PN1

THE COMMISSIONER: Good morning, parties. I'm sorry for the delay. We've had some IT issues here in Sydney this morning but I think we're all on line now. Mr Terzic, you're acting for the applicant in the matter?

PN2

MR TERZIC: Yes, I am, Commissioner, and the applicant is in frame, sitting beside me, Mr Pantalleresco.

PN3

THE COMMISSIONER: I can see him there.

PN4

MR TERZIC: Yes. He will be a witness in proceedings and he will also be beside me to give me instructions throughout.

PN5

THE COMMISSIONER: All right, very good. Mr Amendola, I can see you, as well. You're given the prize of being on mute, first.

PN6

MR AMENDOLA: Yes. Yes, Commissioner, I'm here representing the respondent. You will see Mr Roma in view and he will be instructing me. And I think also in view is Mr Mateo Sanchez, who is one of the witnesses in the proceeding.

PN7

THE COMMISSIONER: Should I make the usual orders for witnesses to be out of the room until they are called?

PN8

MR AMENDOLA: Commissioner, I did mention to my friend that it wasn't my intention to cross-examine Mr Pantalleresco, so unless he is going to lead further evidence from him, it may not be necessary but if he is going to lead further evidence from him then I think it will be necessary.

PN9

THE COMMISSIONER: No, well, leave won't be given to lead further evidence. Witness statements have been filed in relation to the matter, so if you don't require the applicant for cross-examination, I note that. Mr Terzic, do you require either Mr Sanchez or Mr Sorto for cross-examination?

PN10

MR TERZIC: Yes, I do, Commissioner.

PN11

THE COMMISSIONER: So who do we start with?

PN12

MR AMENDOLA: Mr Sanchez is there I'm happy to go with him to accommodate the respondent in this respect. Whatever is convenient for them, I'll follow.

PN13

THE COMMISSIONER: All right, Mr Amendola? Sorry, the one thing I didn't – have I already given you permission, Mr Amendola?

PN14

MR AMENDOLA: You have, Commissioner.

PN15

THE COMMISSIONER: Thank you for reminding me of that. Why don't we start with Mr Sanchez?

PN16

MR AMENDOLA: Okay, so – and I'm not fussed about this but I'm presuming that the applicant won't open, on the basis that you've got the various submissions and - - -

PN17

THE COMMISSIONER: I've got and have read all the submissions. I don't need openings.

PN18

MR AMENDOLA: That's fine.

PN19

THE COMMISSIONER: Yes.

PN20

MR AMENDOLA: I'm happy not to open.

PN21

THE COMMISSIONER: I think everyone has been provided with a copy of the court book.

PN22

MR AMENDOLA: Yes.

PN23

THE COMMISSIONER: Yes, and so what I propose to do is mark as exhibits in the matter, each of the documents in the court book as they correspond with the tab in the court book. So, exhibit 1 is the F10, for example, yes. Mr Sanchez, can you hear and see me?

PN24

MR SANCHEZ: Yes, I can.

PN25

THE COMMISSIONER: Good. Do you have your witness statement there with you?

PN26

MR SANCHEZ: Yes, I have.

<MATEO SANCHEZ, AFFIRMED [10.28 AM]

PN27

THE COMMISSIONER: You said you have your witness statement there with you?‑‑‑Yes, I do.

PN28

Yes, very good. Are there any amendments you would like to make to the witness statement?‑‑‑Sorry, Commissioner?

PN29

Are there any amendments, any changes you want to make to your witness statement?‑‑‑No. No.

PN30

Is the content of your witness statement true and correct?‑‑‑Yes, it is true and correct.

PN31

Yes, and would you have me receive your witness statement as your evidence in these proceedings?‑‑‑Yes, Commissioner.

PN32

Very good. So, if you'd just wait there for a moment, we note that your witness statement is exhibit 25 in the proceedings.

EXHIBIT #25 STATEMENT OF MATEO SANCHEZ

PN33

Just wait there because Mr Terzic has some questions for you.

PN34

MR AMENDOLA: Commissioner, I take it from what you said previously – I was going to ask two questions in clarification in respect of the statement. Am I able to do that or not?

PN35

THE COMMISSIONER: Mr Terzic, do you have a view about that?

PN36

MR TERZIC: I'm relaxed about that.

PN37

THE COMMISSIONER: All right, Mr Amendola, I give you leave.

*** MATEO SANCHEZ XN MR AMENDOLA

PN38

MR AMENDOLA: Thank you, Commissioner.

EXAMINATION-IN-CHIEF BY MR AMENDOLA [10.29 AM]

PN39

MR AMENDOLA: Mr Mateo Sanchez, can I ask you to look at paragraph 20 of your statement.

PN40

THE COMMISSIONER: What page of the court book is that please?

PN41

MR AMENDOLA: Page 168, Commissioner.

PN42

THE COMMISSIONER: Thank you.

PN43

THE WITNESS: Yes.

PN44

MR AMENDOLA: So, I'm going to read the last two sentences of that statement and then ask you a question. So, the last two sentences read as follows, Mr Mateo Sanchez. 'The effect of Boral calling days 'non working' is that there is no work for JBA employees to do on the site that day. I wanted to avoid this from happening.' Can I ask, in terms of the last sentence, why did you want to avoid this from happening?‑‑‑Well, for me, I suppose, (indistinct) the most important thing is I get job for my guys, because it is so if I get job for my guys is because is part of my business, you know? So, for me the most important thing, I wanted to avoid that so that's why I was calling Monday, Tuesday, every day, the site. I was calling the client to make sure that I could try as much as I could to avoid this situation, you know. So, I wanted to avoid because it's part of my business so I want my guys to work, because if my guys work it's business for me, it's profit for me.

PN45

Thank you, Mr Mateo Sanchez. Can I then ask you to go to paragraph 31 which is starting at the bottom of page 170 of the court book, going over onto 171, and that's setting out the email that you sent to employees once you were notified by Boral on the Wednesday afternoon of their decision?‑‑‑Yes.

*** MATEO SANCHEZ XN MR AMENDOLA

PN46

Can I ask you, did you take any steps to see if work might be available for people after sending that email?‑‑‑Yes. Once I talked to my client, okay, and they notify – they notify me that they were going to call on non (indistinct) date, Thursday or Friday, I went – the first thing I did is, I went to the workshop. I was looking for the workshop co-ordinator and the manager there, and I was asking him, 'Do we have anything here in the workshop for tomorrow, Thursday, and Friday, do we have any job, something come up at the last minute that we can use our guys? And he said to me, 'No, Mateo, there is no work. There is – we have two guys which is work permanent guys we usually use in the workshop and these guys, I'm going to get them tomorrow and Friday to work and just tidy up and cleaning the workshop, pretty much.' So, I try, I went there and I ask him, 'There is anything for them for tomorrow, for anyone?' So, he said, 'There is nothing, and nothing came up at the last minute.'

PN47

Thank you, Mr Mateo Sanchez. I don't have any further questions, Commissioner.

PN48

THE COMMISSIONER: Thank you, Mr Amendola. Mr Terzic.

CROSS-EXAMINATION BY MR TERZIC [10.33 AM]

PN49

MR TERZIC: Mr Mateo Sanchez, you say that your role is Operations Manager for John Beever, is that right?‑‑‑Yes, yes. Yes, I am.

PN50

And John Beever is now part of a larger corporate group, I think referred to as, Acciona, is that right? Have I said that right?‑‑‑Acciona Geotech Group, yes.

PN51

Yes. I probably can't say it with the same Spanish inflection as you but I'll give it my best shot?‑‑‑Yes. That's all right.

PN52

That's part of a group of companies operating in Victoria, in Melbourne?‑‑‑Yes.

PN53

About how many employees are in those separate companies, Geotech and the others, could you just spell that out please?‑‑‑Well, I know (Indistinct) – I know more about my business here. I don't know how many people they have in Geotech, yes. I cannot be (indistinct) that to your question. I would like it but I cannot because I don't know if they have – I don't know if in Geotech in Victoria. I don't know if they have 50 guys.

PN54

Yes?‑‑‑If they have ten and – I cannot answer that, so - - -

PN55

Yes. So, do you have any role in the conduct of those other businesses?‑‑‑No, so - - -

PN56

So you're solely related to John Beever?‑‑‑Yes.

*** MATEO SANCHEZ XXN MR TERZIC

PN57

In respect of John Beever, do you focus on construction work, or workshop work or just a whole range of functions?‑‑‑So, as Operations Manager I am in charge of different employees for the construction business, okay?

PN58

Yes?‑‑‑Also for the tendering. So, all the tenders we are running, I have a tender team and then - - -

PN59

Yes?‑‑‑And then I have a workshop co-ordinator under me, who is Andrew Preston.

PN60

Yes. Do you have any role in the day to day operations of the Boral Construction project?‑‑‑On daily basis - - -

PN61

Yes?‑‑‑I am in contact on daily basis with our (indistinct) - - -

PN62

Yes?‑‑‑So, I am in contact with him and I am in contact with the client. I have my regular meetings with the client, as well, about the house, everything going there, what is their needs and how can I help them.

PN63

Sure, and you're based at Turner Street in Port Melbourne, is that right?‑‑‑Yes, that's right.

PN64

But you were based prior to that at the Sunshine workshop, too?‑‑‑Sorry?

PN65

Were you based at the workshop at Sunshine before it moved to Port Melbourne?‑‑‑No. No.

PN66

You don't know what was going on, necessarily, at the old Sunshine workshop?‑‑‑At the Sunshine workshop I don't know what, because when I came to John Beever to Victoria, and there's some saying workshop's already closing.

PN67

So, John Beever, according to the evidence, seems to have as its main project, the Geelong Cement Works, that's right?‑‑‑Yes, that's the main one.

PN68

That has expanded up to about 70 employees, and contracted down to now about a dozen or so, is that right?‑‑‑Well, we have around 22 guys now on a daily basis.

*** MATEO SANCHEZ XXN MR TERZIC

PN69

What's been the fluctuation in the number of employees based at the workshop over the last year or so?‑‑‑Over the last year, the workshop run down. We had to run down because of the – we were not getting jobs as previously we used to work, we used to get.

PN70

Yes?‑‑‑So, we had to do a run down, so – until the level that we used to have here, like, three, four, five days, depending on the workload and depending what jobs were coming, but two days permanently, and then a couple of casuals sometimes, in our, you know? But this between the seven, sometimes if some job was coming up, but no more than that. So, the workshop has been – the workload is being very low, to be honest.

PN71

Then apart from that, in your statement you referred to some other work that John Beever conducts, and I'm looking at page 177 of the court book?‑‑‑Page 177?

PN72

Yes?‑‑‑Item number?

PN73

Fifty-nine?‑‑‑Yes.

PN74

So, there's a train wash maintenance facility at Craigieburn?‑‑‑Yes.

PN75

So that involves, what, like an automatic car wash but instead of cars, trains run through it to be cleaned, is that right?‑‑‑It's a train wash. It's a facility for washing the trains.

PN76

Yes, and that's a permanent employee who works there?‑‑‑He used to, not any more but he used to work there on those days.

PN77

All right, and he was responsible for making sure the train was equipment worked and was in good service and repair, is that right?‑‑‑Yes, he was in charge of that, yes.

PN78

Then you have some workers at the Nufarm Agricultural Chemical Facility?‑‑‑Yes.

PN79

And you say three employees worked there?‑‑‑Yes.

PN80

Were they permanent or casuals?‑‑‑Permanent guys, if I remember, were permanent guys.

*** MATEO SANCHEZ XXN MR TERZIC

PN81

Does that number go up and down?‑‑‑It's going to three, four, three, four (indistinct).

PN82

So, you might need three, one day, four the next?‑‑‑Yes, it depends on the schedule of works and depends on the maintenance activities for the – according to the plan - - -

PN83

Yes?‑‑‑As per the client request. We put three, four, and sometimes there are weeks they want five.

PN84

Yes, and then you've repeated something about quantum. Is that just a mistake in your statement, you've put the same thing in twice?‑‑‑I think, yes.

PN85

One's in Geelong and one is in West Melbourne?‑‑‑Yes.

PN86

Okay, I see, yes?‑‑‑Are the same.

PN87

So, then you've got two facilities for Quantem?‑‑‑Yes.

PN88

The one at Geelong, that would be near the Boral site, I take it, is that right?‑‑‑Yes, that's right.

PN89

Yes, and does the number there of employees fluctuate?‑‑‑No, not really. Not really.

PN90

Do you know how many were working there around the time of 24 and 25 March?‑‑‑I think five guys there.

PN91

Five guys, okay?‑‑‑Like, we stay there, three permanent and two casual.

PN92

Yes. Then that facility is pretty well replicated in West Melbourne, isn't it?‑‑‑It's a different job, but the – yes, some of the facility different, but yes, we used to work there. So, Quantem in Geelong is a contract. We start with the works back in August, okay, and we're still working there, and Quantem in West Melbourne is a job, is or like they call us, come for two weeks, do some activities and go out.

PN93

Sure?‑‑‑So, more intermittent.

*** MATEO SANCHEZ XXN MR TERZIC

PN94

Then there's a site, I think it's called the Exon. It's not referred to at paragraph 59 but over a couple of pages at page 179, paragraph 67, the Exon site which is, I believe, a chlorine plant, is that right?‑‑‑Mm-hm.

PN95

You said there were no casual employees working there on 24 or 25 March?‑‑‑No.

PN96

Were there employees working there before or after 24 and 25 March, do you know that?‑‑‑I need to check it out, to be honest. I don't recall if – I know that we did a job, you know, but in fact – but I need to check the dates, you know?

PN97

So, maybe, maybe not. You don't know?‑‑‑No, I don't know. Well, I know that we did some job recently but I don't remember the dates.

PN98

Sure. For Mr Pantalleresco, you know what his qualifications are and what his capacity is as an employee?‑‑‑Yes, he's a fitter.

PN99

He's a fitter. He would be capable of doing much of the work that I've just referred to, so for example, at the train wash at Nufarm, at Quantem, is that correct?‑‑‑Well, the train wash, it's only one guy's required by the client, nothing else.

PN100

Yes, but that's not the question. The question is, would Mr Pantalleresco be able to do that work if the normal employee was not available?‑‑‑If the normal employee is not available at train wash, I don't think so because we have the employee we have at the train wash. He has some instrumentation and control experience and capabilities that Mr Pantalleresco, I am not aware of.

PN101

He might not be able to do the full range of functions there, for example, but there would be some work he could do there, is that true?‑‑‑Yes, but in that case I would need two gentlemen to do the job.

PN102

Yes, and Mr Pantalleresco would have been capable of doing some of the Port Melbourne workshop work if work was needed there, is that true?‑‑‑If work was needed, yes, I think so.

PN103

Yes, and the same for Nufarm?‑‑‑Yes.

*** MATEO SANCHEZ XXN MR TERZIC

PN104

The same at Quantem Geelong?‑‑‑Quantem Geelong, the guys – well, if I know half their people there, yes, but the case, in this case, whether in respect of them, whether they're certified and they've done the specific training to do the welding. At that works, that – Mr Pantalleresco, I am not aware of his qualification(?).

PN105

Yes. Are you aware of Mr Pantalleresco's rigging qualifications?‑‑‑Rigging qualifications, yes.

PN106

Yes. Would there be rigging work at any of those places that Mr Pantalleresco could have performed?‑‑‑I need to check that very – on those days, the specific activities and today, I should check that certainly (indistinct) activities.

PN107

You will?‑‑‑Yes.

PN108

So, after going to that subject I want to change subject matters for a little bit, and I want to go back to around the time just before the stand-down which occurred on a Thursday and a Friday, the 24 and 25 March?‑‑‑Mm-hm.

PN109

Things in this respect really started the Friday before when John Beever received a notice from the AMW saying that there would be four hour stoppages after the last half of the day for 24 and 25 March. That's right, isn't it?‑‑‑Yes.

PN110

And you, together with other managers from John Beever relayed that news to Boral management?‑‑‑Yes.

PN111

You did that pretty promptly, almost immediately on receiving it?‑‑‑Yes.

PN112

It was a bit hard getting hold of the relevant Boral managers, one was not available. Neil Cooper was the main manager, is that right?‑‑‑Yes.

PN113

But you also had someone called Steve, I think it's Meilac, try and make contact - - -?‑‑‑Steve Meilac, for a leading hand.

PN114

Yes, he tried to contact Boral, as well, pretty well immediately?‑‑‑Yes.

PN115

Then there was the Boral supervisor, John Preston?‑‑‑Mm-hm.

*** MATEO SANCHEZ XXN MR TERZIC

PN116

And you were trying to let them know that the stoppages were scheduled to occur on 24 and 25 March?‑‑‑I was. I was trying to let them know. I tried with Steve to let them know, which there were representative there, as a leading hand, and I – and this – following my discussions with (Indistinct), I tried (indistinct) to escalate this to the project director, who is Neil Cooper, so I tried the different ways, yes, with (indistinct).

PN117

Is it your evidence that you were trying to persuade Boral to let the John Beever staff work on those two days in the mornings? Is that what you were trying to do?‑‑‑No, I – what I was trying to do when I was trying to call them, is to let them know that this was happening again, because this is our work practice, the way we work. We communicate to all our clients that this is happening.

PN118

Yes?‑‑‑And the way we communicate and the way I wanted to tell them is that this is happening, but my plan is to keep my guys working and don't impact any works on your site.

PN119

Yes?‑‑‑Because I want to be efficient and I want to keep my guys working, but just to let you know, I need to communicate that this is coming.

PN120

Yes. Did you try to persuade Boral managers that the work could be productive for half a day on the 24th and 25th?‑‑‑Yes, even in my email, they email - like, write to them. You can read in my email. I don't know what is there, the appendix in my statement, but they will see my email and saying that my plan, I'm communicating this to you, and they – and will then see in my email is, I want to mitigate any delays, even if my guys are going to work only four hours, or three hours or five hours, so - - -

PN121

So, you didn't really get a response from Boral, is that what happened?‑‑‑So, when I sent – when I tried to call them (indistinct), well, Friday, Monday, Tuesday and Wednesday, I got an answer on Tuesday, if it is there in my statement, I don't know if it – I think it was Tuesday. I got that call with John Preston and he said, 'Let me come back to you about that because I need to discuss this with Neil Cooper, so I should have an answer by tomorrow, Wednesday.' On Wednesday I didn't get any answer – any answer. I was following up. I was chasing my leading hand which is Steve, and I said, 'We need an answer because we need to let the guys know what's going on, so if there are rumours I need to make sure what is going on to notify the people in time.' Then he said – he didn't answer that. He replied to my email, then he sent an email from John Preston to me, saying, 'Okay, Mateo, I will reply to you as soon as I can', and then I didn't get an answer. And I got – the last answer, I got it Wednesday evening time, like, 5 o'clock, something like that.

*** MATEO SANCHEZ XXN MR TERZIC

PN122

Then you emailed your (indistinct)?‑‑‑After I got – after I got that call from John Preston that he notified to me that he already got an answer from Neil Cooper, I went to the workshop straight away and I tried to get Andrew Christy(?), and say, 'Andrew, do we have any activity for tomorrow', before we send (indistinct).

PN123

So, your evidence is, is that really from the Friday before the stoppages on the Thursday and Friday, you'd been trying to communicate to Boral to see what would be happening on those two days, and that was the focus of your efforts?‑‑‑My focus was - - -

PN124

On the Friday, Monday, Tuesday, Wednesday?‑‑‑My focus was two focus, trying to get Boral, okay, and – trying to get Boral and give me a clear instruction about what's going on; and the second one was, in the meantime, I was checking if something was coming up just in case, in order to get my guys some work if that was the case. I didn't get anything in my book so I couldn't.

PN125

All right, so just the last thing you said there, checking to see if there was something else, I just want to put it to you that really, the tenor of your evidence in your statement is that you fully expected that there would be non working days on the Thursday and Friday, by Monday. You didn't expect there to be work on the Boral site?‑‑‑No, no, I didn't – I didn't, no worry. I didn't have a clear, clear instruction. It was all rumours.

PN126

Yes but the rumours were saying that the work would stop. Those were the rumours, weren't they?‑‑‑Yes, that was the rumours were that the job was going to be stopped. That was the rumours only, no clear instruction from anyone.

PN127

So, the rumours were, no work Thursday, Friday?‑‑‑The rumours were like, no productive days, Thursday, Friday.

PN128

And those rumours were apparent to you by Monday, weren't they?‑‑‑Yes.

*** MATEO SANCHEZ XXN MR TERZIC

PN129

Yes, so on Monday, you didn't start making inquiries for alternative work in the Beever business for the Boral workers, the Boral based workers, did you?‑‑‑No, I talked to my guys and the project – as I said before, I talked to Steve on a daily basis, pretty much, I talk to my guys at Quantem, the project managers at Quantem, I talk to the guys at the other jobs with us, which is three jobs with three, four or five people. I talked to them and I said, 'There are rumours about this. There are rumours about this, that' – and they even called me. My people, they called me, 'There are rumours about this, what's going on?' And I said that Boral, they're calling maybe that Thursday or Friday, is not (indistinct) days. So I even check and I said – because we have, for example, at Quantem Geelong we have two casuals there, okay? So, I even check what are the qualifications of these two casuals. One is a building inspector and another one is a welder with a specific certification to do the jobs. So, none of the other guys, they have these qualification to do the job. So, I check it and I tried as much as I could, I think.

PN130

But Mr Mateo Sanchez, you're saying now that by the Monday or the Tuesday, you started looking at other work at places like Quantem. But you didn't put that in your statement, the statement you made on 12 May, did you? Maybe I missed it. I couldn't see that you had started making inquiries about alternative work earlier in the - - -?‑‑‑Yes but I didn't – I didn't worry. I didn't put all of my life in the statement, but what I mean is that on daily basis I talk to my people and I try to accommodate and get jobs for my people, as much as I can, considering the work I have in the books. I try. Every day, I talk to my people. I cannot say in this statement everything. I'm talking to my people, every day. I talk to them, and of course there were rumours and I even try my best to have plan B, and that's why the only plan B, what's left on Wednesday evening was saying, 'Okay, let's see what's going on in the – what's going on in the workshop. I went to the workshop and I asked the workshop coordinator, 'Is there anything we can do for tomorrow?' 'No.' No, because they're planning doing some cleaning because they had no workload. They had nothing. Something came up? No, nothing came up.

PN131

You said you didn't put your whole life in the statement, and you didn't put all of these things you're saying now in your statement, but did you go and speak to the workers, your workers at the Boral site, in particular, Mr Pantalleresco who is the leading figure, their leading representative, about how they can be deployed elsewhere? Did you go and speak to them about that?‑‑‑On Wednesday evening?

PN132

No, before that, on Monday, on Tuesday, did you raise with them the prospects of alternative work if the site closed?‑‑‑No, I talked daily to their leading hands and their project managers in place.

PN133

Yes, but - - -?‑‑‑I didn't talk to Mario.

PN134

Yes, so the site is unionised by the AMWU, you know that?‑‑‑Yes, I know that.

PN135

You know Mario is the shop steward and the leading figure as a representative for the workers at the Boral site?‑‑‑Yes.

PN136

And you didn't go and speak to him about whether they would be happy to go and work somewhere else if work could be found, did you?‑‑‑No.

*** MATEO SANCHEZ XXN MR TERZIC

PN137

Thank you. So, I put it to you that you didn't make serious efforts to find alternative work through Monday, Tuesday and Wednesday before the stoppage. You concentrated, rather on turning Boral around. That's the truth, isn't it?‑‑‑Can you please repeat that very – it sounds very - - -

PN138

So, I have to put this to you. I put it to you that on the Monday, the Tuesday and the Wednesday before the stoppage, which took place on the 24th and – Thursday and Friday, you did not make serious efforts to find alternative work for Mr Pantalleresco?‑‑‑I did all the effort.

PN139

You did - - -?‑‑‑I did all the effort. I can. And considering their main job is Boral, and Boral was making that call. Even I tried to do all my best to have – and this is what I say to Mario Pantalleresco the day they came into the workshop in the morning. Following that discussion I said, 'For me, the best thing is I get job for all of you, each of you.' I am not happy if I don't get job for my guys. I try my best.

PN140

Yes. Just looking at what you said in your statement on page 174, at paragraph 42 - - -?‑‑‑Yes.

PN141

You're referring there to the conversation you had with Mr Pantalleresco, Mario - - -?‑‑‑Yes.

PN142

In the Port Melbourne workshop - - -?‑‑‑Yes.

PN143

On the Thursday morning, so when he'd been told he wasn't to – when he was told he was stood down, and you say that your conversation went in circles, do you see that?‑‑‑Yes.

PN144

And with, 'Mario kept suggesting they could clean the workshop, and I explained to him that the job was already taken care of'?‑‑‑Yes.

PN145

Then later at the end of that paragraph you say, 'I told them that work is scheduled a week out in advance, but I might be able to find work at the workshop for the following week but he would be back to work at the Geelong construction site by then so there was no point.' Do you see that?‑‑‑Yes.

PN146

So, what you're alluding to there is that if you attend to schedule in work, you say, a week before, you can find work?‑‑‑No, I could try - - -

PN147

But you can't do it on the morning, is that what you were trying to say?‑‑‑No, what I'm trying - - -

*** MATEO SANCHEZ XXN MR TERZIC

PN148

Or can't (indistinct)?‑‑‑What I'm trying to say, Mr (Indistinct), is that I could try for next week if this is happening again, to try in advance to get something, or we are scheduled or something, or with more time to do something. I'm trying to find something for my people, for my guys. This is what I mean there. I mean that I would try for my best to reschedule whatever we can with (Indistinct), okay, if in case we can find something. I would try my best.

PN149

Sure. Look, I'd accept that the most convenient way for you to deal with all of this was just to simply say that with no working day declared by Boral, it was easier for you to stand that crew down. You accept that, don't you? It was the easiest way of dealing with it?‑‑‑No, I never said that. It's not the easiest way for me.

PN150

Well, what - - -?‑‑‑For me, when what I says that they have no work for my guys, you see, is not good news. It's very bad news.

PN151

It's not good news, but your response was the easiest response, wasn't it, just to say don't turn up. That's the easiest way of dealing with it?‑‑‑Are you referring to any statement? Yes? Or is (indistinct)?

PN152

No, I'm not referring to – I'm putting a proposition to you?‑‑‑Yes.

PN153

That if Boral says, 'Don't send workers to the Geelong Cement project', the easiest way for you to deal with that is simply to say to the workers, 'Don't turn up.' You can't dispute that, can you?‑‑‑No. No, it's not the easiest way as - - -

PN154

Well, what's easier?‑‑‑(Indistinct reply)

PN155

What's easier?‑‑‑It's not the easiest way. Even from my site, the way I work, the way I am, is not the easiest way, to say, 'Okay, there is no work.' The easiest way for me is, 'The client is coming back to me', I'm saying, 'Okay, we are going to try our best to get you people in project.' That's the easiest way for me.

PN156

That's the best way, but the more convenient way would be just to say, 'Well, don't turn up', isn't it?‑‑‑No, it's not the – that's not the easiest way. I don't – I don't accept that statement, sorry, Mr Terzic.

PN157

That's fine, Mr Mateo Sanchez. So, I want to ask you about the container yard at Campbellfield, is that right?‑‑‑Yes, Campbellfield, yes.

*** MATEO SANCHEZ XXN MR TERZIC

PN158

About how many containers are there there(sic)?‑‑‑I don't know exactly the number, to be honest. It's a big yard and we have a lot of containers there.

PN159

Inside those containers are the equipment that John Beever will use for site work, is that right?‑‑‑Some of them, yes, some of them no.

PN160

What's - - -?‑‑‑There are some tools and equipment there, I don't – I don't have with me now the inventory of everything - - -

PN161

Sure?‑‑‑But there are tools, there are equipment, there are that other stuff there that we organise whenever we are going to set up a project. We organise the container and we sent the containers as they are needed, some stuff.

PN162

So, could you give me an example of some of the things you would typically find in those containers? Like, chain blocks - - -?‑‑‑Yes, I - - -

PN163

Lifting equipment, cables, lifting slings - - -?‑‑‑Yes, those kind of - - -

PN164

(Indistinct)?‑‑‑Yes, kind of the stuff as you mentioned. But I haven't – honestly, I haven't been personally, myself there. I haven't been because (indistinct) and I haven't been there. I went there at the beginning when I came and I took place of this position, last August, 20/21, but I haven't been there since then.

PN165

So, is there some sort of inventory or record of what's in those containers?‑‑‑There is some inventory of that.

PN166

Yes, and so if a particular project requires those containers, you'd be able to find out which container has the equipment needed, and then you'll take it on site, and Mr Pantalleresco instructs me that some of the containers were used for a job at the CUB Brewery recently, is that right?‑‑‑Yes.

*** MATEO SANCHEZ XXN MR TERZIC

PN167

And what Mr Pantalleresco says in his statement and what he instructs me is that it's not unusual when you open up those containers to find some of the equipment in there needing some maintenance work. It could be rusty, out of shape, bent, twisted. It needs to be brought back into serviceable use. Do you know about that? Do you accept that?‑‑‑Maybe – I mean, this is something that's coming from Mr Pantalleresco but I don't know about what he means that they're – that the equipment inside is not – I mean, I don't know. What I know, and Mr Pantalleresco is whenever we are going to our project and our people, they need some – do some equipment, what they do is, we send there some of our work guys, they set up the container and they send the container. If nothing there is, I don't know, out of use or something – I mean, I don't – I am not aware about that.

PN168

Okay, but do you accept that if a container was delivered to a site, like one was recently delivered after the stand down, to the CUB site, it would allow for a more productive and quicker start to the works if everything in the container was in good order and well organised? That would be a better situation, wouldn't it?‑‑‑I mean, this is what we – you try and do, and this is what is in our plan. And our plan is whenever we go to a site we set up the container. If for any reason someone didn't set up the container properly, for example, for the job, I am not aware of that. So what I know is that advice, they – before we got to the project we set up the container. It's part of the procedure. We have our warehouse storeman, we have our warehouse co-ordinator. They make sure that the container is fitting for the purpose of the works and they send the container. If something happens in any (indistinct) and that something is not working, but usually we set up the container to be efficient and effective. This is the plan and this is the procedure. That's been my understanding. This is what - - -

PN169

Yes, and that's work that needs to be done on a regular basis, isn't it?‑‑‑No, this is work that needs to be done whenever we both do a specific project, because each project is different and for each project you need different tools and different equipment.

PN170

Yes, but all the equipment needs to be in good order, doesn't it?‑‑‑All the equipment needs to be in good order.

PN171

Yes?‑‑‑I fully agree with you.

PN172

Yes. Moving to the workshop now, so Mr Pantalleresco says – I don't think you disagree with this, that there was a workshop originally at Sunshine, a far bigger workshop, and John Beever's moved to a smaller shared workshop at Port Melbourne now?‑‑‑We are at Port Melbourne.

PN173

Yes?‑‑‑I'm in charge since we are in Port Melbourne, yes.

*** MATEO SANCHEZ XXN MR TERZIC

PN174

And on doing that move has the workshop been completely and finally set up or is there still work that needs to be done? For example, Mr Pantalleresco instructs me that there's a pedestal drill that isn't bolted to the ground. Do you know about that, or wasn't at the time?‑‑‑At that time, I don't remember specifically this machine or this equipment, if it is not bolted up. Is something I have in the duties with the workshop coordinator and the workshop manager, to have all the tools and equipment fit for purpose to do their job, and so – and then so I don't know what else to tell you, you know. It's something I – I delegate this in my workshop coordinator, to have all the tools and other equipment fit for purpose. If there is an equipment that's not bolted up yet it's because I wouldn't need it, or we are scheduled to do it another different day, for some reasons.

PN175

Are you aware about the situation with the extraction fans?‑‑‑Yes.

PN176

Extract fumes from welding? Are they all fully set up - - -?‑‑‑No - - -

PN177

Or you don't know?‑‑‑No. We are doing some monitoring at the moment. We are doing some monitoring at the workshop because – I know when because I was following up yesterday. We are doing some monitoring in order to check how many fan extractions we need. So, I involve my health and safety department here at the workshop to make sure how many extraction ventilation for the fumes of the welding activities we need. We don't know at the moment because the assessment is being now. It's in progress now. We don't know if we need two, there, four, five portable ventilation, because they've managed to get some portable – portable ventilation extractors.

PN178

Also, Mr Pantalleresco said in his statement that generally there's a need to have pipe stands available and there could have been work getting the relevant pipe stands. Now I'll explain. The pipe stands, as I understand it, are stands that pipe welders will use to position pipes so that they can be welded together, so they're elevated and put in the right spot, and these stands get in a bad state of repair. And Mr Pantalleresco says that he could have set himself to repairing those pipe stands at the workshop on 24 and 25 March. Are you able to comment on that?‑‑‑I am not – I saw that in Mr Pantalleresco's statement but I am not sure from where is it coming, that – this thing about the statement in about – if it is about maintenance. I have been working down sometimes – from some time to time in the workshop because it's just here, and I haven't seen that there that these tools are over for the – anyway, I have my weekly meeting with my workshop manager and coordinator and he's taken actions. I don't know. There is still worth to check how is the tools and how is those tools. I am not aware about some things, you know, about condition.

PN179

Yes. Mr Pantalleresco also said that the screw cutting machine in the workshop was not functional. Do you know about that?‑‑‑No.

PN180

He also said that there would have been work, or maintenance work on the lathe for the boring machine, are you aware of that?‑‑‑Can you repeat please, the connection wasn't very good.

*** MATEO SANCHEZ XXN MR TERZIC

PN181

Sorry. He said that there could have been work, maintenance work on the workshop lathe and on the boring machine, as well, so they could have been maintained?‑‑‑I don't think for – for the machines, tools and equipment, what I know is that we have some machines, some specific machines for the maintenance. We need that provided and we need the supplier sometimes to make sure that they maintain the equipment for what (indistinct), and we need sometimes electricians and this is as per their – this is following the maintenance, and the maintenance schedule would have in the workshop to – to check that, to check that equipments are fit for purpose. But I am not aware about this specific equipment that would have been done something. And I ask – as I said, I asked, the day before, the maintenance, the workshop coordinator and he said that nothing was there, no activities.

PN182

Thank you. That would be the end of my cross-examination.

PN183

THE COMMISSIONER: Thank you, Mr Terzic. Mr Amendola, any re-examination?

RE-EXAMINATION BY MR AMENDOLA [11.11 AM]

PN184

MR AMENDOLA: I do have just a couple of questions in respect of re-examination.

PN185

THE COMMISSIONER: Thank you.

PN186

MR AMENDOLA: Mr Mateo Sanchez, how often, to your knowledge, does Mr Pantalleresco attend the workshop?‑‑‑Since I am here, (indistinct), never.

PN187

Sorry, was your evidence then 'never'?‑‑‑Yes, I said that since I am here, Commissioner, I haven't seen Mr Pantalleresco working in the workshop. Never. Never ever.

PN188

And I think your evidence was that you go through the workshop from time to time during the week whilst you're at work at Port Melbourne?‑‑‑Can you say again, Steven, sorry?

PN189

I think your evidence was that you do walk through the workshop from time to time - - -?‑‑‑Yes.

PN190

Whilst you are at Port Melbourne?‑‑‑Yes.

*** MATEO SANCHEZ RXN MR AMENDOLA

PN191

In terms of the Boral site, are you aware whether Boral had declared non productive days earlier when industrial action was taken at the Boral site by employees of JBA?‑‑‑No.

PN192

Is that no, you're not aware, or - - -?‑‑‑No, no. No.

PN193

Or not productive days?‑‑‑For the previous protection action orders, they never called non productive days before. This is the first time they did it.

PN194

Okay. You were asked questions about work at particular sites. That is, and I'll just leave aside the workshop, but Nufarm, Quantem Geelong, Quantem West Melbourne?‑‑‑Yes.

PN195

Is anyone who's not worked at that site, if they were to attend that site, would they have to be, even though they were JBA employees, would they have to go through an induction process?‑‑‑Can you please repeat (indistinct), sorry?

PN196

Sure. You gave evidence in your statement, and Mr Terzic asked you some questions about work that JBA had at other sites?‑‑‑Yes.

PN197

So, Nufarm?‑‑‑Mm-hm.

PN198

Quantem Geelong, Quantem West Melbourne?‑‑‑Yes.

PN199

Would someone like Mr Pantalleresco, or other employees at Boral, if they'd attended that site to do work, would they have had to be inducted?‑‑‑Yes.

PN200

In terms of work that might be taking place on that site, would they require an explanation of what that work might be?‑‑‑Yes, of course, yes, about all the procedures.

PN201

Yes, and can I just take you to – could I ask you to look at page 111 of the court book, which is behind attachment 12 and it's the protective action notice that was given?‑‑‑Yes.

PN202

In it, after the two days where it indicates that there's going to be two four hour stoppages, it gives an example in terms of stoppage starting at 11 am?‑‑‑Yes.

*** MATEO SANCHEZ RXN MR AMENDOLA

PN203

So, in terms of providing work at these other different sites, would it be right to say that for Mr Pantalleresco, and let's just focus on him, he would have to travel to those sites?‑‑‑Yes.

PN204

He would have to be inducted into those sites?‑‑‑Yes.

PN205

He would have to have the work explained to him?‑‑‑Yes.

PN206

Then he would leave to take industrial action at 11 am?‑‑‑Yes.

PN207

Yes. Just bear with me for one moment, Commissioner.

PN208

THE COMMISSIONER: Thank you.

PN209

MR AMENDOLA: So just one final question following on from those questions, Mr Mateo Sanchez, would there be any benefit to JBA in those circumstances to have people attend those sites from Boral to do work?‑‑‑In the other sites, do you mean, Stewart?

PN210

Yes. Yes?‑‑‑No benefit.

PN211

No further questions, Commissioner.

PN212

THE COMMISSIONER: Thank you, Mr Amendola. Mr Sanchez, can I thank you for your attendance here today. You're now excused as a witness?‑‑‑Thank you, Commissioner. Thank you.

<THE WITNESS WITHDREW [11.16 AM]

PN213

MR AMENDOLA: Can you bear with me for one moment, Commissioner. I am hoping that my instructor, that is, Mr Roma, has organised Mr Sorto, in the meantime. Just bear with me for one moment.

PN214

THE COMMISSIONER: That's okay. We can take a short adjournment if needs be.

PN215

MR AMENDOLA: Let's just see.

*** MATEO SANCHEZ RXN MR AMENDOLA

PN216

THE COMMISSIONER: Mr Sorto is logging in now.

PN217

MR AMENDOLA: Okay. Commissioner, if that be the case, in terms of the procedure that you use, like, I'm happy to go through that process but I'm more than happy for you to go through the process that you went through with Mr Mateo Sanchez. I'm not fussed either way.

PN218

THE COMMISSIONER: Thank you.

PN219

MR AMENDOLA: In which case, I won't call for an adjournment. I'll wait till he comes on and then I'll leave it to you.

PN220

THE COMMISSIONER: Thank you.

PN221

MR AMENDOLA: Mr Sorto texted me that he is logged in, he believes.

PN222

THE COMMISSIONER: We can't see him there. Associate, can you see Mr Sorto anywhere?

PN223

THE ASSOCIATE: No, there's no one in the lobby, right now.

PN224

MR AMENDOLA: He might have used the incorrect log in of something that I've sent him. I sent him the notice of listing but this has happened before, so do you mind if I mute myself - - -

PN225

THE COMMISSIONER: We will adjourn for five minutes while we sort these things out.

PN226

MR AMENDOLA: Thank you, Commissioner.

SHORT ADJOURNMENT [11.18 AM]

RESUMED [11.20 AM]

PN227

THE COMMISSIONER: Mr Sorto, can you hear me? It's Commissioner Johns.

PN228

MR SORTO: (No audible reply)

PN229

THE ASSOCIATE: You're on mute, sir.

PN230

MR SORTO: Morning, Commissioner. I can hear loud and clear, thanks.

PN231

THE COMMISSIONER: Thank you. I'm going to administer the affirmation to you. I'll just wait for Mr Terzic to return. Thank you.

<JOSE SORTO, AFFIRMED [11.20 AM]

EXAMINATION-IN-CHIEF BY THE COMMISSIONER [11.20 AM]

PN232

THE COMMISSIONER: Do you have a copy of your witness statement there with you?‑‑‑I do, yes. Yes.

PN233

Are there any amendments you would like to make to your witness statement?‑‑‑No, Commissioner, no, not at this stage.

PN234

Are its contents true and correct?‑‑‑They are, yes.

PN235

Would you have me receive your witness statement as your evidence in these proceedings?‑‑‑Yes.

PN236

The witness statement of Mr Sorto is exhibit 19 in the proceeding. If you'd just wait there, Mr Terzic has some questions for you. Mr Terzic.

CROSS-EXAMINATION BY MR TERZIC [11.21 AM]

PN237

MR TERZIC: Mr Sorto, you've been with the John Beever business for a while now, is that right?‑‑‑Yes.

PN238

About how many years?‑‑‑Right on 15, Mr Terzic.

PN239

In that capacity, you've got to know Mr Pantalleresco quite well?‑‑‑I would say quite well, yes.

PN240

*** JOSE SORTO XN THE COMMISSIONER

*** JOSE SORTO XXN MR TERZIC

You know his abilities as an employee of John Beever, his trade abilities?‑‑‑I don't know of his qualifications, but not of his, you know, abilities in terms of comparison to others, no.

PN241

You know that he has been deployed to multiple sites throughout John Beever's business activities?‑‑‑Most definitely, yes.

PN242

Yes, construction sites?‑‑‑Yes.

PN243

He has also gone on to do site maintenance work at some of the places you've got contracts at, like for example, the Nufarm business, he's been there, you're aware of that?‑‑‑Yes.

PN244

He's also worked at the IXON chlorine plant, are you aware of that?

PN245

THE COMMISSIONER: I'm sorry, you might have to repeat that, Mr Terzic, there was a little pause in the audio.

PN246

MR TERZIC: You know that he's been to the IXON chlorine plant?‑‑‑Yes, look, I'm certain that he's worked at various locations that we do maintenance and infrastructure work at, yes.

PN247

Yes?‑‑‑Specifically different areas..

PN248

Yes?‑‑‑I talking about – I don't coordinate the labour, day to day, but I'm aware that obviously Mario would have –

PN249

Mr Pantalleresco, sorry, would have spent time at those sites.

PN250

And to go to those sites he would have had to have gone through the induction process?‑‑‑Yes.

PN251

Yes. Do you know where he's been inducted to and where he hasn't been inducted to, specifically?‑‑‑No, not at all. I'm not aware of that detail.

PN252

Not that level of detail. And he's always been a very capable worker, to the best of your knowledge?‑‑‑Look, I can't comment. I haven't got any specifics on his performance unfortunately, Mr Terzic. But we've never had any - - -

*** JOSE SORTO XXN MR TERZIC

PN253

(Indistinct) - - -?‑‑‑We've never had any (indistinct).

PN254

Yes, you've never had any issues - - -?‑‑‑Not - - -

PN255

(Indistinct) issues?‑‑‑Not that I'm aware of, no, not to be specific, no.

PN256

So, you were the executive general manager of John Beever, so you're really one of the most senior officers, aren't you?‑‑‑I am.

PN257

Yes. So, the events we're here about came about really through enterprise bargaining for the current agreement, that's right?‑‑‑Is that a question, Mr Terzic?

PN258

Yes. This is all wrapped up in enterprise bargaining, isn't it?‑‑‑I'm not sure what your question is, Mr Terzic.

PN259

So, we're here about the stand-down on 24 and 25 March, do you accept that?‑‑‑Yes.

PN260

And the stand-down occurred – really it was related to the AMW organising protected industrial action on the afternoons of those two days, about a half of those two days, that's right?‑‑‑That's correct.

PN261

The protected action was to try and secure better terms as far as the union was concerned for an enterprise agreement?‑‑‑I can't comment. That's the intention of the unions.

PN262

Yes, all right. Bargaining had been going on for really about two years, is that right?‑‑‑I'm not too sure when we filed the (indistinct) but I would assume that you're semi-correct, yes.

PN263

So, eventually the union had notified that there was to be stoppages on 24 and 25 May, and they notified you of that on Friday, 18 March. Do you remember getting the notice about then?‑‑‑I believe so, yes.

PN264

Yes. Yes. At that point you expected that the workers would quite lawfully walk off the job at the Boral Cement Works project, at about 11 am on both of those days, the Thursday and the Friday?‑‑‑I did receive the notice from yourself on that day, on 18 March.

*** JOSE SORTO XXN MR TERZIC

PN265

Yes, and from what I see in your statement you thought that this would have consequences for your relationship with Boral. That's right, isn't it?‑‑‑Are you referring me to a sort of paragraph in my statement?

PN266

Yes, I think it's about paragraph 6 or paragraph 7, but just going from your own memory, it's true that you thought, well, if there's going to be a stoppage I'd better speak to Boral about this and get in contact with them, and you did that, didn't you?‑‑‑I don't regularly speak with Boral. I don't normally engage on a day to day basis with our projects, or project directors.

PN267

Yes?‑‑‑On considering that this was the third or fourth industrial action, I forwarded the information across to Neil Cooper, who is the Boral project director.

PN268

You called him on the Monday too, didn't you?‑‑‑Yes, I did.

PN269

Yes. So, at least early in the week, so about the Monday, did you apprehend that Boral would tell John Beever not to send anyone at all to work on the Thursday and the Friday? Did you form that impression that there was a likelihood?‑‑‑In paragraph 7, the comment there where Neil mentioned, you know, the conversation that – where he saw that industrial action then as unproductive.

PN270

It would be a waste of resources, so by at least Monday you'd expected that you would be required not to attend site on the Thursday and Friday?‑‑‑He intimated that he was thinking of that.

PN271

Yes, yes. So, therefore did you then turn your mind into what you could do to try and mitigate that situation?‑‑‑Yes, look, if you go to my statement on paragraph 10, you'll see that I did contact Alberto, and Alberto and Steve and let them know of my conversation. I know Steve (indistinct) is quite close with Neil, and Steve did try and convince Neil otherwise.

PN272

Yes, and you were in touch with Alberto, as well?‑‑‑Correct.

PN273

Did you speak to Alberto much at all in those next few days, Monday, Tuesday, Wednesday?‑‑‑Not necessarily. Once I had spoken with the client, the operational day to day, you know, site management is automated with our operations team, so – and the site with Steven and Alberto, so I let them work out the logistics.

*** JOSE SORTO XXN MR TERZIC

PN274

Do you remember having much dealings with Alberto, at all, over those three days before the stoppage?‑‑‑Not necessarily, nothing specific, no.

PN275

Did you perhaps suggest to him that he should look at finding alternative work for the Boral workers, in case they weren't allowed to turn up on the Thursday and Friday?‑‑‑No, I don't specifically remember instructing Alberto to do anything. He's a more than capable operations manager and he would have worked out that if there is work elsewhere, he would have reallocated his resources.

PN276

But you don't know if he did that? He didn't speak to you about that?‑‑‑No.

PN277

No, okay. Then did you try and negotiate with Boral about finding a way in which the workers could deploy on the Thursday and Friday?‑‑‑No. Look, we were advised by Boral, I think it was late on the Wednesday afternoon, that they had made a position, so I hadn't had any conversations since the Monday with Neil, and obviously let the construction team on the ground automatically follow the directive.

PN278

So, you were pretty much hands off from your dealings on this from Monday? It was largely in Alberto's hands of what to do?‑‑‑Yes. To put it into context, I'm based in Perth.

PN279

Yes?‑‑‑I'm not in Melbourne, so – this project was in Geelong and the operations manager automates the crews in Victoria.

PN280

Did you have occasion to speak to Alberto?‑‑‑Sorry, you broke up a little bit then.

PN281

On a normal basis do you speak daily, or weekly or monthly, or - - -?‑‑‑Occasionally but not necessarily, on resources.

PN282

I don't get to that level of detail, or that of activities of our work crew.

PN283

So, after that you just had Melbourne based people to deal with, how well this should pan out for the rest of the week? Is that your evidence?‑‑‑Yes.

PN284

After your involvement?‑‑‑Yes.

PN285

Yes, okay, thank you. Then things came and went, and then there was – you're aware of the standing down?‑‑‑Yes.

*** JOSE SORTO XXN MR TERZIC

PN286

Really, the next way in which you had to deal with this was when Mario, using me as a representative, sent emails through to John Beever generally, saying that the stand down issue was now a matter Mario was putting in dispute, and there was an email sent on Friday, 25 March, early in the morning to that effect? Page 261 of the court book?‑‑‑Sorry, right. I haven't read this court book, so let me just try and figure out - - -

PN287

Sure?‑‑‑Page, go again?

PN288

Page 161. It goes over to the next page, 2?‑‑‑Yes, so this is the email that you issued to Craig and Alberto. Is that what you're referring to at 161?

PN289

Yes?‑‑‑Yes, not to myself though, to others, yes.

PN290

You didn't see that?‑‑‑No, it wasn't addressed to me, Mr Terzic. I think that I got it – actually, I'm not sure how I got that email into my inbox, but it was definitely not from the AMW.

PN291

Yes, okay. But eventually you got it and then you did see a further email where you were notified on page 160 of the court book, that was sent later in the day?‑‑‑Yes. Yes, sorry. Later in the day I believe he did forward a second email, an hour later or so.

PN292

Yes, and so what was going on here was that the matter was being pursued as a dispute, with some urgency. Did you get that impression?‑‑‑Based on the timeframes from 8.23 to 8.43, I sensed that there was an urgency on the AMW's end. I'm not sure why but it would appear that, going from the sequence of everything else.

PN293

Are you aware of the then prevailing John Beever Construction Agreement? Are you aware of its terms, generally?‑‑‑In terms of what, specifically? It's a very broad question.

PN294

Yes, well, are you aware of how the dispute procedure in that agreement worked?‑‑‑I believe so.

PN295

Yes, and so matters were supposed to be raised with the onsite representatives first, like supervisors first, before they're elevated up the chain?‑‑‑I believe that's correct, yes.

*** JOSE SORTO XXN MR TERZIC

PN296

Would you agree that's generally a sensible proposition if an employee on site has got a dispute about how his overtime was paid that it would be better to take it up with is supervisor than go straight to you, that that would be a more sensible way of dealing with that? Do you agree with that proposition?‑‑‑Well, typically if the dispute resolution process was adhered to accurately, the person that wants to raise the dispute, or the employee would go through the supervisor and then the project manager and then the operations manager and come up with a solution, similar to a recent discussion around payment – you get an email from the AWU if that's what you mean.

PN297

Yes, but given – the whole stand-down proposition was authorised by you, was it not?‑‑‑The instructions to stand-down was authorised by myself.

PN298

Yes, so really, the supervisor couldn't do much in those circumstances, could he, really?‑‑‑No, I think that we, I think we made a position that was within our entitlement and that instruction came down from myself to our operations manager and our supervisor, that's correct.

PN299

Yes, Mr Sorto, it's a slightly different proposition. If you, as the executive general manager say I authorise the stand-down, a supervisor or a leading hand can't really give a completely different direction and say, okay, I'll reverse the stand-down. That can't happen, can it?‑‑‑No.

PN300

So, really the matter then fell to you to decide whether the stand-down approach would somehow be reversed or dealt with differently. That's true, isn't it? It was really a thing for you to make a call on?‑‑‑But I think in terms of time – I think you're missing the timeframe, Mr Terzic. We're talking about an email on 25 March. The stand-down took place on the 24th and 25th. There's no way to provide support of (indistinct) going back in time to change that.

PN301

Yes, okay?‑‑‑Because it was after the fact.

PN302

But you eventually responded – I'm looking at page 158 and 159 of the court book?‑‑‑Is this opposed to stand-down?

PN303

This is about the stand-down. It was an email sent – sometimes, I'm not sure about how these times work, because you might have a different time stamp to me, because you're in a different time zone. So, when it says sent at 5.23 pm, it might have been received?‑‑‑Friday the 25th, the stand-down was on the 23rd, 24th and 25th. This is post the stand-down.

*** JOSE SORTO XXN MR TERZIC

PN304

Well, yes, it was post – the stand-downs had run their course by then and so, late on Friday you responded to the dispute raised by Mr Mario Pantalleresco. You went through me, being his representative?‑‑‑Yes, I responded on the Friday afternoon.

PN305

Yes, and by that stage, you'd made up – it was true John Beever had made up his mind, the stand-down had happened and that was – it couldn't be reversed and that the workers would not be paid. That was your position by then, wasn't it?‑‑‑No, that's not how it occurred, because it was Friday afternoon.

PN306

So, that's a matter for logic. You can't turn time back. So, the stand-down had occurred, and was there prospect for the workers to be paid for those four hours each, eight hours they were stood down? Were you contemplating paying the workers and Mr Pantalleresco for that time?‑‑‑I think we made it quite clear in our correspondence to the workforce and the (indistinct) that they would be stood down without pay.

PN307

Yes, and Mr Pantalleresco raising the matter as a dispute, were you going to reverse it on that happening?‑‑‑On what happening, sorry? I'm not - - -

PN308

Would you reverse the decision not to pay the workers, based on a different interpretation of the stand-down, by Mr Pantalleresco sending emails to you? Would that be enough to turn things around?‑‑‑I haven't received an email from Mr Pantalleresco.

PN309

Well, no, his representative, myself. So, that's the same thing?‑‑‑Sorry, are you referring to the email at page 160, I'm not too sure.

PN310

Yes, 150, the one on page 158 and 159?‑‑‑Yes, go ahead. What's your question? Whether I would consider reverting - - -

PN311

Reversing your decision to not pay Mr Pantalleresco and the others for the stand-downs on the mornings of the 24th and the 25th?‑‑‑No, I think that that email intimates anything like that.

PN312

But you've dug your heels in and ever since then, you've refused to pay the workers, based on a different contention about the stand-down. That's the reality, isn't it?‑‑‑I think that we took Fair Work in a certain way, which we thought is correct and that's why we did it.

*** JOSE SORTO XXN MR TERZIC

PN313

Okay, that's fair, okay. So, you haven't – the only way to resolve the dispute is to get an independent person to make a decision. That's the reality, isn't it?‑‑‑

PN314

MR AMENDOLA: I object to this line of questioning, your Honour, Commissioner. I mean first of all, Mr Sorto has not been taken to – to be fair to him, one should look at the second paragraph of his email. There's a whole lot of assumptions here. We are here because we are here. The issue of whether or not the dispute settlement procedure has been complied with, is a different issue, and really a matter of interpretation. Trying to put words into Mr Sorto's mouth about this. He's asked it on four different – in four different ways. I think the answer was that's not what that email says.

PN315

THE COMMISSIONER: Well, Mr Terzic, the email speaks for itself, doesn't it?

PN316

MR TERZIC: Well, the email speaks for itself, but it's material I say to find out from the witness, who really represents the position of the respondent, whether there was anything more that could be done to change the respondent's position on the stand-down. For some reason, he can't give a clear answer one way or the other.

PN317

THE COMMISSIONER: I don't know that he hasn't given a clear answer. The answer is no.

PN318

MR TERZIC: Okay, well if that's his answer, that's his answer, and that's what I was trying to obtain. So, we'll leave it there.

PN319

THE COMMISSIONER: Am I right about that, Mr Sorto?‑‑‑That's correct.

PN320

MR TERZIC: Thank you. I'll just take instructions for second. Thank you, I've checked with Mr Pantalleresco and that will end the questioning, thank you.

PN321

THE COMMISSIONER: Thank you. Any re-examination, Mr Amendola?

RE-EXAMINATION BY MR AMENDOLA [11.43 AM]

PN322

MR AMENDOLA: Just briefly, Commissioner. Mr Sorto, can I ask you to turn to page 117 of the court book, which is an email behind tab 16?‑‑‑I've got page 117 open and is from Barry Terzic.

*** JOSE SORTO RXN MR AMENDOLA

PN323

Yes, so that's responding to the email that you've been asked questions about, Mr Sorto. Mr Terzic indicates that given that you're defending the position of JBA, further party party talks won't give a resolution. He then goes on to say we're going to refer it to either, to the board. You see that?‑‑‑I can see that he's – the last item in his email saying that he's going to refer it to the Administrative Disputes Board, or Fair Work Commission.

PN324

Did you just take him at his word when he said that?‑‑‑Well, we're, so yes. I understood that that's exactly what he was going to do.

PN325

Thank you, no further questions, Commission.

PN326

THE COMMISSIONER: Thank you Mr Amendola. Mr Sorto, can I thank you for your attendance here today. You are now excused as a witness?‑‑‑Thank you Commissioner. Thanks guys.

<THE WITNESS WITHDREW [11.45 AM]

PN327

THE COMMISSIONER: Mr Amendola, as I understand it, that's all the evidence on behalf of the respondent.

PN328

MR AMENDOLA: That is correct, Commissioner.

PN329

THE COMMISSIONER: All right, what I propose to do, and I'll hear both from Mr Terzic and Mr Amendola, that we'll have a half hour adjournment and then we'll come back for any final submission.

PN330

MR AMENDOLA: Thank you, Commissioner.

PN331

THE COMMISSIONER: That convenient, Mr Terzic?

PN332

MR TERZIC: Yes, I'll just make sure that we're having a half hour adjournment, then we'll come back with final submissions.

PN333

THE COMMISSIONER: Yes, yes.

PN334

MR TERZIC: At 12.15 we'll be back, then.

*** JOSE SORTO RXN MR AMENDOLA

PN335

THE COMMISSIONER: We're adjourned until 12.15, thank you very much.

PN336

MR AMENDOLA: One thing, Commissioner, I've got – I'm supposed to be dealing with a client in respect of an audit in this Committee, in the middle, at about 1.23 to 1.28 I'm told. That should – the hearing is the hearing, don't misunderstand me and I will try and be relatively brief when I'm sort of putting my submissions.

PN337

THE COMMISSIONER: Look, look, we're coming back at 12.15. I expect the matter to be finished by 1.00 pm. You've made – both parties have made extensive written submissions. I've read those, it's just an opportunity for you to supplement them very very briefly. We will be finished by 1.00 pm.

PN338

MR TERZIC: Commissioner, while we're in dispute, behind the scenes, the parties have acted in a way to facilitate a smooth presentation. If Mr Amendola needs to leave to attend to something important, I'm more than willing to consent to an adjournment for him to do that, and we'll come back.

PN339

THE COMMISSIONER: No, I expect that we will recommence at 12.15 and we will be finished by 1.00 pm.

PN340

MR AMENDOLA: Thank you, Commissioner.

PN341

MR TERZIC: Thank you, Commissioner.

PN342

THE COMMISSIONER: We're adjourned.

LUNCHEON ADJOURNMENT [11.47 AM]

RESUMED [12.17 PM]

PN343

THE COMMISSIONER: Parties, we're resumed. Mr Terzic.

PN344

MR TERZIC: Yes, I think I heard that I'm on.

PN345

THE COMMISSIONER: Yes.

PN346

MR TERZIC: So, Commissioner, first I just refer to the directions you issued on this matter and just quickly say how the issues you want addressed are being addressed. The first one was the question to dispose of the matter. The original question that we suggested has been superseded by a refinement by the respondent and we're happy to proceed on that basis.

PN347

THE COMMISSIONER: Yes.

PN348

MR TERZIC: In answer to that question, we'll resolve the dispute. Thus, for the remedy, which we say would be recrediting of Mr Pantalleresco's RDO balance. There doesn't seem to be any dispute about that is how things would occur. Then we moved to jurisdiction. Theoretically, there's myriad issues there.

PN349

Two, that immediately jump out. One that has been referred to in submissions and obviously you would pin the cross-examination of Mr Sorto to it, is compliance with procedure. Without labouring the point, you will see that the applicant accepts the compliance with the dispute's procedure is required in the preliminary steps to arbitration before the Commission would be seized of jurisdiction and that's been address.

PN350

But the other thing that the parties have found themselves in a bit of a predicament is what I've referred to before as the Simplot effect. The agreement under which all of these events transpired has now been superseded by another agreement. The parties were alive to how that would impact on these proceedings in the new agreement. The present agreement was going through the approval process, and the parties are content if you're content, just to say that that issue is not being raised as an issue or jurisdiction and we would simply as the Commission to proceed to issue answers to the relevant questions. If that is done there'll be no further issue on that, if you give that after dealing with the dispute procedure, jurisdictional point.

PN351

On that basis, the parties don't intend to address you further on how that might occur if you are minded just to proceed on that basis, that will truncate proceedings.

PN352

THE COMMISSIONER: Yes. Okay, Mr Amendola, you're content with that?

PN353

MR AMENDOLA: Jurisdiction is jurisdiction, Commissioner. But Mr Terzic sets out accurately the agreement that's been reached between the parties on that point to try and coerce the matter forward.

PN354

THE COMMISSIONER: Yes.

PN355

MR TERZIC: It just makes things more efficient all round, we suggest. Thank you, Commissioner.

PN356

So, then we really have to I suppose, deal with the dispute procedure issue which I'll try and deal with relatively briefly. We'll then go to the merits and the merits really engage with two terms. Usefully employed is the main one. The second one is whether the employer was responsible for the events that led up to the stand-down. That is something that must be dealt with. I concede straight away that the evidence has not shown that you could hold the respondent responsible for the stand-down occurring. It seems to – the evidence seems to show that the relevant managers, Mr Sanchez and Mr Sorto did try to secure ongoing work with Boral. Indeed, it would have been in their interests to have Boral continue to employ the workers on 24th and 25th. It would have been profitable for them. It would have been better for their relations. It seems like Boral went off anyway, and decided to affect no working days.

PN357

So, apart from the dispute settlement procedure issue, it's usefully employed, that seems to be the fulcrum upon which this matter will be decided. I'll address you further on that. But I might just turn to the dispute settlement procedure matter which was not dealt with in any great depth in the applicant's material in chief. It was raised by the respondent in its reply submissions and there were – the matter was dealt with in more detail when the applicant was called on to reply. I'm not going to read from them, but I did cite two decisions of the Federal Court of Australia, Energy Australia Yallourn v Nurse Crewing and the commentary and the citations for that can be found at page 188 of the court book.

PN358

I do note that appeals were made against those decisions at both first instance decisions, the appeals were unsuccessful in so far as they had anything to do with the relevant principles that are cited. The propositions that in regards for the Commission to take from those cases, is that a dispute in an enterprise agreement should be applied in a practical manner. The whole purpose behind a dispute procedure is to avoid complex litigation and forensic manoeuvring and just allow the parties - - -

PN359

THE COMMISSIONER: Mr Terzic, one of the purposes of a dispute resolution clause is to provide the parties with an opportunity to resolve the dispute at its local level, without it even coming before me.

PN360

MR TERZIC: Exactly.

PN361

THE COMMISSIONER: And it seems the applicant didn't do that.

PN362

MR TERZIC: We take issue with that, because the applicant promptly, in all of the circumstances – well, he was stood down without pay, raised the matter several times, both at the workshop when the stand-down notice was first issued, and then on the Friday, searching around trying to find the local supervisor, with whom he could deal with this matter. But this is the point that was raised in Energy Australia. It would be of limited value for Mr Pantalleresco to try to argue about what was going on with the local supervisor. The evidence is that Mr Sorto had already made up his made that the stand down was taking place.

PN363

What on earth the local supervisor could do to somehow change that course, leaves us perplexed. It was a directive from senior management to stand down and for Mr Pantalleresco to sit down and speak to his leading hand, and say how can we fix this, leaves Mr Pantalleresco, frankly speaking, bewildered, because there would be no utility in that, whatsoever. Whatsoever, a decision was made at a higher level - - -

PN364

THE COMMISSIONER: Mr Terzic, Mr Terzic, calm down, calm down. At the time, that this occurred, the applicant did not know that his supervisor was without power in the matter. He didn't know that.

PN365

MR TERZIC: Well, he - Mr Pantalleresco had raised the prospect of doing some sort of work at the workshop on Thursday morning and he was rebuffed there.

PN366

THE COMMISSIONER: Not by his supervisor.

PN367

MR TERZIC: Well, in some respects, if he was at the workshop, the workshop coordinator would then de facto be his supervisor, but at any rate, Mr Sanchez was there and there seemed to be no yielding, no movement, no going anywhere in all of this. Now, the disputes procedure says that in the event of a lockout, things must be progressed smoothly. Theoretically, if this is not a stand-down, it's a lockout. Workers have been locked out of doing work for which they are ready, willing and able to perform. There is some degree of urgency in all of this.

PN368

Mr Pantalleresco, the applicant has tried to move things along quickly, and to go through a frustrating step of speaking to his immediate supervisor, obviously that would yield that result.

PN369

THE COMMISSIONER: Mr Terzic, the point I make and I don't know that you've addressed it, is that at that particular point in time, the applicant could not have known that it was going to be a frustrating exercise to speak with his supervisor. There seems to be no explanation why he didn't properly follow the dispute procedure which, having regard to the position he holds, he would have known about.

PN370

MR TERZIC: Well, there's a couple of points to be made in rebuttal to that proposition. Firstly, if it was a dispute about something like an error in the pay, a dispute about provision of safety boots or about which work was to be performed, the supervisor is there and it's appropriate to go firstly to the supervisor, rather than elevate a dispute to senior management straight away. That is a practical, sensible way in which one would engage with the dispute's procedure. If we were here with a dispute about a low-level matter, where the relevant supervisors were not engaged with, it would seem that we've gone too far too quickly, and missed steps which could have been of practical use in resolving the dispute.

PN371

Here, there was a directive from a very senior manager. And nonetheless, in Mr Pantalleresco pursuing the disputes procedure, because at the earliest stage upon which he got union representation, one of the first things he did, and this is in the evidence, was he asked that the relevant supervisors, who could be dealt with be identified and so he would have the opportunity to contact them. I ask the Commission to look at the court book on pages 119, 120 and 121.

PN372

THE COMMISSIONER: Okay, just bear with me. I've got 119 in front of me.

PN373

MR TERZIC: Go to page 120, please, Commissioner.

PN374

THE COMMISSIONER: Yes, I have that.

PN375

MR TERZIC: Go to the bottom of the page, the last full paragraph. It says there:

PN376

The AMWU is the representative for this group and as an industrial officer, I am currently the AMWU officer acting as the representative. I note that the procedure begins with employees concerned first meeting with referring with their immediate supervisor and genuinely attempting to resolve the dispute. Mario instructs me that his immediate supervisor and that of the other disputants would be Steve (indistinct) or Craig Nichols. Just in case this is not right, please indicate who is the disputants' immediate supervisor and arrange a meeting as soon as possible and no later than by 11.00 am on the 25 March 2022.

PN377

So, that was just a question of identifying who the supervisors were and arranging a meeting. Given that Mr – at the time this was sent, Mr Pantalleresco was ready, willing to work, and he was deprived of being able to go to work and do his work, he was not in the proximity of the supervisors. He needed to get to them soon. If he was on the job, he could have walked up and asked them. He was not there; he was removed from the job.

PN378

But that was followed up; that was followed up. If one goes to page 119 of the court book.

PN379

THE COMMISSIONER: Yes, I have that.

PN380

MR TERZIC: Yes. 'Good afternoon', sent to various of the respondents' managers.

PN381

THE COMMISSIONER: Why does it say good afternoon. It's sent at 9.43 am. It's sent like an hour and 10 minutes later.

PN382

MR AMENDOLA: I think the answer to that, Commissioner, is that there's a time difference. I'm sorry to interrupt my friend, between Australian eastern standard time and Australian western standard time. So that for example, I think 9.44 am is actually 12.43 pm western standard time, and just like I think there's an email from Mr Sorto which went at 5.23 pm, Australian western standard time, it wouldn't have arrived in Melbourne, I'm not sure whether in a technical sense, arrive until 8.23 pm. So, I think that explains the differences.

PN383

THE COMMISSIONER: No. Well, Mr Terzic, you send this at – it's at the bottom of page 119, it says 25 March 8.23 am. Is that sent at 8.23 am eastern?

PN384

MR TERZIC: I expect it would have been a few hours after that. This is how it prints out because of the different time zones.

PN385

THE COMMISSIONER: So, this was printed out on WA time?

PN386

MR TERZIC: It looks like it, because otherwise the whole thing doesn't make sense.

PN387

THE COMMISSIONER: But in any case, the email at the top of 119, is sent an hour and 20 minutes later.

PN388

MR TERZIC: Yes. So, at the end of - - -

PN389

THE COMMISSIONER: I don't think you can complain that people haven't responded. It's only been an hour and 20 minutes. They're not at your beck and call.

PN390

MR TERZIC: Well, all that we – what was required was that Mr Pantalleresco, as I said, was in a real predicament. He was trying to be able to get to work before the protected action took place. And it said that the dispute is being pursued along a tight time frame because it's been alleged that you were engaged in an unlawful stand-down and thereby a lockout, which would be prescribed under the agreement, clause 32.6. It's also the sort of matter that can be dealt with by an application under the Fair Work Commission's stop orders, under section 418. There was always a tight time frame applied when there is what could be unprotected industrial action taking place. That could have been what was occurring at that point because the workers were not being allowed to work.

PN391

The agreement - - -

PN392

THE COMMISSIONER: I'll just stop you there, because does Mr Nichols or Mr Maleck reply to this?

PN393

MR TERZIC: No.

PN394

THE COMMISSIONER: Never.

PN395

MR TERZIC: No, no. They didn't – then it said that the procedure should be followed in good faith without unreasonable delay. Well, given that there could well have been unprotected industrial action taking place at that very moment, these sort of time frames are not unreasonable. Commissioner, I've worked for a trade union for many years and once workers take place, or union members take place in unprotected industrial action, the response is usually very close to immediate. Very close to immediate, normally within a matter of hours, letters of demand are being sent out, alleging that work is unlawfully stopped. It would be most unfair to expect that unions apply to these tight time frames in these circumstances, but employer can luxuriate over the whole thing and respond at their own choosing.

PN396

The agreement is written that way, the agreement is written that way to expedite things when there is a prospect of unprotected industrial action and that's why this thing was pursued quickly.

PN397

THE COMMISSIONER: Yes, all right, I understand.

PN398

MR TERZIC: That's a reasonable timeframe.

PN399

THE COMMISSIONER: I understand the point.

PN400

MR TERZIC: In those circumstances.

PN401

THE COMMISSIONER: I understand the point; I understand the point. Move on.

PN402

MR TERZIC: Thank you. So, given that the agreement contains the edict there, sensible time limits must be allowed for the completion of various stages, however the parties must cooperate to ensure that the dispute procedure is carried out as quickly as possible. Then I said, all that's been asked for so far is the appropriate person in JBA, Mario, and the others, to call me to attend to deal with the dispute. This has not happened in over four hours – the relevant period there would have been four hours, which I content was an unreasonable delay. Moreover, the time limit I propose is sensible, given that we must cooperate to ensure that the dispute's procedure is carried out as quickly as possible. So, therefore, by 2.00 pm today.

PN403

And it is noted if party to a dispute fails or refuses to follow any step in this procedure, the non-breaching party to the dispute will not be obligated to continue through the remaining steps in the procedure. So, here is Mr Pantalleresco, through his representative, just trying to find out who it is he needs to speak to and to get that person to be in contact as promptly as possible. That's what was being asked for. That request was never met, because what then happened, later that day, and looking at page 117 of the court book, you'll see the response comes straight from the top.

PN404

So, the effort to engage with the local supervisor made in good faith, pursued with two emails in a tight situation, was simply not complied with by the respondent. So, if there's any failure to comply with a dispute's procedure in this respect, it falls to the respondent, and not to Mr Pantalleresco.

PN405

THE COMMISSIONER: Yes, Mr Terzic, I understand the point. Please move on.

PN406

MR TERZIC: So, in all of those circumstances, and given the most signatious remarks by Justice Bromberg in Energy Australia, noting how trying to engage with a local supervisor, when there's been a corporate level decision made. And given the remarks of Justice Colburn in Maersk – I'm looking at page 189 of the court book, that these things should be dealt with in a practical way, it's out submission that Mr Pantalleresco has attempted to faithfully, methodically, comply with the dispute's procedure. At any rate, it seems to me, it would be open for the Commission to make a finding based on the evidence of Mr Sorto, it was all pointless anyway, because the respondent has dug its heels in and had decided that the stand-down – well, at that stage, the stand-down had taken place. It was just to see what could be done at any stage, trying to unscramble the egg and reverse it and go back to the supervisor and say pay us; it just would not happen. So, further submissions, and what I've just alluded to here is remarked on and amplified in the written submissions and I would commend them.

PN407

On that point, I now turn to the issue of the merits. Probably a useful starting point of all of this is to give some colour and purpose to the notion of what a stand-down provision is meant to do and how it should be interpreted – the purpose and how it fits into employment. In that respect I rely on the comments of Justice Sharp in re Distilleries Award and the relevant passage there is in the court book at pages 67 and 68.

PN408

THE COMMISSIONER: Yes.

PN409

MR TERZIC: So, the passage that I've reproduced from re Distilleries Award, says:

PN410

I do not accept the contention that standing down employees without pay should be an employer's right if that were the most convenient way of avoiding economic loss. The concept that it is provocative to use labour at will, has no place in western society for many decades. It has been replaced by the concept that the use of labour, of human beings, is a privilege according to management on deemed terms. One of those terms is that reasonable security of earnings be assured to the labourer. There may, however, be circumstances when both the employer and those employed would want to avoid the extreme measure of terminating employment. It is for this situation that stand-down provisions should exist and should contain adequate safeguards.

PN411

I end the quote there. The adequate safeguard is the usefully employed edict. In that respect, further commentary on stand-down usefully employed, can be found in some other judgements, both of which I intend to read from of the Federal Court of Australia. I did email to chambers and the respondent an authorities book, if that could be made available.

PN412

THE COMMISSIONER: Yes, we have that.

PN413

MR TERZIC: First case I want to read from is Townsend which deals with a standing down by Holden, the well-known car manufacturer on a production line in South Australia. They manufactured, I think, a couple of vehicles, the Holden Commodore and the Holden Gemini. Then due to strike action, heater boxes for these cars were unavailable. So, obviously, the cars could not be assembled. I suppose you could assemble them without a heater box, but it would be a defective car. When all of this transpired, in that judgment there's a good account given of the efforts made by Holden to try and find an alternative supply of heater boxes. It's almost tragic how things transpired. They did try to obtain sources from overseas. They found some in Germany, I think it was, and then there was a strike by the relevant airline. They just couldn't get them. They made a big effort.

PN414

But then in looking at all of this, the court seemed to be willing to take note of the fact that at the time, there was falling sales for the relevant vehicles and I'm looking at the court book pages, page 128 where that was noted. So, that was the back story. Over page 131 and 132, there was some dispute around evidence of proof and the mechanics of what transpires in a stand-down situation. I think it's accepted the evidence of proof falls to the respondent in this situation. That was what was found in Townsend by Justice Morling. The case happens, is that once you've got workers who are ready, willing and able to present for work, there is then a duty on the employer to provide those employees with work. The stand-down provision, industrial instrument, it's now in the statute, but here it's in the industrial instrument, can be engaged.

PN415

So, unless that clause can be engaged, the consequence of that is the employees were then ready, will and able to work. If they are not provided with work, they are then entitled to wages. That is especially made on page 131. That was the mechanism by which, or the prism through which the decision was propounded. On this point, I just thing there's a relatively neat passage on page 132 about half way through the page on the second full paragraph, probably about two thirds up the page:

PN416

I cannot think that it was the intention of the draftsman of the Award that an employee should be required to prove that there was useful work for him to perform on the days when he was stood-down, i.e. that he was wrongly stood-down. The stand-down provision in the Award is not part of the prescription of the conditions under which employees become entitled to be paid their wages. Rather it is in the nature of an exception to G.M.H's prima facie liability to pay a week's wages to employees who are engaged on a weekly basis.

PN417

Given that the stand-down provision under consideration in that case and that in this case, are almost identical, that statement of principle, I submit, holds in this matter.

PN418

Then turning to page 134, some consideration of usefully employed is given and I just point out at page 136, there was a reference made by counsel for the union in that matter, Mr Ryan, as to various authorities and there referred to is a case Re Technical Staff (TAA) Award, and there's an extended quote from that decision at page 145. Going to about half way through the second paragraph, the extended quote ends up with this, and it's about at point 7 of the page:

PN419

I point out that the provision does not confer upon an employer 'a right to deduct payment ... where it would be in the employer's financial interests to do so' but 'a right to deduct payment for any day an employee cannot be usefully employed ...'

PN420

And I end the quote there. So, the point is, it might not be in the employer's financial interest to have the employee carrying on work. The test is whether the employee can be usefully employed. Now, the proposition that face the respondent here, is of course it would have been in the respondent's financial interests to have these workers performing work at the Boral site. It would be in their financial interest because Boral would have to pay them. That would have been the ideal outcome, if Boral had decided to engage the workers for the two mornings concerned, we wouldn't be here. There would have been extra money into the respondent's coffers, things would have worked out in the optimal possible way.

PN421

But once that ordinary course of events, that gainful, profitable, economically viable situation is deprived, the test then becomes of useful employment. In looking at that, after giving much consideration, Justice Morling comes to his more succinct conclusions on that, and I turn to page 137, the first paragraph:

PN422

In my opinion the question whether an employee cannot be usefully employed because of a strike is largely a question of fact. No doubt, as a matter of law, some considerations will be irrelevant in determining the question of fact. But I reject the argument that the economic consequences to the employer are to be ignored in deciding whether employees can be usefully employed. I accept that it is a material matter that work has been scheduled to be done by an employee on a day when, in fact, he is stood-down.

PN423

So, we accept, Commissioner, that the test usefully employed means there must be some value in the work; there must be some benefit to the employer. The employer, for example, couldn't simply say, well, I've got to pay for this labour, I might as well have them do something. I'll send them to the park across the road and they can pick up trash or I might get them just to walk around the block for a few hours, because I've got them under contract. No value to anyone really, or maybe some value in picking up trash to the broader society, but no real benefit to the respondent. There must be something with some meaning to it.

PN424

As a counter-balance to that, going to the next paragraph, I quote:

PN425

What I have so far said does not mean that c.6(g)(i) of the Award gives G.M.H. the right to unilaterally stand-down its employees whenever there is a strike and it is convenient for it to do so. An employee may be able to be usefully employed although, as a matter of convenience, G.M.H. would prefer him not to be at work. Questions of fact and degree will always be involved in determining whether, on the one hand, an employee cannot be usefully employed or whether, on the other hand, he can be usefully employed but it is not convenient to G.M.H. to employ him.

PN426

So, we suggest here, that on a hearing of all of the evidence, it was certainly convenient for the respondent simply to say just don't turn up, go home, don't work. That was the convenient way out. Didn't require any logistics, any planning, any organisation. It was simply a matter of sending out an email, you're stood down, don't turn up for work. It was below par, below test. They simply did not do enough. There was more they could have done and we say the evidence shows that.

PN427

We say that Mr Sanchez's evidence as to what steps he did on the Monday, Tuesday and Wednesday preceding the stand-down to find alternative work, was simply not convincing. We accept his evidence that he did engage with Boral in trying to find out what was going to happen, and he made the necessary enquiries there, but his evidence that was just given today viva voce, saying he'd made some calls to various sites and he didn't want to put his whole life in the statement, was not convincing. We say that evidence should be rejected.

PN428

If he did make real positive steps to try and find other work for Mr Pantalleresco elsewhere, he would have put it in his statement. It was our intention that was a recent invention of Mateo Sanchez to try and bolster his evidence and make his case sound better than it really is or really should be found to exist by a fair consideration of the evidence.

PN429

Some further guidance on how stand-down is applied in practice can be found by reading further through Townsend and therein, the court goes through the various operations, and I'm not going to go into extensive detail. Firstly, starting at page 137, the court looked at the main assembly plant where one could imagine, I think it was thousands of workers on a production line, putting together the relevant pieces to make a car. Obviously, if they don't have all the pieces, they can't make cars, there's nothing really else for that body of workers to do. So, there was found to be a lawful stand-down for those workers. Then the various other operations are looked at throughout.

PN430

Page 138, just referring here to the subheadings. The automatic transmission plant at Woodville, no, lawful stand-down. The hardware plant at Elizabeth. Well, that was a little bit more nuanced. Hardware plant, what does that do, that's dealt with at page 139? 'Items such as generator brackets, engine mountings, brackets, air cleaners, ball joints, rocker valves and door frame were manufactured at the plant.' This was looked over and then it was noted, and I'm at page 141, just before the subheading:

PN431

Prior to March 1981 G.M.H. had taken a decision to transfer the oil filter manufacturing operations to one of its New Zealand plants. The transfer was scheduled to take place late in 1981. The transfer involved dismantling the appropriate equipment at Elizabeth and shipping it to New Zealand. Hence G.M.H. knew that, for a time, there would be an interruption to the production of oil filters.

PN432

This would mean that production would have to cease for a while and so, it appeared that there would be a case that production of all filters should have continued so there would be an necessary inventory to allow for the transfer to take place without a shortage of oil filters. So, in that respect, there was useful work and the stand-down for that body of workers was found to be unlawful and those workers would have been entitled to their pay.

PN433

Further operations are referred to throughout, immediately after the issue with oil filters. There's a subheading Trim Fabrication which would be like door linings, et cetera. It was found that it was not viable there, namely because there was already a significant backlog. Then extensive consideration starting at page 143, is given to the central warehouse at Elizabeth. Therein, it appears that there was certain parts that needed to be oiled to prevent them rusting. That commentary starts at page 144 and goes over the page to 145. Therein, at page 145, evidence was recounted where it said that the oiling program was not due to take place on the stand-down days, but the court found it was due to take place later. It could have been brought forward, the oiling program could have been brought forward to allow for those workers to be usefully employed and for that reason, those workers were not lawfully stood down.

PN434

At this juncture, I think there's a parallel here with what the evidence is of Mr Pantalleresco, what emerged in cross-examination with Mr Sanchez about various pieces of equipment that John Beever retained in the workshop and in the containers for site work. We say there's a strong parallel, making sure that parts don't turn rusty, that they're maintained, that they're kept in good order according to a particular schedule. Could have been brought forward, if for example, the equipment that Mr Pantalleresco refers to as being inside these containers. The best evidence before the Commission is that the equipment in these containers often needs to be sorted out, checked, issues of rust dealt with, so that once they're delivered on site and it was accepted that there was a recent delivery of a container on site for a job at CUB, that work can proceed quick and promptly with chain blocks, slings, et cetera, all in good order.

PN435

When Mr Sanchez was cross-examined on this, he was deficient in his knowledge of that part of the business's operations. If the respondent had seriously thought about finding alternative work, if they'd engaged with Mr Pantalleresco which they did not do, which they concede they did not engage and consult with Mr Pantalleresco. If they were to have asked him on the Monday or the Tuesday what else can you do, Mario? Where else can you be deployed? Have you got any ideas? Mr Pantalleresco might have fed them these ideas. I'll go up to the container yard, those containers are always full of equipment that's bent out of shape, rusty, not tagged, not up to date. All of that could have been done if the respondent had properly discharged the function that falls upon it when it anticipates that's there to be a stand-down. The rumours were strong, the current was that the work was not going to be available on Thursday and Friday and they failed to take those sort of measures that could have found useful work. Their obligation was function.

PN436

Just here, somewhat of a digression, the other alternative that was available to the respondent, in the context of industrial action taking place, or having taken place, they could have locked them out. They could have locked them out. They wouldn't have had to bother to justify it. It's simply a matter of sending a letter out saying you are locked out for those two mornings. They could have done that. It would have been very hard to impugn that action. So, one might question, well, why didn't they? Well, if they did, that would have opened up the scope to employee response action. It means the three day notice period is no longer required. Ballot authorisation for different species of industrial action is no longer required.

PN437

So, they took – they sneakily tried to shoehorn the stand-down option when they just did not meet the required test to find useful work. They took the convenient, strategically beneficial way of dealing with this, rather than genuinely trying to find out alternative work. And let me put it another way, Commissioner. Just say, John Beever was put on notice, there's going to be a power outage on Thursday and Friday. There'll be no electric power, work at the site can't take place, and they knew that.

PN438

One would suspect they would have tried a lot harder, a lot harder to try and find alternative work. It appears that the efforts they made were driver firstly by what's convenient for them, either getting the work, getting the work at Boral, making money, or if they can't make money, they pay out Mr Pantalleresco and say don't turn up. If you're going to take half the day off, which you're lawfully entitled to do, don't turn up. We're not going to try and fit you in anywhere. That explains the rather dismissive way he was dealt with, when he turned up, ready, willing and able to work at the workshop.

PN439

Mr Sanchez accepted that. Yes, if we had some more time, if we had a week, we could have organised something. Well, he did have time, and they didn't. They took the easy, convenient, sneaky, tactically superior way forward. It just can't be countenanced on the basis of the law. It can't be countenanced; it's not sufficient.

PN440

Going on further, there's other examples given in Justice Morling's decision. Page 145 there was non-urgent work which could have been done in the central warehouse.

PN441

THE COMMISSIONER: Mr Terzic, sorry to interrupt you, but when I said we were going to resume at 12.15 and finish at one, I did not anticipate that you would take up the entire time in your submissions. How much longer do you need? Mr Amendola, he needs to go somewhere in a moment.

PN442

MR TERZIC: Yes, look, I'm perfectly to have an adjournment and come back, but I would say between 30 minutes and an hour.

PN443

THE COMMISSIONER: You've got between another 30 minutes and an hour?

PN444

MR TERZIC: Well, I could try - - -

PN445

THE COMMISSIONER: Mr Terzic, I've read your submissions. To be fair, you're not adding much to them. I understand what you're saying.

PN446

MR TERZIC: Well, there's more to be addressed. I don't want to leave important considerations unaddressed, Commissioner.

PN447

THE COMMISSIONER: No, I issued directions for the filing of submissions. If you didn't put in full submissions, and you had an opportunity to put in submissions at the beginning and reply submissions, if you're falling short in your written ones, you don't get an opportunity now. These are meant to be short, supplementary submissions having regard only to the evidence that we've heard this morning. Not a third bite at the cherry.

PN448

MR TERZIC: Well, I'm referring to the evidence – the point is, the submission was made, Commissioner. This is a case that's going to turn on what transpires out of cross-examination, and we've heard a lot of cross-examination, particularly about what I submit is the failure of the respondent to address its mind and that needs to be fully - - -

PN449

THE COMMISSIONER: I've heard the submission, thank you, Mr Terzic. You don't need to take it further. Mr Amendola, what are your time constraints, please? Sorry, you're on mute.

PN450

MR AMENDOLA: I've got to get online at about 1.20 and I'm told that I'll be on from 1.23 to 1.28. There could be five to 10 minutes either way in relation to that. I can say that I would be a lot more brief and perhaps less heated when I get to put submissions, Commissioner.

PN451

THE COMMISSIONER: So, you would be back here at about 1.30 or so, would you?

PN452

MR AMENDOLA: Around 1.30, 1.35.

PN453

THE COMMISSIONER: Well, Mr Terzic, you've got until 1.20 to finish your submissions. Go. You're on mute.

PN454

MR TERZIC: The next case to be referred to is the carpenters and joiners' case and there's some very useful commentary there.

PN455

THE COMMISSIONER: You've referred to that case in your submissions. I've taken a note of that. You don't need to take me further to the case, thank you. Move on.

PN456

MR TERZIC: I'll just say this. In deciding this matter, you look at the circumstances of each employee separately. That's decided in carpenters and joiners.

PN457

THE COMMISSIONER: Yes, I've only got one employee before me.

PN458

MR TERZIC: Pardon? Yes.

PN459

THE COMMISSIONER: I've only got one employee before me, so I'm only looking at one.

PN460

MR TERZIC: In that case, and as said in submissions already, but I'll just reinforce this point.

PN461

THE COMMISSIONER: No, do not repeat stuff. It's just – I'm not assisted by you repeating things that are in written submissions. You've referred to the case. It's on page 70 of the court book. There's an extract there. I understand it; move on.

PN462

MR TERZIC: Well, it ties in with what's come out in the evidence to date, and that is just as in carpenters and joiners, the work – rather than building houses – so rather than building plant, the workers there could have been deployed making duckboards, which is what I say is tantamount to the work that was – that could have been done with the containers and the workshops as well.

PN463

The next thing is something that I think I'm called upon to deal with because it's a supplementary submission on a different point raised by the respondent. That is the concept of stand-downs under the clause in questions only applying for the whole day, implying that the clause has no operation for a part day stand-down, and it was a part day stand-down. I can put that in contradiction to the statutory regime for stand-downs in section 524, which allows for stand-downs on an infinitely variable timeframe. It could be for five minutes or five days.

PN464

The respondent it appears has looked at this, and this was a concept referred to in carpenters and joiners, and then said, well here's the silver bullet. It was a part day stand-down, the stand-down clause does not engage therefore, our case folds and collapses and that's that. But unfortunately for the respondent, it's got that silver bullet and used it to shoot itself in the foot, because it's the opposite conclusion that their case drives to. That is, if you can't engage the stand-down clause, the stand-down clause then gives an excuse for the employer not to pay wages.

PN465

If the stand-down clause cannot be engaged, they have no excuse not to pay wages and Mr Pantalleresco must be compensation. So, if that is the argument they're going to put, we say it applies in the way we suggest and they have been found that there was no legal basis in which to enact a part day stand-down. They must pay the workers for the four hours on the Thursday and the Friday, and that's the decision that must be arrived at by this Tribunal. They've shot themselves in the foot and that's the conclusion that that technical objection drives to.

PN466

If the Commission pleases.

PN467

THE COMMISSIONER: Thank you we will adjourn till 1.40.

PN468

MR AMENDOLA: Commissioner, if you would indulge me, because I will not be as long. I will try and make and finish my submissions before 1.20 if I can.

PN469

THE COMMISSIONER: Yes, all right. Can we just start Mr Amendola with this point about the non-compliance with dispute resolution clause?

PN470

MR AMENDOLA: Yes.

PN471

THE COMMISSIONER: Who was the applicant's supervisor with whom he should have engaged?

PN472

MR AMENDOLA: Mr Maleck.

PN473

THE COMMISSIONER: Right and so Mr Terzic emails Mr Maleck.

PN474

MR AMENDOLA: Mr Terzic emails lots of people.

PN475

THE COMMISSIONER: Well, tell me about Mr Maleck.

PN476

MR AMENDOLA: Emailed a number of people which included Mr Maleck.

PN477

THE COMMISSIONER: Okay, so where's Mr Maleck's response?

PN478

MR AMENDOLA: It's not there, Commissioner. But can I start with - - -

PN479

THE COMMISSIONER: No, no. I'm telling you now, Mr Terzic was properly the representative of the applicant. He has emailed the applicant's supervisor and from what I can see, the supervisor doesn't respond to him at all. Is that right?

PN480

MR AMENDOLA: Didn't respond to him until Mr Terzic – didn't respond to him at all, because Mr Terzic then sends another email to which Mr Sorto does respond.

PN481

THE COMMISSIONER: Well, why didn't Mr Maleck respond?

PN482

MR AMENDOLA: Well - - -

PN483

THE COMMISSIONER: Where's his evidence?

PN484

MR AMENDOLA: Well, there is no evidence from Mr Maleck, Commissioner.

PN485

THE COMMISSIONER: Why? Did he not take this seriously?

PN486

MR AMENDOLA: Commissioner - - -

PN487

THE COMMISSIONER: Mr Amendola, don't take this point any further. I'm not with you.

PN488

MR AMENDOLA: Well, there are two elements. There's compliance with step one, compliance with step two.

PN489

THE COMMISSIONER: Well, Mr Amendola, the applicant sought to deal with step one. There's no engagement at all from the supervisor, that's a failure to respond. They're not bound by it any further. Move on. I'm not with you.

PN490

MR AMENDOLA: I'll just make – if I can just make this point, Commissioner, and that is this attempt to comply with the dispute settlement procedure is an artifice. They keep on talking about a red hot urgent dispute. One, on 25th - - -

PN491

THE COMMISSIONER: Mr Amendola, I'm not with you. If there had been a single response from Mr Maleck, I might have been with you. But there's not; I'm not with you. Move on.

PN492

MR AMENDOLA: In terms of step 2, or the procedure, Commissioner, M Terzic writes to a number of people and apparently can't believe that it is Mr Sorto who responds. Mr Sorto does respond. He calls out the artifice about the way in which they're trying to move through the dispute settlement procedure. He goes on to say, I expect to be able to respond to you more comprehensively next week, when I have the proper opportunity to do so.

PN493

If one looks at page 117 of the court book.

PN494

THE COMMISSIONER: Mr Amendola, stop belabouring this point. I'm just not with you at all on this point.

PN495

MR AMENDOLA: Commissioner, moving on to what's been dealt with by our supplementary submission.

PN496

THE COMMISSIONER: Yes.

PN497

MR AMENDOLA: Our supplementary submission is brief; it sets out the relevant parts of carpenters and joiners. In this instance, what my client says is that – and what's the surrounding evidence? There was protected industrial action notices that talk about two half day stoppages. The application seeks two half days' pay. What carpenters and joiners says quite clearly, as it's set out, is that it doesn't apply in those circumstances. If you can't be usefully employed for a day, then you can't engage the stand-down provision.

PN498

Now, it is said by my learned friend, Mr Terzic, therefore, they're only standing down for half a day and – sorry, they should have only been standing down for half a day and paying for the rest. The notice that set out the stand-down relates to the decision by Boral to declare both days non-working days. What is the silver bullet, is the silver bullet, Commissioner? That is the start and the end of the matter. In terms of this issue, usefully employed. Because if he can't be usefully employed for the entire day, you can't be usefully employed. In this instance, they could only have been, if there was an argument to that extent, usefully employed for half a day. It really is the start and the end of it.

PN499

Otherwise, Commissioner, when it comes to the evidence there's a lot of words that have been read by my friend about the GMH and Townsend case. What GMH v Townsend demonstrates is it accepts what's said in carpenters and joiners, and that is:

PN500

Usefully employed necessarily connotes that by the employment in contemplation there will be a net benefit to the employer's business by reason of the performance of the particular work done.

PN501

Just because Mr Pantalleresco puts it in his statement that there's this, this and that, that doesn't necessarily mean that there was a net benefit. In fact, the evidence in Mr Mateo Sanchez's statement, makes it clear in each instance why there was no net benefit. Just saying I could sweep the floors does not mean there's a net benefit, and it doesn't mean that our client has to accept it. Net benefit is benefit to the employer, not benefit to the employee. Net benefit to the employer, and there is nothing in the evidence that's been given by Mr Mateo Sanchez which is rock solid, about one, it is true. The efforts that he was making was to try and ensure that people worked at Boral.

PN502

If one looks, for example at page – just bear with me for a moment. I think it's page 184 of the court book – 183 is the commencement of the email, where Mateo Sanchez emails Mr Preston from Boral, and he says:

PN503

We do not anticipate that this action will cause any interference with or disruption to the usual activities of your site. We are taking steps to mitigate any adverse impact on the works that John Beever was performing on your site.

PN504

If was the focus to try and have these people work on that site, because that's where they work. Whilst my friend has tried to suggest there's some sort of yawning chasm, as he describes it in the submissions, between the Monday and the Wednesday evening. The fact is that the fat lady did not sing until the Wednesday evening, from Boral. At that point and at that point only, did they know that there was not going to be work.

PN505

Rumours are rumours. Boral have previously accepted work when industrial action was being notified by the AMWU for half days. In this instance, they didn't. So, the efforts were rightly put into trying to ensure that they would work there on Wednesday afternoon. The moment they knew that, Mr Mateo Sanchez let these people know that they were non-working days. He also gave evidence about steps that he took, people that he spoke to. Despite the best efforts of my friend in cross-examination, and it is definitely the case that this case from their perspective, the fact that it has to rely on cross-examination tells you about the strength of their case. It is not his evidence at all. His statement says what it says. It explains what he did, it explains the effort that he made.

PN506

It was expanded upon to a degree in his evidence today. They can describe it as recent invention if they way to. It is pretty clear from the way that Mateo Sanchez gave evidence that he is a truthful witness and was doing his best in terms of looking after these employees. He also sets out why employment cannot be useful at these other places. Effectively, Mr Terzic would have you believe that Mr Pantalleresco was going to become a wandering minstrel and going from one site, getting inducted, maybe being explained the task, maybe doing something but then took industrial action at 11.00 am, and displacing other people along the way.

PN507

There's this sort of assertion, well he's a permanent employee, so basically stop anyone else who's somewhere else who might otherwise be doing the job at that place. How does that meet the idea of providing a net benefit to the employer at various worksites? Not at all.

PN508

So, in my submission our supplementary submissions kill this stone dead and they're not dealt with by what my friend points – all he has to do is look at the notice that went out which was consequent upon Boral's decision to declare both days non-working days and otherwise the evidence is all one way. There was no useful employment, despite the best efforts of my client, certainly to try and ensure that they worked at Boral for a half day, because that's where they do their work. Otherwise, that there wasn't any other work there. It's explained.

PN509

Have a shopping list of what I might be able to do, I found it interesting that there's a shopping list of what Mr Pantalleresco could do at the workshop which he hasn't attended since August 2021. Whereas my client who gave evidence is wandering through that workshop every week. The evidence is clear, there was no useful employment. I otherwise take my friend's concession that we weren't responsible for this because it is bleedingly obvious that we were not responsible for this situation. There are two parties that were responsible; we're looking at one of them, and Boral was the other.

PN510

In my submission this case ought to be dismissed.

PN511

THE COMMISSIONER: Thank you Mr Amendola. Mr Terzic, anything briefly in reply? You're on mute.

PN512

MR TERZIC: I think the parties have put sufficient material to the Commission for you to make an informed decision and we commend our case to the Commission.

PN513

THE COMMISSIONER: Thank you. The Commission is adjourned.

ADJOURNED INDEFINITELY [1.19 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MATEO SANCHEZ, AFFIRMED........................................................................ PN26

EXHIBIT #25 STATEMENT OF MATEO SANCHEZ...................................... PN32

EXAMINATION-IN-CHIEF BY MR AMENDOLA........................................... PN39

CROSS-EXAMINATION BY MR TERZIC........................................................ PN48

RE-EXAMINATION BY MR AMENDOLA...................................................... PN183

THE WITNESS WITHDREW............................................................................. PN212

JOSE SORTO, AFFIRMED................................................................................. PN231

EXAMINATION-IN-CHIEF BY THE COMMISSIONER.............................. PN231

CROSS-EXAMINATION BY MR TERZIC...................................................... PN236

RE-EXAMINATION BY MR AMENDOLA...................................................... PN321

THE WITNESS WITHDREW............................................................................. PN326