, Deputy President.

PN601      

DEPUTY PRESIDENT CLANCY:  So in final oral closing submissions at this stage, your best estimate, how long would you need?

PN602      

MR ROBSON:  I think I would need somewhere between 30 minutes and an hour, and an hour would be an absolute outside range.

PN603      

DEPUTY PRESIDENT CLANCY:  All right.  And Mr Minucci?

PN604      

MR MINUCCI:  I concur with that assessment, Deputy President.

PN605      

DEPUTY PRESIDENT CLANCY:  All right.  On that basis I think we can commence at 10 am.  The expectation of the Bench is that at the conclusion of the evidence the parties move straight into final oral submissions, subject to any short break at that particular point, depending on where we are in the course of the day.  But if there's nothing further for today, the Commission will adjourn.

PN606      

I will just check with my colleagues, Bissett C or O'Neill C, anything?

PN607      

COMMISSIONER BISSETT:  No, thank you, Deputy President.

PN608      

COMMISSIONER O'NEILL:  No, thanks.

PN609      

DEPUTY PRESIDENT CLANCY:  Thank you.  All right.  There being nothing further for today, the Commission will adjourn, and resume at 10 am tomorrow morning.

PN610      

MR ROBSON:  If the Commission pleases.

PN611      

MR MINUCCI:  Commission pleases.

ADJOURNED UNTIL TUESDAY, 12 APRIL 2022                            [2.39 PM]


LIST OF WITNESSES, EXHIBITS AND MFIs

 

SEBASTIAN HERRERA, AFFIRMED................................................................ PN48

EXAMINATION-IN-CHIEF BY MR ROBSON.................................................. PN48

CROSS-EXAMINATION BY MR MINUCCI..................................................... PN72

EXHIBIT #ASU1 WITNESS STATEMENT OF SEBASTIAN HERRERA APPEARING IN THE COURT BOOK AT PAGES 70 TO 82 INCLUDING TWO ATTACHMENTS PN75

THE WITNESS WITHDREW............................................................................. PN114

LEIGHANNE SMITH, AFFIRMED................................................................... PN119

EXAMINATION-IN-CHIEF BY MR ROBSON................................................ PN119

EXHIBIT #ASU2 WITNESS STATEMENT OF LEIGHANNE SMITH DATED 15/02/2022 WITH 76 PARAGRAPHS AND ANNEXURES A TO H.................................. PN129

CROSS-EXAMINATION BY MR MINUCCI................................................... PN148

RE-EXAMINATION BY MR ROBSON............................................................. PN155

THE WITNESS WITHDREW............................................................................. PN162

EXHIBIT #ASU3 WITNESS STATEMENT OF PENELOPE ASTON DATED 18/02/2022 APPEARING IN THE COURT BOOK AT PAGE 190 WITH TWO ATTACHMENTS       PN167

EXHIBIT #ASU4 WITNESS STATEMENT OF BRHE WALSH DATED 18/02/2022 WHICH IS IN THE COURT BOOK AT PAGE 45 AND THREE ANNEXURES............. PN169

EXHIBIT #ASU5 WITNESS STATEMENT OF PATRICK GORDON DATED 18/02/2022 WHICH APPEARS IN THE COURT BOOK FROM PAGE 55 AND HAS FOUR ANNEXURES A TO D.................................................................................................................... PN173

EXHIBIT #ASU6 WITNESS STATEMENT OF KAT HARDY DATED 18/02/2022 WHICH COMMENCES IN THE COURT BOOK AT 83 WITH ANNEXURES A TO D RUNNING THROUGH TO PAGE 189................................................................................... PN174

MICHELE PAMELA STEPHENSON, AFFIRMED........................................ PN190

EXAMINATION-IN-CHIEF BY MR MINUCCI.............................................. PN190

THE WITNESS WITHDREW............................................................................. PN205

MICHELE PAMELA STEPHENSON, RECALLED........................................ PN205

EXAMINATION-IN-CHIEF BY MR MINUCCI, CONTINUING.................. PN205

EXHIBIT #R1 WITNESS STATEMENT OF MICHELE STEPHENSON AT PAGE 274 OF THE COURT BOOK...................................................................................................... PN208

CROSS-EXAMINATION BY MR ROBSON..................................................... PN211

THE WITNESS WITHDREW............................................................................. PN246

SARAH JANE LIND, AFFIRMED..................................................................... PN252

EXAMINATION-IN-CHIEF BY MR MINUCCI.............................................. PN252

EXHIBIT #R2 WITNESS STATEMENT OF SARAH LIND.......................... PN268

CROSS-EXAMINATION BY MR ROBSON..................................................... PN269

THE WITNESS WITHDREW............................................................................. PN283

JOHN ANDREW WYNEN, AFFIRMED........................................................... PN293

EXAMINATION-IN-CHIEF BY MR MINUCCI.............................................. PN293

EXHIBIT #R3 WITNESS STATEMENT OF JOHN WYNEN AT PAGE 272 OF THE COURT BOOK..................................................................................................................... PN303

CROSS-EXAMINATION BY MR ROBSON..................................................... PN306

RE-EXAMINATION BY MR MINUCCI........................................................... PN336

THE WITNESS WITHDREW............................................................................. PN345

MELANIE JUDITH BENNETT, AFFIRMED................................................... PN354

EXAMINATION-IN-CHIEF BY MR MINUCCI.............................................. PN354

EXHIBIT #R4 WITNESS STATEMENT OF MELANIE BENNETT............ PN366

CROSS-EXAMINATION BY MR ROBSON..................................................... PN369

THE WITNESS WITHDREW............................................................................. PN380

SALLY BOTH, AFFIRMED................................................................................ PN391

EXAMINATION-IN-CHIEF BY MR MINUCCI.............................................. PN391

EXHIBIT #R5 WITNESS STATEMENT OF SALLY BOTH.......................... PN401

CROSS-EXAMINATION BY MR ROBSON..................................................... PN404

THE WITNESS WITHDREW............................................................................. PN458

EXHIBIT #R6 WITNESS STATEMENT OF SUSAN STRANO..................... PN475

TRACEY LOUISE MACLEOD, AFFIRMED................................................... PN478

EXAMINATION-IN-CHIEF BY MR MINUCCI.............................................. PN478

EXHIBIT #R7 WITNESS STATEMENT OF TRACEY MACLEOD............. PN489

CROSS-EXAMINATION BY MR ROBSON..................................................... PN491

THE WITNESS WITHDREW............................................................................. PN509

DAVID HEWETT TOZER, AFFIRMED........................................................... PN515

EXAMINATION-IN-CHIEF BY MR MINUCCI.............................................. PN515

EXHIBIT #R8 WITNESS STATEMENT OF DAVID TOZER....................... PN527

CROSS-EXAMINATION BY MR ROBSON..................................................... PN530

RE-EXAMINATION BY MR MINUCCI........................................................... PN583

THE WITNESS WITHDREW............................................................................. PN594