PN1

THE COMMISSIONER: Yes, good morning. We might start by taking appearances in the matter. Who's appearing for the applicant?

PN2

MS A THWAITES: Thwaites, initial A, and with me I have Dixon, initial J.

PN3

THE COMMISSIONER: Ms Thwaites. Thank you. For the respondent?

PN4

MR L MARONEY: If the Commission pleases my name is Maroney, I appear for the respondent instructed by Ms Lenard.

PN5

THE COMMISSIONER: Mr Maroney. Good, thank you. Well, I assume we are all set to proceed, are we? Is that the position, Ms Thwaites?

PN6

MS THWAITES: It's the position, Commissioner, yes.

PN7

THE COMMISSIONER: Mr Maroney, are we all ready to proceed?

PN8

MR MARONEY: Yes, Commissioner.

PN9

THE COMMISSIONER: I know it's very much the eleventh hour, but sometimes the position in one of these matters changes at this point, because everyone has had the opportunity to see all of the material and digest the respective cases. I know in these matters on a couple of occasions we have got to this point and when we've looked at the petition, the number of employees it has been quite clear that the union hadn't got enough names, and rather than go through the proceeding and then have an outcome which demonstrated that failure the unions basically said we will discontinue.

PN10

Now, I don't see that arising in these circumstances, but I have had other circumstances where when all the material has been put in the employer has looked at it and said, well maybe as a matter of managerial strategy it may be better for us to not have this determination made one way or the other, and there are all sorts of factors that might influence that. But once the case has been put forward sometimes the position changes, and I've had instances where we have got to this point and looking at all the material the assessment of the employer has been, well we might reconsider whether we should be maintaining our opposition to the application, and so there's a reconsideration of that.

PN11

Often that's done in the context of ensuring that if there was an outcome that the application was successful the employer's strategy is one where it doesn't want to be seen as being dragged kicking and screaming to the bargaining table, and there's all sorts of good reasons for that because it develops into a position where the nature of the bargaining is somewhat entrenched, if you start from that position as opposed to a more collegial, more cooperative position.

PN12

Now, I don't know whether there's either of those circumstances. The submissions in reply from the union having looked at the numbers, and I know there's more arguments than just the numbers here, but looking at that argument I think the union's case and the case on the numbers turns on this 72 individuals that were identified as essentially not remaining in employment after the period of the ballot – the petition, sorry. Now, where that goes of course no one is jumping to an early conclusion, but we have to see all of that and make a determination about it. I think it's really going to turn on whether the 72 are in or whether they're excluded, and then there are other questions. But as I say sometimes we get to this point in one of these matters and my experience has been that sometimes the position changes.

PN13

As I say sometimes it's been a union that's come forward and said, well, look, we have now seen the numbers that are involved in this and we accept that we're short, we don't have enough, and sometimes it's the employer that reconsiders its position and says, well maybe as a matter of strategy it might be better for us considering the long term to not press the opposition to the application.

PN14

So I don't know whether the parties want an opportunity to just take a short break to consider the comments I've made. It doesn't trouble me. If you don't want to consider them you don't have to, but as I say in my experience in these matters sometimes when we get to this point there seems to be the sort of inevitability about an outcome, but whether that's really the case or not I don't know, and sometimes it's best to do just a little check and decide firmly if this is a matter, this is a case that the parties, both parties want to have the subject of a formal decision.

PN15

So as I say I'm happy to take a short break so that everyone can just consider the comments if you would like to do that, but if you don't want to do that, if you think it's not going to serve any purpose we won't. Mr Maroney, have you got any instructions in that regard?

PN16

MR MARONEY: Commissioner, we're happy to take a five minute adjournment to discuss what you have just said with our client. My preliminary view is the position is unlikely to change.

PN17

THE COMMISSIONER: Yes, and there's no difficulty with that, but I just think it's always worth at least putting this on the table for the parties, because as I say I've had in a number of instances the circumstances change. I have even been in a number of these matters where we got partway through some of the evidence and something has become quite clear and one party or the other has asked for an adjournment and then they have come back and said we're either withdrawing our application and we're withdrawing our opposition to the application. It's always a live issue I suppose, that's all I am suggesting. So perhaps we could just take five minutes, and as I say it might be very short, but it's worth at least considering I think. So we will just adjourn for five minutes and we will resume after that. Thank you.

SHORT ADJOURNMENT [10.14 AM]

RESUMED [10.27 AM]

PN18

THE COMMISSIONER: All right. Are we ready to proceed on?

PN19

MR MARONEY: Yes, Commissioner.

PN20

THE COMMISSIONER: All right. Good. Thank you. All right, well I think it's over to you, Ms Thwaites.

PN21

MS THWAITES: Thanks, Commissioner. If it pleases the Commission I will set out the main issue in contention and the applicant's arguments before we move to the witness evidence. As there's some complexity in the application brought about by the make-up of the workforce I will just spend a bit of time setting out what our position is in relation to that.

PN22

Just some housekeeping first. The Commission should have before it an outline of the applicant's submissions, the witness statements of Ms Aesha Awan with six annexures.

PN23

THE COMMISSIONER: Yes.

PN24

MS THWAITES: A witness statement of Chris Dundon with three annexures.

PN25

THE COMMISSIONER: Yes.

PN26

MS THWAITES: A witness statement of Mohmadsalim Kadiwala.

PN27

THE COMMISSIONER: Yes.

PN28

MS THWAITES: A witness stated of Floyd Goldthorpe.

PN29

THE COMMISSIONER: Yes.

PN30

MS THWAITES: And the applicant's submissions in reply.

PN31

THE COMMISSIONER: Yes, I have got all that material.

PN32

MS THWAITES: Excellent. Just checking. So the union has made an application for a majority support determination and we submit that the application meets the requirements of section 236 and 237 of the Act. To summarise the main issues in contention they are really whether a majority of employees employed at a time to be determined by the Commission who will be covered by the agreement want to bargain; whether the group is fairly chosen having regard to whether the group is operationally, geographically and organisationally distinct, and whether it's reasonable in the circumstances to make the application.

PN33

There is no dispute that the application was made in accordance with section 236 or that the employer has not initiated or agreed to bargain. So I will say no more on those matters. I will say from the outset that the applicant accepts the employer's submissions about the number of employees who worked in the various periods that are supplied in the respondent's written submissions, and we accept that during the petition period there were 543 employees who worked at least one shift.

PN34

We note that obviously the union doesn't have access to employee records and our estimations of the total employee count were just that, estimations. So we won't be making submissions to challenged that number. We also accept that 20 names can be discounted from the petition on the basis that they were not employed by Labourpower in the period, but we do not accept that the further 72 names should be removed from the petition evidence. Accordingly we submit that the number of eligible employees on the petition is 313.

PN35

It's our submission that the time the Commission should determine for assessing the number of employees should be a period of time, and it should be between 21 March and 7 April 2022, which was when the petitions were collated. It's been established in previous cases, including National Union of Workers v Lovisa, [2019] FWC 2885 - may I dispense with formal citations, Commissioner?

PN36

THE COMMISSIONER: If you wish.

PN37

MS THWAITES: That the time determined for fixing the employee number can be a period of time, rather than a point in time, and that it's appropriate to choose a period of time in circumstances where there is a highly casualised workforce. In Lovisa it was determined that a four week period was the appropriate time, and in arriving at that decision Deputy President Colman had regard for the specific composition of that workforce, which was a combination of permanent, part-time employees and casual employees, and in that matter the respondent sought to include all the casuals who were on the books having ever worked a shift basically up until one year before the application was made, and that was rejected.

PN38

The Deputy President adopted the analysis of the Full Court of the Federal Court in the decision NTEU v Swinburne University of Technology to determine that the meaning of employee in section 237 of the Act does not include a person who is usually employed. The Deputy President held that the casual employees could only be regarded as employed to the extent that they actually worked in the period. Therefore those on the books should not be counted.

PN39

Hence we say in this application the respondent's submissions regarding the number of employees on the books, being some 900-odd employees, should similarly be disregarded as not relevant for this application. We submit that for the same reasons the Commission should only count those employees who actually worked within the period that is determined by the Commission.

PN40

In this case we submit that a shorter period being the petition period is appropriate. Unlike Lovisa all the employees in-scope here are employed on a casual basis and there's no permanent pool whatsoever. The witness evidence will show that there is however a constant year round presence of Labourpower employees at the site, and really that group of Labourpower employees at the site is composed of sort of three tiers; the first being longer term casuals who have been there more that six months up to a year, some up to four years; then medium term casuals who have been there regularly and systematically for anywhere between one month and six months, and then a group of employees who are highly, highly transient. Those are workers who will come to the site, they might do one or two shifts, and then they go for whatever reason.

PN41

THE COMMISSIONER: There's five sites, isn't there?

PN42

MS THWAITES: Yes. That's correct, yes. I think that the list of the addresses should be set out in the submissions there.

PN43

THE COMMISSIONER: Yes.

PN44

MS THWAITES: Like in Lovisa the respondent here experiences high levels of turnover in a casual workforce, and this means that the petition period is the critical period of time, because it's the only period where there is any evidence of employees being asked whether they want to bargain. Adding weeks before the petition was actually collated will inflate the employee pool because it's going to include a large number of that last tier of employees, the ones who only work one or two shifts and then they go, and who were never asked whether they wanted to bargain. So there is no way to determine whether those workers want to bargain or don't want to bargain or are agnostic.

PN45

The petition period is not artificially short. It's not one day, which might similarly distort the real number of employees working as compared with a period of time. It's slightly shorter than the period determined in Lovisa and also determined in the AWU v Legeneering case, but that's appropriate because in this case we are talking about this entirely casualised workforce, and the composition of that workforce does constitute that level of workers who are in and out one or two shifts and they're gone.

PN46

Just give me one minute, Commissioner. The respondent submits that during the petition period 543 Labourpower employees worked at least one shift. Of those 313 signed the petition which represents a clear majority. In the alternative if the Commission determined that the petition period was not the appropriate period then we would submit that a four week period ending on 7 April 2022 is appropriate, being that it's the same length of time chosen in Lovisa, and again in the Legeneering case. But as those cases say four weeks is not going to be appropriate in every case and the Commission should have regard to the actual composition of the workforce, which we say does have a consistent base of employees, medium term employees and this very high turnover group of employees who move in and out of the site. In the four week period ending on 7 April – does the Commissioner have a question about that submission?

PN47

THE COMMISSIONER: I will save it for a bit later I think.

PN48

MS THWAITES: Okay. Look, the point with that is that extending the period over a long period of time is going to inflate the numbers, but the workers who are doing the one or two shifts and then leaving the site are over-represented in the employee pool if you do that. So what it does it over-represent the small number of workers – the number of workers who are actually moving in and out of the site, only there for a very short period, unlikely to have a long term stake in bargaining, at the expense of the longer term and medium term employees who are there more consistently.

PN49

In the four week period ending on 7 April the respondent submits that 598 employees worked. So you can see the difference there with the sort of three week period and the four week period, and that's because of that element of the workforce that is highly transient. Of those 598 employees 313 employees' signatures still represents majority support for bargaining.

PN50

Now, on the matter of the petition evidence we submit the petitions have long been accepted in this jurisdiction as evidence of majority support for bargaining. The witness evidence will establish that the petitions were guarded by two experienced union officials who provided information to employees before asking them if they wanted to sign the petitions. They kept the petitions secure and in their custody at all times. There was no misleading information capable of impugning the evidential veracity of those petitions.

PN51

To return to the numbers though there is a contest between the parties as to the meaning of the words 'will be covered by the agreement' in section 237(2)(a) for the purpose of assessing a majority. And this is pertinent to the argument about whether a majority exists, because the respondent has sought to discount 72 names from the petition evidence on the basis that 72 employees have allegedly left the scope of the proposed agreement at the time of filing their submissions.

PN52

We submit that will be covered means only that the employees employed at the time determined by the Commission were also performing the in-scope work at the time. This means that the Commission should not include in the employee denominator anyone who wasn't performing in-scope work at the determined time, and the words 'will be covered' are intended to confine that employee count to those within the scope of the proposed agreement.

PN53

If the words 'will be covered by the agreement' weren't stipulated in that section of the Act then the applicant would need to establish majority support for bargaining from the entire pool of employees employed by the respondent, even those who wouldn't be covered by the agreement just to meet the threshold. That's the work that those words do, they confine that count to those who are in-scope for the agreement.

PN54

If those names are included in the employee denominator however there can be no basis to exclude them from the employee numerator, unless there is alternative evidence that those employees have changed their mind and no longer support bargaining. Otherwise we're not comparing apples with apples any more, we're comparing apples with oranges. The purpose of confining the period is to stabilise that employee number, that group.

PN55

In the context of a casualised workforce with high turnover the removal of these names from the evidence of majority support, but not from the employee denominator, makes the establishment of majority support virtually impossible. So those employees can leave the coverage and the time taken to list the matter for hearing and then return to the coverage again after hearing.

PN56

There is significant procedural fairness implications for an applicant if such an interpretation is adopted and it is highly prejudicial seeking this interpretation for an applicant trying to seek majority support in a casualised environment. The purpose of confining the cohort to a time or a period is to stabilise the employee denominator to make assessment of majority support viable, and the reality of any modern workforce is turnover and movement.

PN57

The respondent submits that 'will be covered' refers to employees whose employment is ongoing, such that they will be covered by an agreement in the future. This interpretation must be rejected for several reasons. Firstly, the majority support determination does not presuppose or mandate that an enterprise agreement is ever actually made. So at what date must an employee be working in order to meet this definition. The nonsense of that interpretation is particularly pronounced in the context of a casualised workforce where the employees by definition have no guarantee of ongoing work and whose employment technically starts and stops with each engagement. In that context how can it be said that any employees will be covered by the agreement. We submit that this interpretation must be rejected by the Commission and the 72 names identified by the respondent should be included in the evidence of majority support.

PN58

The next matter in dispute is whether the group is fairly chosen within the meaning of section 237(2)(c). As we are not seeking to include all the employees of the respondent in the group to be covered the Commission must consider whether the group is operationally, organisationally and geographically distinct as part of its inquiry as to whether the group is fairly chosen.

PN59

On the basis of the respondent's submissions there does not seem to be a dispute as to whether the group is geographically distinct, which we submit that it clearly is, the group being confined to those employees performing warehousing duties, including picking, packing, receiving and despatch at one of five Schenker operated logistic sites in New South Wales listed in the application in the written submissions, but I won't repeat the site addresses here.

PN60

There is a dispute as to the operational and organisational distinctiveness of the group however. We submit that the group is clearly operationally and organisationally distinct, because their work is directed and controlled by one specific client of the respondent, being Schenker, and the organisation is set up in order to meet the particular needs of that client. Hence the respondent employs consultants to oversee and respond to the labour requirements of Schenker and manage the attendant human resources services provided to the workers who are deployed to the Schenker sites, as well as helping Schenker manage resourcing at the sites more generally.

PN61

Organisation and operation distinctiveness are indicia intended to assist the Commission in the broader inquiry of whether the group is fairly chosen. A group can be composed in many different ways and still be fairly chosen. In QGV v AWU the Full Bench held that distinctiveness is not absolute and can be a matter of degree.

PN62

Section 237(2)(c) does not empower the Commission to identify the most convenient grouping for the employer's operations. It bears reminding that the scope of an enterprise agreement is not set in stone by the making of the majority support determination on the terms set out in the determination. It's still open to an employer to bargain for a different scope that it prefers, even if majority support determination is made on the basis of the grouping proposed by an applicant.

PN63

The inquiry of the Commission here is confined to the question of whether the group is fairly chosen; that is the group chosen is not chosen on a discriminatory basis such as that example set out in the explanatory memorandum to the Fair Work Act where an employer seeks to exclude only the union members from a particular site. The group here is chosen on an objective basis having regard for its distinctiveness in the relevant categories, and for that reason we say that the group is fairly chosen.

PN64

Finally, the last ground in dispute is whether it is reasonable in the circumstances to make the determination. We submit that it is reasonable in the circumstances to make the determination, because there are no considerations that suggest otherwise.

PN65

The respondent has highlighted a number of reasons it says tell against the making of the determination, which I will address in closing submissions once we have heard from the witness evidence. For now that concludes my submissions for opening and we can move to witness evidence if it please the Commission.

PN66

THE COMMISSIONER: Can I just ask about this question of – I'm just concentrating on the numbers here and the 72 that is in contest. I get slightly different figures to both of you when I have done the exercise, but I am not sure that troubles a great deal, but I think there's 315, not 313, and if you take the 72 away from that you wind up with the 243 that the respondent says doesn't make a majority. So whichever way you look at it, 313 or 315, but there's 338 entries in the various petitions.

PN67

MS THWAITES: Yes.

PN68

THE COMMISSIONER: There's two duplicates. There's one unknown that we can't work out who it is. There's 18 people who the employer said, well they were never employed by us, don't have their names, and there's two people who work for an associated trade entity or something, some other – so if you go from the 338 and you take those various deductions you get to 315. That's how I have done it. Now, I am happy to be corrected, but that seems to me to be the actual process.

PN69

MS THWAITES: We're comfortable with 315 as the process that you've landed on.

PN70

THE COMMISSIONER: But as I said I am happy to be corrected during the course of the proceedings or whatever, but that's how I have looked at it, and there doesn't appear to be any argument, you're accepting those that were identified as not being employed and somehow or another signing the petition, this happens fairly frequently, and that seemed to be accepted. What's interesting though about this one and the way it's been done is very often a lot of this work isn't actually conducted in this fashion, because usually the petitions come in from the union seeking confidentiality, so the names aren't disclosed. So it then becomes the Commission's job to compare and try and work out from the list of employees of the employer this exercise about, well is this person's name, can we find their name, and my associates and I over the years have done this so many times, it's quite laborious, and you go through, you check off a list of names that the employer gives you and you check off a petition, and that's the exercise that we usually do. But here you've right from the outset disclosed all the names to the employer.

PN71

Now, it seems to me that if the process had been one where the names weren't provided to the employer and the employer just simply was required to provide a list of names of all persons who worked at least one shift during a fixed period of time, whether it's four weeks, three weeks or whatever it might be, that seems to be the approach that generally is adopted in circumstances where there's a highly casualised workforce, there could have been no way of identifying these 72.

PN72

MS THWAITES: Yes.

PN73

THE COMMISSIONER: We couldn't be having an argument about the 72 except for the fact that they were identified for the employer to pick off.

PN74

MS THWAITES: Yes. This is a good point. We're confident that there is a majority of employees who want to bargain there and that that's been continuous. That was the reason why we sought to approach the employer with transparency. There are a number of different ways that the application might have gone from that point, including that the employer might have agreed to a ballot of those employees in the first instance at conference or even at this stage. So the idea was to reduce the complexity of the matter and to reduce the workload of the Commission in dealing with the application in circumstances where we didn't have a cohort of employees who had concerns about confidentiality in relation to this matter.

PN75

THE COMMISSIONER: Yes, it is unusual. It's unusual to have had the identifiers in that fashion. But anyway I suppose that's what we've got and so we have to then deal with the contest about the 72. And if I understand your submission correctly is that you say, well you've looked at a four week period which would go back another week before 21 March. Is that what you were looking at?

PN76

MS THWAITES: Yes, but that's not our first submission.

PN77

THE COMMISSIONER: No. But that produces a larger group of 598.

PN78

MS THWAITES: Yes.

PN79

THE COMMISSIONER: So you have to get 300 to get a majority there.

PN80

MS THWAITES: Yes.

PN81

THE COMMISSIONER: But how do we know – if there were people in that first week who worked a shift they wouldn't have had any opportunity to indicate whether or not they wanted to bargain or not wanted to bargain. The petition didn't start until then.

PN82

MS THWAITES: That's right. That's why we don't submit that in the first instance. It doesn't make sense to do it that way. If there's going to be a four week period though and the approach is that four weeks is the approach that you taken then we have to acknowledge that, but that's why we say the relevant period has to be the petition period. It's the only period when employees were asked whether they want to bargain. There's no evidence here today from the respondent that any employee has changed their mind, didn't want to bargain. There's no alternative ballot. There's no alternative evidence to invalidate those responses, and the difficulty with the numbers though that if you pick that period in time we also - because the employer has not had the same transparency with us we don't know which of the employees who didn't sign the petition have similarly left the coverage. So that's the difficulty with that number now.

PN83

THE COMMISSIONER: And of course all of this would have been avoided if we'd had a position where it was the Commission doing the exercise - - -

PN84

MS THWAITES: Yes.

PN85

THE COMMISSIONER: - - - rather than the employer doing the exercise with the benefit of knowing all the names.

PN86

MS THWAITES: Yes.

PN87

THE COMMISSIONER: It's an interesting conundrum.

PN88

MS THWAITES: It is an interesting conundrum.

PN89

THE COMMISSIONER: Yes, all right. So you're going to call your first witness, is that where we're up to?

PN90

MS THWAITES: Yes, we're going to call the first witness.

PN91

THE COMMISSIONER: Okay.

PN92

MS THWAITES: We will call Floyd Goldthorpe.

PN93

THE ASSOCIATE: Could you please state your full name and address for the record.

PN94

MR GOLDTHORPE: Yes, Floyd John Goldthorpe, (address supplied).

<FLOYD JOHN GOLDTHORPE, AFFIRMED [10.51 AM]

EXAMINATION-IN-CHIEF BY MS THWAITES [10.51 AM]

PN95

MS THWAITES: I'd like to hand a document to the witness.

PN96

THE COMMISSIONER: This is what was filed. It's no different to what was filed.

PN97

MS THWAITES: Yes. It's not different, sorry.

PN98

THE COMMISSIONER: All right.

PN99

MS THWAITES: Mr Goldthorpe, can you describe what the document is?‑‑‑Yes, it's a witness statement.

PN100

Does it have 25 paragraphs and is it four pages long?‑‑‑Yes.

*** FLOYD JOHN GOLDTHORPE XN MS THWAITES

PN101

And is it your witness statement?‑‑‑Yes, it is.

PN102

Are there any changes or corrections that you'd like to make to the document?‑‑‑No.

PN103

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

PN104

Commissioner, I seek to tender the witness statement.

PN105

THE COMMISSIONER: The document is tendered. Is there any objection to its admission?

PN106

MR MARONEY: Commissioner, we have – if I could hand up a document to you. We have prepared a schedule of objections to each of the witness statements that are sought to be relied upon by the applicant in these proceedings. We don't seek formal rulings on any of those objections, but if that outline could be marked and the submissions therein treated in the normal way as to the weight which could attach to each of those matters.

PN107

THE COMMISSIONER: All right. This is all of the witness statements and all of the objections?

PN108

MR MARONEY: It is, Commissioner.

PN109

THE COMMISSIONER: All right. We might just formally mark the document, the respondent's outline of objections – it won't be marked as an exhibit, we will mark it as MFI 1.

MFI #1 RESPONDENT'S OUTLINE OF OBJECTIONS DOCUMENT

PN110

The Commission indicates that it will have regard for the identified objections, and the matters that are identified essentially go to weight in terms of the evidence that's put forward.

PN111

MR MARONEY: If the Commission pleases.

PN112

THE COMMISSIONER: Good. All right, thank you. All right. So with those objections having been noted the witness statement is admitted.

*** FLOYD JOHN GOLDTHORPE XN MS THWAITES

EXHIBIT #1 WITNESS STATEMENT OF FLOYD GOLDTHORPE, UNSIGNED, DATED 13/05/2022

PN113

MS THWAITES: No further questions from me.

PN114

THE COMMISSIONER: That's the evidence-in-chief of the witness. All right, cross-examination, Mr Maroney.

CROSS-EXAMINATION BY MR MARONEY [10.57 AM]

PN115

MR MARONEY: Thank you, Mr Goldthorpe. You've just been shown a document which has become exhibit 1. Have you seen that document before today?‑‑‑No.

PN116

But were you involved in the production of this document?‑‑‑Yes, I was involved in the production of this document, yes.

PN117

You're employed by Schenker Australia Pty Ltd?‑‑‑Yes.

PN118

You've never been employed by Labourpower?‑‑‑No.

PN119

You've always been working for Schenker as a direct hire employee?‑‑‑I was a casual, but it was a different agency at the time when I became permanent.

PN120

That was more than 12 years ago?‑‑‑Yes.

PN121

And you work at the Hoxton Park site at Len Waters Estate?‑‑‑Yes. Yes.

PN122

And you're a United Workers' Union delegate at that site?‑‑‑Yes, I am, yes.

PN123

And you're giving evidence here on behalf of the United Workers' Union today?‑‑‑Yes.

PN124

You're giving that evidence because there's no union delegate as amongst the Labourpower employees, is that right?‑‑‑Yes, there is none, no.

*** FLOYD JOHN GOLDTHORPE XXN MR MARONEY

PN125

You give evidence in these proceedings with respect to the process that led up to the signing of some petitions. If I could show you a document. Commissioner, this is attachment AA1 to the statement of Ms Awan filed in these proceedings. Mr Goldthorpe, at paragraph 23 of your statement you say that Ms Awan – sorry, that Mr Dundon provide a flyer to employees at the site you work at. Is that the flyer you're referring to?‑‑‑Yes.

PN126

And you say that Mr Dundon explained the concept of enterprise bargaining by reference to that flyer, is that right?‑‑‑Yes.

PN127

So what he said in the mass meetings that occurred in the workplace reflected what was in that flyer?‑‑‑Yes.

PN128

If I could take you to the second page of that flyer, you will see there's a series of dot points and steps that are said to be taken during the bargaining process. Do you see that?‑‑‑Yes.

PN129

Can I take you to the sixth of those dot points, or the sixth of those numbered points rather, and that says, 'Once we have endorsed the outcome a final document is put out for seven days for you to review and check that it's faithful to what we have negotiated.' That was one of the steps in the bargaining process that was explained by Mr Dundon to the workers on the site?‑‑‑Yes.

PN130

And you understood from reading that that it was necessary for the United Workers' Union to endorse the final outcome of the negotiation process before an agreement was put out for a vote?‑‑‑Sorry, what was the question?

PN131

When you read this and when you heard what Mr Dundon said about this did you understand that the United Workers' Union would endorse any agreement before it was put out for a vote?‑‑‑Yes. Yes.

PN132

And you accept that as a union delegate you have a greater level of awareness as to the conduct of enterprise bargaining than the rest of the workforce?‑‑‑Yes, because I am involved in EBA negotiations.

PN133

And you would accept that when you and other employees are told by the United Workers' Union what the steps to bargaining are that they would understand those steps to be a correct reflection of how the process would work?‑‑‑Yes.

*** FLOYD JOHN GOLDTHORPE XXN MR MARONEY

PN134

No one from the United Workers' Union has said anything that contradicts what was put at paragraph 6 of those steps?‑‑‑No.

PN135

You understand that the number of Labourpower employees on the Len Waters Estate site goes up and down, doesn't it?‑‑‑Yes, at some stages, but most of the time it's pretty steady.

PN136

You would accept that the number of employees from Labourpower increases around Christmas time?‑‑‑Yes, in some sections, yes.

PN137

And you would agree that the number of Labourpower employees increases around the time of new product launches?‑‑‑Yes. Yes.

PN138

And you would accept that there are also slower periods of the year?‑‑‑Sometimes, yes, but most of the time it's pretty much the same people working.

PN139

Around the Easter period there's fewer of the short term casuals, aren't there?‑‑‑It depends on what section really, yes.

PN140

But in some sections there are fewer employees around Easter?‑‑‑Yes.

PN141

And the petition that was signed was signed in late March and early April of this year, is that correct?‑‑‑Yes.

PN142

And that was shortly before Easter?‑‑‑April – no, April was Easter, wasn't it? It was after Easter, wasn't it?

PN143

If the petition - - -?‑‑‑The petition was done after Easter, after Easter.

PN144

Good Friday was on 15 April this year. In your witness statement you give evidence that Mr Dundon and Ms Awan attended the site on 23 March?‑‑‑That was the first one, yes. Yes.

PN145

And the petition contains signatures up to and including 7 April. So that's the period shortly before Easter?‑‑‑Yes.

PN146

And so that's the period in which there are fewer employees from Labourpower in certain sections?‑‑‑Yes. Not down my end of the shed, more the other end of the shed, yes.

*** FLOYD JOHN GOLDTHORPE XXN MR MARONEY

PN147

But as a United Worker's Union delegate you have responsibility across the various sheds?‑‑‑Yes. Well, we had multiple delegates on site.

PN148

But you're the delegate here giving evidence - - -?‑‑‑Yes.

PN149

- - - for the site?‑‑‑Yes, I am.

PN150

And so you would accept that across the sheds there are fewer workers during that period.

PN151

MS THWAITES: Objection. It calls for speculation. Mr Goldthorpe is the delegate for the Hoxton Park site, not the delegate of the other sites. His evidence pertains only to what he knows from his experience at Hoxton Park, not across the other sites.

PN152

MR MARONEY: We're talking about the various sheds at Hoxton Park. That was the evidence that I understood Mr Goldthorpe to be giving.

PN153

THE WITNESS: There's only one shed. There's multiple clients in the one shed.

PN154

MR MARONEY: And so before when you said there was a number of people in certain sheds - - -?‑‑‑No, in certain sections, not sheds.

PN155

In certain sections. So in certain sections there were fewer employees on site while this petition was being run?‑‑‑Yes.

PN156

If the Commission pleases that's the cross-examination.

PN157

THE COMMISSIONER: All right. Any re-examination, Ms Thwaites?

PN158

MS THWAITES: Yes.

RE-EXAMINATION BY MS THWAITES [11.06 AM]

PN159

Mr Goldthorpe, can you explain to the Commission your understanding of how bargaining proceeds?‑‑‑Sorry, how bargaining proceeds?

*** FLOYD JOHN GOLDTHORPE RXN MS THWAITES

PN160

How bargaining proceeds. You were cross-examined on the question of how a vote proceeds?‑‑‑Yes.

PN161

Can you explain your understanding of the steps that lead up to a vote with the employees?‑‑‑A vote?

PN162

Yes?‑‑‑Yes. Well, everyone obviously gathers and, you know, questions asked and everyone votes on it.

PN163

Can an employer put an agreement out to vote without the union's endorsement?‑‑‑Not as I'm aware of.

PN164

No further questions.

PN165

THE COMMISSIONER: Just as a matter of interest, Mr Goldthorpe, the work that goes on at Hoxton Park, the packing and so forth, you say there are these different sections. Can you give me an example; what goes on in your section compared to another section?‑‑‑Well, for instance I work with Fuji products, and then there's multiple sections that work with other products.

PN166

So it's divided up by the nature of the product that you're actually picking or packing, is that right?‑‑‑Yes, because there's multiple clients in the warehouse. It's not just one client, you know what I mean, there's like, yes, different clients in the same shed.

PN167

So it's really done by the product?‑‑‑Yes.

PN168

Okay. Thanks for clarifying that. I take it there's nothing arising from my question. It was more a matter of interest.

PN169

MR MARONEY: No, Commissioner.

PN170

THE COMMISSIONER: Yes, all right. Thank you for giving your evidence, you're released and discharged. You can leave now. Thank you again.

<THE WITNESS WITHDREW [11.08 AM]

*** FLOYD JOHN GOLDTHORPE RXN MS THWAITES

PN171

MS THWAITES: If it pleases the Commissioner we call Mohmadsalim Kadiwala.

PN172

MR MARONEY: Sorry, while there's no witness in the box could I have the document I handed up to that witness returned to me.

PN173

THE ASSOCIATE: It's not here, sorry.

PN174

THE COMMISSIONER: He's taken it with him.

PN175

THE ASSOCIATE: Could you please just state your full name and address for the record.

PN176

MR KADIWALA: Mohmadsalim Sidikbha Kadiwala, (address supplied).

<MOHMADSALIM SIDIKBHA KADIWALA, SWORN [11.10 AM]

EXAMINATION-IN-CHIEF BY MS THWAITES [11.10 AM]

PN177

MS THWAITES: I'd like to hand a document to the witness. Mr Kadiwala, can you describe what the document is?‑‑‑It's a statement, a witness statement of myself Mohmadsalim Kadiwala.

PN178

Is it 29 paragraphs long and four pages long?‑‑‑Yes.

PN179

Are there any changes or corrections you'd like to make to the document?‑‑‑No.

PN180

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

PN181

Commissioner, I seek to tender the witness statement.

PN182

THE COMMISSIONER: The statement has been tendered. The objections as earlier identified in MFI 1 are noted. Is there any other reason - - -

PN183

MR MARONEY: Nothing further to that, Commissioner.

*** MOHMADSALIM SIDIKBHA KADIWALA XN MS THWAITES

PN184

THE COMMISSIONER: All right. Thank you. The document will be admitted.

EXHIBIT #2 WITNESS STATEMENT OF MOHMADSALIM KADIWALA DATED 13/05/2022

PN185

MS THWAITES: Nothing further from me.

PN186

THE COMMISSIONER: Nothing further. All right. Cross-examination, Mr Maroney.

CROSS-EXAMINATION BY MR MARONEY [11.12 AM]

PN187

MR MARONEY: Thank you. Mr Kadiwala, you've just been shown a witness statement which became exhibit 2 in the proceedings. Have you seen that document before today?‑‑‑Yes.

PN188

You've been employed by Schenker for a period of some 11 and a half years?‑‑‑Yes.

PN189

You're not employed by Labourpower?‑‑‑No.

PN190

You've never been employed by Labourpower, have you?‑‑‑No.

PN191

And you've always been direct hire with Schenker?‑‑‑Yes.

PN192

You're here in your capacity as a United Workers' Union delegate at the Eastern Creek site of Schenker?‑‑‑Yes.

PN193

And that's because there's no delegates amongst the Labourpower employees on that site, is that right?‑‑‑Yes.

PN194

If I could show the witness a document. Mr Kadiwala, at paragraph 16 of your witness statement you give evidence that Ms Awan handed out flyers explaining what bargaining is. Is this one of those flyers?‑‑‑Yes.

PN195

When you say that Ms Awan handed out the flyer and explained what bargaining was she outlined the steps that are outlined in that document, is that right?‑‑‑Yes.

PN196

And on the second page of that document there's a section headed 'Steps to negotiating an agreement'?‑‑‑Yes.

*** MOHMADSALIM SIDIKBHA KADIWALA XXN MR MARONEY

PN197

And there are seven numbered paragraphs underneath that heading?‑‑‑Yes.

PN198

And those were the steps that Ms Awan told the mass meetings on site that would be undertaken as part of enterprise bargaining?‑‑‑Yes.

PN199

And at paragraph 6 of those numbered paragraphs it states, 'Once we have endorsed the outcome a final document is put out for seven days for you to review and check that it is faithful to what we negotiated.' You recall Ms Awan explaining that being a step in the negotiating process?‑‑‑Yes.

PN200

And when Ms Awan stated that once we have endorsed the outcome you understood that to mean the United Workers' Union had to endorse the outcome of the enterprise negotiations?‑‑‑Yes.

PN201

And you understood that an enterprise agreement could not be put out to vote unless the United Workers' Union had endorsed the outcome?‑‑‑Can you repeat again?

PN202

You say that you understood that the United Workers' Union had to endorse the outcome of the negotiations?‑‑‑Yes.

PN203

And you understood as a result of that that an agreement couldn't be put out for a vote without the union's endorsement?‑‑‑Without, no. With the union - - -

PN204

Only with the union's endorsement, is that correct?‑‑‑Yes.

PN205

And you accept as a United Workers' Union delegate you're in a better position to know what the steps in bargaining are than the rest of the workforce?‑‑‑No.

PN206

As a United Workers' Union delegate are you involved in bargaining?‑‑‑Yes.

PN207

And so you have a greater level of exposure to some of the steps that take place during the bargaining process - - -?‑‑‑Yes.

PN208

- - - than other employees. And you accept that the workforce expect that the United Workers' Union are providing correct advice about the steps in enterprise agreement negotiation?‑‑‑Yes.

*** MOHMADSALIM SIDIKBHA KADIWALA XXN MR MARONEY

PN209

You understand that Labourpower employees don't currently have an enterprise agreement which covers them?‑‑‑At the moment, no, but we fight for that.

PN210

And when you were attending the mass meetings where enterprise bargaining was being explained to the workers - - -?‑‑‑Yes.

PN211

- - - you didn't hear Ms Awan say anything that was contrary to the steps outlined in this flyer?‑‑‑No.

PN212

Thank you. If I could have that document handed back. I will just move briefly to another topic, Mr Kadiwala. At paragraph number 14 of your witness statement you give evidence that the number of employees fluctuates. That's a reference to the number of Labourpower employees?‑‑‑All the labour force, like Labourpower, ASAP and Hoban.

PN213

So that's a reference to the various labour hire agencies - - -?‑‑‑Yes.

PN214

- - - that operate on the site?‑‑‑Yes.

PN215

And you say there's always a significant number of agency employees working on the site?‑‑‑Yes.

PN216

That can be different agency employees on any day?‑‑‑There is a different agency to Labourpower.

PN217

And you state that there are peak periods such as product launches and Christmas time?‑‑‑Yes.

PN218

And during those peak periods there are larger number of Labourpower employees on site?‑‑‑Yes, it is true.

PN219

And during periods around Easter there are decreases in the number of employees on site?‑‑‑Yes.

PN220

And you're aware that the petition that the United Workers' Union has circulated was run shortly before Easter of this year?‑‑‑Yes, around Easter, yes.

*** MOHMADSALIM SIDIKBHA KADIWALA XXN MR MARONEY

PN221

And so there were fewer employees on site at that time?‑‑‑Yes.

PN222

Fewer than the normal number?‑‑‑It's a large number. Because of the Easter it's quite a few number.

PN223

Sorry, just so I can understand what you just said. It's a large number of employees on site, but it's still fewer than what would usually be there?‑‑‑Yes.

PN224

That's the cross-examination, Commissioner.

PN225

THE COMMISSIONER: Thank you. Any re-examination?

PN226

MS THWAITES: Nothing further.

PN227

THE COMMISSIONER: Mr Kadiwala, you mentioned in paragraph 19 that some of the Labourpower employees complained to you about their wages?‑‑‑Yes, that's true.

PN228

There's two other recruitment agencies also that you speak of, ASAP and Hoban?‑‑‑Yes.

PN229

Do the workers that work for those recruitment companies or labour hire companies also complain to you about their wages?‑‑‑Yes.

PN230

So none of them are on enterprise agreements, is that right?‑‑‑Yes.

PN231

All right. Thank you for clarifying that. Anything arising from my questions at all, Mr Maroney?

PN232

MR MARONEY: No, Commissioner.

PN233

THE COMMISSIONER: Nothing further?

PN234

MS THWAITES: Nothing further.

*** MOHMADSALIM SIDIKBHA KADIWALA XXN MR MARONEY

PN235

THE COMMISSIONER: All right. Well, thank you for giving your evidence, you're released and discharged. You can go now, thank you?‑‑‑Thank you.

<THE WITNESS WITHDREW [11.20 AM]

PN236

THE COMMISSIONER: We might take a short morning break before we take the next two witnesses. So we will resume again in about ten or 15 minutes.

SHORT ADJOURNMENT [11.21 AM]

RESUMED [11.46 AM]

PN237

THE COMMISSIONER: All right. The next witness, Ms Thwaites?

PN238

MS THWAITES: The next witness we call is Aesha Awan.

PN239

THE ASSOCIATE: Please state your full name and address for the record.

PN240

MS AWAN: My name is Aesha Hussein Awan, (address supplied).

<AESHA HUSSEIN AWAN, SWORN [11.48 AM]

EXAMINATION-IN-CHIEF BY MS THWAITES [11.48 AM]

PN241

MS THWAITES: I'd like to hand a document to the witness. Ms Awan, can you identify what that document is?‑‑‑This is my witness statement.

PN242

Does it have 29 paragraphs and six annexures?‑‑‑Yes, it does.

PN243

Are there any changes or corrections that you would like to make to the document?‑‑‑Yes. On paragraph 20 where it says 'union inductions' it should read 'union meetings'.

PN244

Is the remainder of the document otherwise true and correct to the best of your recollection?‑‑‑Yes, it is.

PN245

Commissioner, I seek to tender the witness statement with the changes made to paragraph 20.

*** AESHA HUSSEIN AWAN XN MS THWAITES

PN246

THE COMMISSIONER: All right. You made that change in hand. The document is tendered. The objections that were identified in MFI 1 are noted. Is there any other objection at all?

PN247

MR MARONEY: No, Commissioner.

PN248

THE COMMISSIONER: Good. Thank you.

EXHIBIT #3 WITNESS STATEMENT OF AESHA AWAN, UNSIGNED, DATED 13/05/2022

PN249

MS THWAITES: Thank you, no further questions from me.

PN250

THE COMMISSIONER: Nothing further in-chief. Cross-examination, Mr Maroney.

PN251

MR MARONEY: Thank you, Commissioner.

CROSS-EXAMINATION BY MR MARONEY [11.49 AM]

PN252

Ms Awan, at paragraph 26 of your witness statement you note that the labour hire industry is one where there's a high turnover of labour. Is that right?‑‑‑Yes, it is.

PN253

And as a result of that high turnover you understand that most labour hire operators have employees that come into and out of the business on a regular basis?‑‑‑Yes.

PN254

And you're the organiser that's responsible for the Schenker site at Eastern Creek?‑‑‑Yes, I am.

PN255

And you're aware that that site uses multiple labour hire operators?‑‑‑Yes, it does.

PN256

You give evidence that you held mass meetings for the purpose of discussing the issue of enterprise bargaining with Labourpower. Did you also hold mass meetings with Hoban Recruitment?‑‑‑We had a mass meeting where everyone was present.

PN257

And so you invited employees regardless of who they were employed by?‑‑‑We typically have everyone at our mass meetings.

*** AESHA HUSSEIN AWAN XXN MR MARONEY

PN258

So you invited everyone regardless of who they were employed by?‑‑‑Yes. Yes.

PN259

As a result - you understand that Labourpower doesn't currently have an enterprise agreement, and that's the basis on which this application is brought?‑‑‑Yes, that's correct.

PN260

Are you aware that ASAP Recruitment also does not have an enterprise agreement?‑‑‑Yes, I'm aware of that.

PN261

Are you aware that Hoban also does not have an enterprise agreement?‑‑‑Yes, I'm aware of that.

PN262

A moment ago we were discussing the turnover in the labour hire industry, and you give evidence at paragraph 27 of your witness statement that you're aware of a number of people who signed your petitions that are no longer employed by Labourpower?‑‑‑Yes, that's correct.

PN263

You would be aware that there are also people who remain employed by Labourpower but no longer work on Schenker sites who have signed the petitions?‑‑‑Yes, I'm aware of that.

PN264

At paragraph 14 of your witness statement you state that it's your belief that many employees of Labourpower work full-time hours, and that's based in part on union membership records?‑‑‑Yes, and also just my observations.

PN265

You aren't on site every day of the week, are you?‑‑‑No, I'm not.

PN266

And you don't necessarily know if members fill out the relevant forms for union membership accurately?‑‑‑Sometimes people might fill out incorrectly, but most people fill it out correctly.

PN267

How do you know most people fill it out correctly?‑‑‑Just based on my observations. When I speak to someone usually their name is what it is on the form, and if they're a casual usually it says so in our membership database that they usually are casual.

*** AESHA HUSSEIN AWAN XXN MR MARONEY

PN268

Whether or not they are aligned as casual on your database and whether they're casual in reality doesn't necessarily align with whether or not they're working full-time hours, does it?‑‑‑Yes, that's correct. As you know I obviously don't have access to employee records, so what we know is based on the conversations we have with the members.

PN269

And you're aware that in the labour hire industry people's hours can go up or down in various weeks?‑‑‑Yes, it can.

PN270

And so what's recorded in the union's membership records with respect to hours of work isn't necessarily current information?‑‑‑Yes. As I said before we don't have access to employee records, so that information isn't going to be accurate. It's based on our observations, what we've been told.

PN271

So the answer to my question which was about the accuracy of the union's records is that they're not necessarily current?‑‑‑They're based on our observations and what we've been told, so they're not going to be as accurate as the employee records, no.

PN272

If you can remit yourself to the question I'm asking you, Ms Awan. The question is the union's membership records are not necessarily the most current information?‑‑‑No.

PN273

Unions often find it difficult to organise highly casualised workforces, don't they?‑‑‑Yes, sometimes.

PN274

And it's more likely that the portion of the workforce that become union members are permanent employees?‑‑‑Sorry, could you repeat that question?

PN275

In your experience as a UWU official it's more likely that a person who is a permanent employee would become a union member?‑‑‑It depends on the circumstances.

PN276

When you were conducting mass meetings of staff at Schenker's facilities were you entering in accordance with your right of entry under the Fair Work Act?‑‑‑We were invited by the company and given permission to be on site.

PN277

And you give evidence that you handed out a flyer while you were on site?‑‑‑Yes.

PN278

Can I take you to annexure AA1 to your witness statement?‑‑‑Yes, I've got it in front of me.

*** AESHA HUSSEIN AWAN XXN MR MARONEY

PN279

And that's a copy of the flyer that you circulated at the various Schenker facilities that you visited?‑‑‑Yes.

PN280

And can I take you to the second page of that document?‑‑‑Yes.

PN281

These are the steps that you outlined with respect to negotiating an enterprise agreement when you were conducting the mass meetings?‑‑‑We handed out the flyer, but we didn't read this flyer out.

PN282

You give evidence that you address the mass meetings?‑‑‑Yes, I did address at the mass meetings.

PN283

And you address the mass meetings on the nature of enterprise negotiations?‑‑‑Yes.

PN284

And you outline during those meetings the steps that were taken – that are taken during enterprise bargaining?‑‑‑Yes.

PN285

And you didn't say anything during those meetings that would contradict what's put in the flyer?‑‑‑We did say – so we did say that we'll bargain back and forth with the employer, and once the employer has put the agreement out and it's been voted up by a majority of workers then that becomes the new enterprise agreement.

PN286

So if you can give your attention to the question I asked, which was you didn't say anything that contradicted what's put in the flyer?‑‑‑So what part of the flyer are you referring to?

PN287

If I can ask it a different way and that might assist you. You didn't say that anything that was in the flyer was incorrect, did you?‑‑‑No.

PN288

And you believed that's what put in the flyer is correct?‑‑‑Well, there is – I think there is something you could add to the flyer.

PN289

That wasn't the question I asked. Is there anything in the flyer which you say is incorrect?‑‑‑It's mostly correct, yes.

*** AESHA HUSSEIN AWAN XXN MR MARONEY

PN290

What parts are incorrect?‑‑‑Well, if you look at point 5 and 6 it says – it basically says that once the union and the company agree to an outcome that the document is put out to vote. Now, that is usually what happens in negotiations with the union and employers, because the employer knows the agreement won't get voted up without union support in the majority of cases, because the union holds the majority. But sometimes the employer might put the agreement out to vote without the endorsement of the union, and in a very rare occasion that agreement might get voted up, and in which case that becomes the enterprise agreement.

PN291

So you accept that the flyer contains material that is incorrect?‑‑‑I think it could have been worded better, yes.

PN292

And the way it's worded is incorrect?‑‑‑No.

PN293

You said before the information was mostly correct, and you now say that there is nothing that is incorrect in the flyer?‑‑‑I think that the flyer should have mentioned that there are occasions where the agreement can be put out to vote without the union's endorsement.

PN294

You accept that the flyer says that the agreement will be put out for a vote after the union's endorsed the outcome?‑‑‑Yes.

PN295

And you didn't seek to correct that with the workforce during your mass meetings?‑‑‑No.

PN296

And you didn't seek to correct that with the workers you handed the other flyer to during your lunch room visits?‑‑‑No. We just explained that the agreement is reached once there's a back and forth and the majority of employees agree.

PN297

Have you spoken to Ms Thwaites about the content of the flyer?‑‑‑About the content of the flyer?

PN298

Yes?‑‑‑Yes.

PN299

When did those discussions occur?‑‑‑It would have occurred – well, throughout the process.

PN300

Throughout the process being throughout the process of these proceedings?‑‑‑Well, throughout getting the signatures.

PN301

Were you involved in the drafting of the flyer?‑‑‑No.

*** AESHA HUSSEIN AWAN XXN MR MARONEY

PN302

Who was involved in the drafting of the flyer?‑‑‑I'm not actually sure, sorry.

PN303

You were aware that the content of the flyer contained incorrect material while you were handing them out?‑‑‑No. I became aware afterwards.

PN304

Are you involved in bargaining with Schenker at the moment?‑‑‑Yes, I am.

PN305

Schenker you are aware currently has an enterprise agreement?‑‑‑Yes, it does.

PN306

And you're currently bargaining for an enterprise agreement to replace that enterprise agreement?‑‑‑Yes, we are.

PN307

And it would be convenient to you if the bargaining with Labourpower were happening at the same time as the bargaining with Schenker?‑‑‑Sorry, can you repeat that question or reword it, I'm not sure what you're asking.

PN308

Would it be convenient to the UWU if the bargaining with Schenker and the bargaining with Labourpower was occurring at the same time?‑‑‑Yes, because we could run the mass meetings together.

PN309

And it would assist with your industrial strategy with respect to the terms and conditions you seek across both employers?‑‑‑What do you mean by industrial strategy?

PN310

The core of your claim for bargaining with Labourpower is that they should have the same terms and conditions as Schenker direct hire employees, is that correct?‑‑‑Core of the claim with who?

PN311

With Labourpower?‑‑‑We don't have any claims for Labourpower. We haven't even begun negotiations with them yet.

PN312

What you seek in bargaining is that there be an equalised set of terms and conditions across Schenker and Labourpower?‑‑‑We haven't filed any with Labourpower though, so we're not seeking anything yet. We're here to win the right to bargain today.

*** AESHA HUSSEIN AWAN XXN MR MARONEY

PN313

Whether or not you have commenced bargaining what the UWU seeks out of a bargaining process is that Labourpower and Schenker each have the same terms and conditions which apply to employees?‑‑‑Which bargaining process are you referring to?

PN314

If you can listen to the question I'm asking. The question I'm asking is premised on what you're seeking out of today's majority support determination application. Do you understand that?‑‑‑Yes.

PN315

And you understand what's sought out of that application is that a bargaining process commence?‑‑‑Yes.

PN316

And what's ultimately sought out of that bargaining process would be that the terms and conditions with Labourpower reflect those of the terms and conditions of Labourpower(sic) direct hire employees?‑‑‑No, that's not it. We're seeking when we're negotiating with DB Schenker that DB Schenker pays and has the same wages and conditions with the labour hire. That is a separate negotiation. What we're seeking here today is to begin a bargaining process with Labourpower around that bargain, and that's not necessarily going to be the same as what we're seeking with Schenker.

PN317

You're aware that Ms Kitty Spencer is an HR manager of Labourpower?‑‑‑Yes, I am.

PN318

And you're aware that she's given a witness statement in these proceedings?‑‑‑Yes, but I don't remember much of it.

PN319

Do you recall that she gives evidence that 133 new employees of Labourpower were inducted into the Schenker sites between 8 April and 30 May 2022?‑‑‑That sounds familiar.

PN320

And you haven't led any evidence in these proceedings of support for those employees for bargaining?‑‑‑No, we have not.

PN321

That's the cross-examination, Commissioner.

PN322

THE COMMISSIONER: All right. Thank you. Any re-examination, Ms Thwaites?

PN323

MS THWAITES: No re-examination.

*** AESHA HUSSEIN AWAN XXN MR MARONEY

PN324

THE COMMISSIONER: Could I just ask, Ms Awan, looking at this position of what appears to be lots of casuals working extended regular periods at a number of these sites, what's happened in terms of the question of casual conversion, the National Employment Standard in this regard?‑‑‑I'm really glad you asked that, Commissioner. So this might actually point back to what Mr Maroney was saying earlier. We're currently negotiating with Schenker that Schenker convert some of the labour hire casuals who have been there long term. Schenker currently is in the process of converting some of those people. However, it's not enough, and in terms of the NES we're trying to have an embedded right within the agreement that allows for that conversion to occur.

PN325

That's Schenker?‑‑‑Yes.

PN326

These are your members, they're employed by Labourpower as in some instances long term casual employees?‑‑‑These members have indicated to us they would prefer permanent employment with Schenker.

PN327

Rather than permanent employment with Labourpower?‑‑‑Yes.

PN328

So has there been the notice requirements that have been provided to these employees that they're not being offered casual conversion?‑‑‑What do you mean by notice requirement?

PN329

The NES has some notice requirements in it?‑‑‑I'm not really - - -

PN330

You're not sure about that?‑‑‑I'm not really sure what you're referring to, Commissioner.

PN331

All right. If I understand your answer to some questions in cross-examination your current negotiations for – it will be a replacement enterprise agreement for the Schenker Australia 2018-2021 agreement. Are you looking to incorporate terms in that which oblige Schenker to require those employees of third party, labour hire companies, to have a requirement that they pay no less than the terms and conditions of the enterprise agreement when working on a Schenker site?‑‑‑Yes. What we're negotiating for essentially is that if a labour hire employee is working at a Schenker site doing the same work that a Schenker casual or a Schenker employee is doing then their terms and conditions should be no worse than that of a Schenker employee.

PN332

And there's not a clause like that currently in the current agreement?‑‑‑No, there's not unfortunately.

*** AESHA HUSSEIN AWAN XXN MR MARONEY

PN333

All right. Well, thank you for clarifying those things. Anything arising from my questions at all? Mr Maroney, anything from your side?

PN334

MR MARONEY: One question arising from the questions you asked, Commissioner, with respect to casual conversion.

PN335

Ms Awan, you're aware that the National Employment Standards require offers of casual conversion to be made?‑‑‑Yes.

PN336

And you're aware that they were made by Labourpower to its casual employees who satisfied the 12 month service period?‑‑‑No, this is the first I'm hearing of it.

PN337

So you're not aware one way or another as to whether that happened?‑‑‑No.

PN338

You expressed in answer to a question from the Commissioner that the employees you'd spoken to had expressed a preference that they become permanent employees of Schenker and not permanent employees of Labourpower?‑‑‑Yes, that's correct.

PN339

And you're aware that the National Employment Standards doesn't require offers of that type to be made?‑‑‑Yes, I'm aware of that.

PN340

Thank you, Commissioner, that's the further cross-examination.

PN341

THE COMMISSIONER: Ms Thwaites, anything further from your side?

PN342

MS THWAITES: Nothing further.

PN343

THE COMMISSIONER: Nothing further. All right. Well, thank you for giving your evidence, you're released and discharged. You can leave. Thank you.

<THE WITNESS WITHDREW [12.09 PM]

PN344

MS THWAITES: Next the applicant calls Mr Chris Dundon.

PN345

THE COMMISSIONER: Thank you.

*** AESHA HUSSEIN AWAN XXN MR MARONEY

PN346

THE ASSOCIATE: If you could please state your full name and address for the record.

PN347

MR DUNDON: Christopher Steven Dundon, (address supplied).

<CHRISTOPHER STEVEN DUNDON, SWORN [12.11 PM]

EXAMINATION-IN-CHIEF BY MS THWAITES [12.11 PM]

PN348

MS THWAITES: I'd like to hand a document to the witness. Mr Dundon, can you describe what the document is?‑‑‑This is my witness statement.

PN349

Does it have 33 paragraphs and three annexures?‑‑‑Yes.

PN350

Are there any changes or corrections that you'd like to make to the document?‑‑‑Yes. I believe that there was one. Number 8 where I say Labourpower is the only labour hire agency with employees working at Hoxton Park site with approximately 238 employees working there, I have since met one other employee at Hoxton Park that works for another labour hire agency, but it's very clear that he is the only person that works with that labour hire agency, and it's been discussed that he would transition over to Labourpower at some point.

PN351

And what agency does that employee work for?‑‑‑APS I believe.

PN352

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

PN353

Commissioner, I seek to tender the witness statement with amendments made to paragraph 8.

PN354

THE COMMISSIONER: What were you going to say there, Labourpower is not – you're going to add the word 'not' to be more accurate?

PN355

MS THWAITES: Chris, would you like to - - -?‑‑‑Well, that there's only one other person that works on that site apart from the 270 something. So there's - sorry, I've lost it now - number 8. So I said 238 employees working there are for Labourpower. There's one other individual that works for a different labour hire company.

PN356

THE COMMISSIONER: Well, how do we change paragraph 8?

*** CHRISTOPHER STEVEN DUNDON XN MS THWAITES

PN357

MS THWAITES: Let's change paragraph 8 to say, 'Labourpower is the only agency at the site with the exception of one employee employed by APS.'

PN358

THE COMMISSIONER: All right. So the document is tendered with that amendment. I note the objections that are taken and set out in MFI 1. Is there anything else?

PN359

MR MARONEY: No, Commissioner.

PN360

THE COMMISSIONER: All right. Thank you.

EXHIBIT #4 WITNESS STATEMENT OF CHRISTOPHER DUNDON, UNSIGNED, DATED 13/05/2022

PN361

MS THWAITES: No further questions from me.

PN362

THE COMMISSIONER: Cross-examination, Mr Maroney.

PN363

MR MARONEY: Thank you, Commissioner.

CROSS-EXAMINATION BY MR MARONEY [12.15 PM]

PN364

Mr Dundon, in your role as a union organiser you often deal with sites with labour hire on site?‑‑‑Yes.

PN365

And you're aware that there are various different labour hire agencies that operate in the market?‑‑‑Yes.

PN366

And you as part of your role are responsible for organising both direct hire employees and labour hire employees at the various sites for which you have responsibility?‑‑‑That's correct, yes.

PN367

And in your experience you're aware that there is a higher turnover in labour within the labour hire section of those workforces than there is in the direct hire section of those workforces?‑‑‑Yes.

*** CHRISTOPHER STEVEN DUNDON XXN MR MARONEY

PN368

And you're aware also that that's the case with respect to Labourpower at the sites that you're responsible for, for Schenker?‑‑‑Yes, at Hoxton Park the casuals they're employed a lot faster than the permanents - - -

PN369

And you're aware that there are people who signed the petitions that you circulated that have now left the Hoxton Park site?‑‑‑Yes, potentially. I'm not aware of the actual individuals, but, yes.

PN370

As a union official you experience that it's more difficult to unionise a highly casualised workforce?‑‑‑Potentially, yes.

PN371

And that's because of the turnover in labour that occurs in those worksites, is that right?‑‑‑It could be, yes.

PN372

And in your experience it's more likely that permanent employees would become a member of a union than the labour hire casuals?‑‑‑No, not necessarily.

PN373

You held mass meetings with Ms Awan at the Hoxton Park Schenker site, is that correct?‑‑‑Yes.

PN374

And during those meetings you and Ms Awan explained the process of enterprise bargaining?‑‑‑Yes.

PN375

And you also handed out flyers to the relevant staff?‑‑‑Yes.

PN376

Could I hand up to the witness a document. Commissioner, this is annexure AA1 to exhibit 3 in these proceedings. Mr Dundon, is this a copy of the flyer that was circulated at the Hoxton Park site?‑‑‑Yes, it is that (indistinct), yes.

PN377

And can I take you to the second page of that document, and there is a heading there that says, 'Steps to negotiating an agreement.' Those were the steps that were explained during the mass meeting?‑‑‑I didn't read off this. I spoke just in general what the process is, of the bargaining process, and then I handed this out to everybody before they - - -

PN378

So in general terms what you said was meant to be supported by this document?‑‑‑Yes.

*** CHRISTOPHER STEVEN DUNDON XXN MR MARONEY

PN379

And what you said during those meetings didn't contradict anything that's put in this document?‑‑‑I don't believe so. It just – yes, we made it very clear what the process was for bargaining.

PN380

And you didn't state that anything that's in this document is incorrect?‑‑‑No.

PN381

Do you believe that the content of this document is correct?‑‑‑I'd need to read it. I haven't had a chance to be honest. It was just a bunch was printed out and I just - - -

PN382

So you handed them out without reading them first?‑‑‑I didn't go through it all. Like I was – I had made sure that I had explained everything exactly the way that the process was supposed to take place.

PN383

Sorry, the question I asked was you handed them out without reading them first, did you?‑‑‑Completely, yes.

PN384

When you say completely do you mean that you read parts of the document, but not other parts?‑‑‑Yes.

PN385

Did you read the part that says, 'Steps to negotiating an agreement'?‑‑‑No.

PN386

Can I take you to paragraph 6 of that part of the document?‑‑‑Yes.

PN387

You will see there that it says, 'Once we have endorsed the outcome a final document is put out for seven days for you to review and check that it is faithful to what we negotiated'?‑‑‑Yes.

PN388

Do you say that the UWU has to endorse the outcome of the bargaining process?‑‑‑No, not at all, and that's not what I explained to workers. It's got nothing – like we don't endorse anything really. It's really, you know – and what I explained to the workers is that really once, you know, the majority of workers choose to negotiate then we'd have the opportunity to meet with the company. We put forward some log of claims and, you know, every single step of the way it comes back to the workers and they would get a vote on whatever they choose to accept.

PN389

And you're aware that – are you familiar with Mr Goldthorpe?‑‑‑Yes.

*** CHRISTOPHER STEVEN DUNDON XXN MR MARONEY

PN390

And he's the delegate at the Hoxton Park site at which you attended meetings?‑‑‑That's right.

PN391

Mr Goldthorpe earlier today gave evidence that the steps that were explained were in accordance with the steps that were in this document. What do you say to that?‑‑‑He probably didn't read it either to be honest.

PN392

He understood what was being explained to him was that the UWU had to endorse the outcome of the meeting. What do you say to that? Sorry, I withdraw that. He explained that what he understood was that the UWU had to endorse the outcome of the negotiation. What do you say to that?

PN393

MS THWAITES: Objection. It calls for speculation. Mr Dundon can't know what Mr Goldthorpe was thinking when he responded to your questions in cross-examination.

PN394

MR MARONEY: I am not asking Mr Dundon to enter the mind of Mr Goldthorpe. I'm asking Mr Dundon to explain his response to the evidence given by Mr Goldthorpe.

PN395

MS THWAITES: Mr Dundon didn't hear the evidence of Mr Goldthorpe.

PN396

MR MARONEY: I put to him the evidence of Mr Goldthorpe. If there's an objection to the fairness of the question or the accuracy of the presumption in the question that objection can be heard maybe better in the absence of the witness, but that's not what I understood the objection to be.

PN397

MS THWAITES: Well, I object on the basis that the question is not fair. Mr Dundon didn't hear the witness evidence of Mr Goldthorpe. He doesn't know what he responded to specifically, and isn't in a position to respond.

PN398

MR MARONEY: My submission on that objection is that I put the evidence fairly and I am entitled to hear a response to what I put.

PN399

THE COMMISSIONER: All right. I am not suggesting that you couldn't ask the question.

PN400

THE WITNESS: Can you ask the question again, please?

*** CHRISTOPHER STEVEN DUNDON XXN MR MARONEY

PN401

MR MARONEY: Mr Goldthorpe stated that he understood from the meetings and the flyer that the UWU had to endorse the outcome of the bargaining. What do you say to that?‑‑‑I don't know why – how he would ever think that, I really don't, because that goes against – yes, against everything that we've spoken about. It doesn't – that's not the process. He shouldn't have that belief.

PN402

Had you become aware before me asking you questions about it that there was an issue about paragraph 6 of that part of the flyer?‑‑‑No.

PN403

And you gave evidence a moment ago that you didn't read that part of the flyer?‑‑‑M'mm.

PN404

And so you didn't actively seek to correct parts of the flyer?‑‑‑No. That's right. If I had of seen this I would have made sure that that was correct before handing it out to anybody.

PN405

When you were handing out the flyer it was your expectation that Labourpower's employees would accept the information that was put in it?‑‑‑Well, I explained it through mass meetings in quite detail the process, and then gave them the opportunity if they choose – if they chose to sign the petition and they got one of theirs to be able to take home and read a little bit more information about it. I went into, you know, a lot of detail in the mass meetings of what the process was. So I believe that they had a very clear understanding, and a clear choice of whether they wanted to be a part of the process.

PN406

The purpose of the flyer was to provide relevant information about bargaining to the employees, is that correct?‑‑‑Yes.

PN407

And you expected that that information would be relied upon by the employees in making their decision as to whether or not they wanted to bargain?‑‑‑I explained to them in person before they made the decision to - - -

PN408

Could I ask you to attend to the question that I've asked, which was that you intended for this document to be relied upon as part of that decision-making process, didn't you?‑‑‑Sometimes. It depends whether – most of the time it was – I guess it was a part of, yes, but not solely on this document. It was - I explained it to them first. They made a choice to be a part of the process, and then got extra information.

PN409

Who drafted this document?‑‑‑I'm not sure to be honest.

*** CHRISTOPHER STEVEN DUNDON XXN MR MARONEY

PN410

Is there a formal process within the United Workers' Union for the endorsement of documents before they're circulated?‑‑‑I'm not sure.

PN411

So you wouldn't be aware if anyone at all endorsed this document before it was handed out?‑‑‑No, I'm not – not sure, apart from my lead.

PN412

Are you currently involved in the United Workers' Union's enterprise negotiations with Schenker?‑‑‑Yes.

PN413

Are you familiar with the term 'site rates'?‑‑‑Yes.

PN414

There's a claim as part of the Schenker negotiations for site rates?‑‑‑Correct.

PN415

And it would be convenient to you if the bargaining with Labourpower were occurring at the same time as your bargaining with Schenker?‑‑‑Would it be – sorry?

PN416

More convenient to the UWU?‑‑‑Well, not necessary convenient. It gives me more (indistinct).

PN417

You would accept, wouldn't you, that it would make the campaigning more efficient?‑‑‑Again I don't know if it would make it more efficient. It came down to the members make a decision that they wanted to bargain and improve their conditions.

PN418

That's the cross-examination, Commissioner.

PN419

THE COMMISSIONER: All right. Thank you. Any re-examination, Ms Thwaites?

PN420

MS THWAITES: Yes.

RE-EXAMINATION BY MS THWAITES [12.28 PM]

PN421

MS THWAITES: Mr Dundon, at the mass meetings that are referred in your witness can you explain in what order you undertook those meetings?‑‑‑In what order? Of which site that we went to?

*** CHRISTOPHER STEVEN DUNDON RXN MS THWAITES

PN422

In what order you delivered information to the workers?‑‑‑So I spoke to them at length about what the process was, and obviously sort of went through the steps of if you would like to choose to bargain with your employer, and we - the majority of workers choose and sign the petition they would have an opportunity to potentially negotiate, and we sort of went into detail about what that process was, if they made the choice to – then they came and signed the petition, and then I gave them one of these for more information to take - - -

PN423

You gave them the petition after they'd signed it?‑‑‑Yes.

PN424

No further questions.

PN425

THE COMMISSIONER: All right. Thank you very much for giving your evidence. You're released and discharged, thank you?‑‑‑Thank you.

<THE WITNESS WITHDREW [12.29 PM]

PN426

THE COMMISSIONER: Right. That concludes the evidence for the applicant, does it, or am I missing someone?

PN427

MS THWAITES: No, that concludes the evidence of the applicant, your Honour.

PN428

THE COMMISSIONER: Mr Maroney, do you want to move straight on or do you want a break for lunch and then have your evidence, how would you like to do it?

PN429

MR MARONEY: I am content to proceed, Commissioner. I don't know how long my friend proposes to be in cross-examination with Ms Spencer. I do have some brief opening remarks, and maybe I can deliver those. I also have some brief examination-in-chief of Ms Spencer to elaborate on some material that has come out today. It might be convenient if I open, do the examination-in-chief and then we can take a lunch break prior to cross-examination.

PN430

THE COMMISSIONER: That might be a convenient way to do it. All right.

PN431

MR MARONEY: Thank you, Commissioner. As I said I will be brief in opening. We have put on of course detailed written submissions in the proceedings. The one thing that I wanted to say in opening is this is not a case about 72 employees and whether or not they are in or out for the purpose of the majority. This is a case rather about the appropriate time over which the majority should be ascertained.

*** CHRISTOPHER STEVEN DUNDON RXN MS THWAITES

PN432

The evidence that Ms Spencer gives goes to the nature of the industry in which her company operates, and to the nature of that operation itself. There are consequences for that evidence, vis-à-vis fairly chosen issues, which I will come to in closing submissions, and there are consequences for that with respect to the viability of there being a majority at a particular point in time or a particular period of time, and the maintenance of that majority, and the effect of that on the reasonableness of making a majority support determination in the proceedings. That's all I wish to say at this point in time, unless I can assist the Commission further, but otherwise I call Ms Spencer.

PN433

THE COMMISSIONER: All right. Thank you.

PN434

THE ASSOCIATE: Please state your full name and address for the record.

PN435

MS SPENCER: Kitty Spencer, (address supplied).

<KITTY SPENCER, AFFIRMED [12.32 PM]

EXAMINATION-IN-CHIEF BY MR MARONEY [12.32 PM]

PN436

MR MARONEY: Thank you, Ms Spencer. Could you state your position with Labourpower?‑‑‑National HR manager.

PN437

And you've taken with you into the witness box two documents. Can I take you to the first document, and that's a document with a heading that says 'Witness statement of Kitty Spencer.' It has 35 numbered paragraphs and is signed by you on 1 June 2022 and has seven numbered annexures. Do you have that document with you?‑‑‑I do, yes.

PN438

Is that document true and correct to the best of your knowledge and belief?‑‑‑It is.

PN439

I tender that, Commissioner.

PN440

THE COMMISSIONER: Is there any objection to its admission?

PN441

MS THWAITES: No objection.

PN442

THE COMMISSIONER: Thank you. The document is tendered and admitted.

*** KITTY SPENCER XN MR MARONEY

EXHIBIT #5 WITNESS STATEMENT OF KITTY SPENCER DATED AND SIGNED 01/06/2022

PN443

MR MARONEY: The second document you have with you, Ms Spencer, is titled 'Confidential statement of Kitty Spencer', and is six numbered paragraphs long, signed by you on 1 June 2022 and has two attachments numbered KS8 – sorry, I withdraw that – has four numbered paragraphs numbered KS8, 9, 10 and 11. Do you have that document in front of you?‑‑‑I do, yes.

PN444

Is that true and correct to the best of your knowledge and belief?‑‑‑It is.

PN445

Commissioner, this was provided to the Commission on a confidential basis. I would seek to tender this, but subject to confidentiality orders being made with respect to the content of the annexures to that statement.

PN446

THE COMMISSIONER: Did you have some draft order you wanted me to endorse, or what is - - -

PN447

MR MARONEY: I don't. I can provide that to chambers shortly after this, but it would simply be that annexures KS8 through 11 of the confidential witness statement not be published or disclosed to any other person.

PN448

THE COMMISSIONER: Ms Thwaites, do you have any objection to that?

PN449

MS THWAITES: I don't have any objection.

PN450

THE COMMISSIONER: No. It's not really in contest I don't think. The union has accepted the veracity of this material without sighting it, and as we went through earlier on it's usually the Commission that would be comparing this list with a list of names that we try to decipher on a series of petitions, but that's all been done for us this time.

PN451

MR MARONEY: Yes.

PN452

THE COMMISSIONER: But I think just for convenience we can have this document marked as exhibit 6 and the record will demonstrate – I think we can just mark exhibit 6 as being confidential and it won't be disclosed or publicised in any form.

*** KITTY SPENCER XN MR MARONEY

PN453

MR MARONEY: Thank you, Commissioner.

EXHIBIT #6 CONFIDENTIAL STATEMENT OF KITTY SPENCER SIGNED AND DATED 01/06/2022

PN454

Thank you. With the Commission's leave I might ask her a few brief questions.

PN455

THE COMMISSIONER: Further evidence-in-chief from this witness. Yes, all right.

PN456

MR MARONEY: Thank you. Ms Spencer, at paragraph 8 of what I will call your open witness statement, so not the confidential witness statement, you give evidence that Labourpower is a specialist industrial recruitment company that provides labour hire services to clients across different industries. What industries – and some of those industries are named – which of the industries is the largest that you deal with?‑‑‑That would be warehousing.

PN457

And roughly what portion of Labourpower's workforce work in the warehousing industry?‑‑‑Close to 40 per cent.

PN458

And when you say that Labourpower operates labour hire services to clients across different industries how does that affect the way in which Labourpower organises its workers?‑‑‑It doesn't affect the way in which we organise our workers. They were all recruited and organised in the same way.

PN459

And there has been some evidence about the various fluctuations of labour demand that Labourpower caters to. What steps do you take to fulfil unexpected peaks in demand?‑‑‑So if we have unexpected peaks we will try to recruit first from our internal job pool, so people who have already been inducted on a certain site or people that have been through the recruitment process and are compliant. If we're still looking for additional staff members we'll commence the recruitment process and recruit additional people into Labourpower.

PN460

Does that mean that the employees are earmarked for one particular client or another?‑‑‑No, they're not at all.

*** KITTY SPENCER XN MR MARONEY

PN461

And how does that operate within your business?‑‑‑So an employee will have to go through the exact same recruitment process for Labourpower. They're inducted into Labourpower first. Once they're fully compliant they will be assigned to a certain client, depending on what orders need to be filled at that time, and there's no guarantee that they'll continue working at that client, they move around between clients wherever the demand is.

PN462

At paragraph 24 of your witness statement you give evidence that 133 new employees commenced with Labourpower with induction into Schenker following the period of the petition that was circulated. Is that a regular amount of turnover for a period of that length?‑‑‑Yes, it is, yes.

PN463

And you also give evidence of some 72 people who have left proposed coverage of the agreement within a similar time period. Is that also a regular amount of turnover for that period?‑‑‑Yes.

PN464

Now, as an HR manager you have – what functions do you perform in operating or in providing assistance to employees at Schenker?‑‑‑The only involvement that I would have with employees at Schenker is if matters are escalated to me in terms of complaints or grievances.

PN465

So you have a grievance and complaint handling function as a human resources manager?‑‑‑That's correct. Yes.

PN466

Is that the same or different to other employers - sorry, other host clients?‑‑‑That's the same.

PN467

In terms of - at paragraph 29(b) of your witness statement you discuss a process that whereby staff members become inactive within Labourpower's system, how does that process work?‑‑‑So the process is either done by Scarlett who's our artificial intelligence recruiter, so she'll reach out to our candidates and ask them if they're still interested in working for Labourpower. If they say, 'No', then she'll inactivate them in FastTrack or it's done by our recruitment consultants who either the candidate will indicate that they're not interested in work anymore so they will inactivate them or we will inactivate them due to a variety of reasons.

PN468

And at paragraph 21 of your witness statement, you say there are approximately 973 employees that have been inducted unto Schenker, are those all of Labourpower's employees?‑‑‑No. No, they're not.

PN469

How many employees does Labourpower have?‑‑‑We have approximately 6,000.

PN470

So is that nationally or ‑ ‑ ‑?‑‑‑That's nationally, yes.

PN471

And how many employees does Labourpower have in New South Wales?‑‑‑approximately 2,800.

*** KITTY SPENCER XN MR MARONEY

PN472

And you said before that the main industry in which Labourpower operates is warehousing, was that on the basis of the number of employees in warehousing overall?‑‑‑That is, yes.

PN473

And that's the examination‑in‑chief, Commissioner.

PN474

THE COMMISSIONER: All right. So the most convenient thing now would be to take the lunchbreak and then after that we're going to resume with the cross‑examination of this witness. There's no - I don't think there's any other witnesses for the respondent.

PN475

MR MARONEY: There's not, Commissioner.

PN476

THE COMMISSIONER: No.

PN477

MR MARONEY: I might say - this might be a question for my friend, we do have about 20 minutes until 1 o'clock. I don't know how long my friend proposes to be. It might be that I was swifter that I'd otherwise planned on being. I don't know if my friend wants to proceed or not.

PN478

MS THWAITES: I'd prefer - my preference to break for lunch now (indistinct), sorry, I know I did say that ‑ ‑ ‑

PN479

MR MARONEY: that's all right.

PN480

THE COMMISSIONER: We can all come back without any hunger pain.

PN481

MS THWAITES: Yes.

PN482

THE COMMISSIONER: Yes, all right. So we'll resume again in about an hour's time.

<THE WITNESS WITHDREW [12.43 PM]

LUNCHEON ADJOURNMENT [12.43 PM]

RESUMED [1.52 PM]

*** KITTY SPENCER XN MR MARONEY

PN483

THE COMMISSIONER: All right. Thanks, Ms Spencer's in the witness box, I think, ready to go.

PN484

MR MARONEY: She'll be recalled to the witness box.

PN485

THE COMMISSIONER: Yes, thank you.

<KITTY SPENCER, RECALLED [1.52 PM]

CROSS-EXAMINATION BY MS THWAITES [1.52 PM]

PN486

THE COMMISSIONER: Ms Thwaites.

PN487

MS THWAITES: Thank you, Commissioner.

PN488

Ms Spencer, all of the employees of Labourpower performing store worker duties at the Schenker sites are employed on a casual basis, aren't they?‑‑‑Yes.

PN489

And because they're employed on a casual basis, they have no guarantee of ongoing work with Labourpower, is that correct?‑‑‑Yes.

PN490

Yes. And in your experience, it's common for employees to be inducted on site, work one or two shifts and then leave the site, isn't it?‑‑‑Yes.

PN491

And due to the nature of casual employment sometimes employees will be unavailable for work for many reasons like studying or going on holiday or going to work somewhere else temporarily and then return to the site at a later date, wouldn't they?‑‑‑Yes.

PN492

And all of this is true for the Schenker sites, isn't it?‑‑‑Yes.

PN493

And do you keep records of workers who've been inducted in the Schenker sites or another host client site so you know who can be offered work there again in the future if needed?‑‑‑Yes.

PN494

At the Schenker sites, you would agree that there's a constant pool of Labourpower employees there every week of the year, right?‑‑‑Yes.

*** KITTY SPENCER XXN MS THWAITES

PN495

And while there are fluctuations and peak periods there is a presence year round even in quiet periods, that's correct?‑‑‑Yes.

PN496

And you would agree that there are Labourpower employees who've been working at the Schenker sites for a year or more, is that correct?‑‑‑Yes.

PN497

Yes. And there'd be others who were working there in a medium term sense being up to six months or less, is that right?‑‑‑Yes. That's right.

PN498

Yes. And that's on top of that pool of fluctuating workers who are often only there for a shift or two?‑‑‑Yes.

PN499

Yes. And Labourpower employs consultants to manage the portion of the Labourpower workforce deployed to work at the Schenker sites?‑‑‑Sorry, just repeat that question.

PN500

Labourpower employs consultants who manage the portion of the Labourpower workforce deployed to the Schenker site specifically?‑‑‑There are consultants, yes. Yeah.

PN501

And those consultants attend the Schenker sites?‑‑‑Yes.

PN502

And you would agree that Schenker management oversee the operations at the Schenker sites?‑‑‑Yes.

PN503

And that Schenker management direct the Labourpower workers in their daily tasks and duties?‑‑‑Yes.

PN504

And you would agree that Labourpower has no operational control over the work that is performed at the Schenker sites?‑‑‑No.

PN505

You agree?‑‑‑I agree, sorry, yes.

PN506

And if you received negative feedback from Schenker about an employee and Schenker asks you to remove that employee from that site you would do that?‑‑‑Yes. If we thought that the reason was fair.

*** KITTY SPENCER XXN MS THWAITES

PN507

As you have done with five employees who have signed the petition in your evidence.

PN508

MR MARONEY: Objection. I think that misstates Ms Spencer's evidence.

PN509

MS THWAITES: I'll withdraw and (indistinct), is that all right? All right. It's me. Apologies everybody. All right.

PN510

Now, in your witness evidence you identified that there are five employees of Labourpower who were working at Schenker and who signed a petition but who are no longer working there due to negative feedback from the client, is that correct?

PN511

MR MARONEY: Could I ask my friend to direct the witness to the part of the statement she's referring to?

PN512

MS THWAITES: Yes. Paragraph 29(b)?‑‑‑Yes, that's correct. Yes.

PN513

Yes, all right. And that's on the basis of negative feedback from the client being Schenker, is that correct?‑‑‑Correct, yes.

PN514

Yes, all right. And if you receive feedback from Schenker that they like a worker of Labourpower, they like one of your employees and they want them to keep working, you can facilitate that, can't you?‑‑‑If the employee also agrees.

PN515

Yes. At paragraph 31 of your witness statement you say that 543 employees work within the petition period being 21 March till 7 April 2022, is that correct?‑‑‑Yes.

PN516

Yes. And at paragraph 29(b) you indicate that there are 36 names on the petition which you have highlighted and read in the annexure to your statement KS6 who are inactive in your system, is that correct?‑‑‑Yes.

PN517

And when you calculated the total number of those employees who worked during the petition period, you did not discount any of those names who are highlighted in red, did you?‑‑‑No.

PN518

At paragraph 29(c) of your statement, you indicate that a further 38 names highlighted in orange in the annexure KS6 appearing on the petition that are active in the system, is that correct?‑‑‑Yes.

*** KITTY SPENCER XXN MS THWAITES

PN519

And of those 38 workers highlighted in orange, they all worked at a Schenker site and have been inducted in the Schenker site, that's correct, isn't it?‑‑‑Yes.

PN520

And of those 38 workers highlighted in orange all being active in your system and employed by Labourpower, all could potentially work at Schenker sites again, couldn't they?‑‑‑They could, yes. Yes.

PN521

And when you calculated the total number of those employees who worked during the petition period, you did not discount any of the names of those employees highlighted in orange, did you?‑‑‑No.

PN522

In your witness statement you indicate that employees of Labourpower work in several different industries including cleaning services, manufacturing, logistics and events, is that correct?‑‑‑Yes.

PN523

So employees who work with different clients would be covered by different industrial instruments and different modern awards, is that correct?‑‑‑Yes.

PN524

And some employees would be working with clients where Enterprise Agreements apply and where site rates clause applies meaning that Labourpower employees can receive wages and conditions consistent with various Enterprise Agreements, is that correct?

PN525

MR MARONEY: Objection. That misstates the effect of a site rates clause in respect of this witness' responsibilities. That is, there's no obligation on Labourpower directly which applies to the result of those types of clauses and it's unfair to suggest to her that that's the case.

PN526

THE COMMISSIONER: Well, it would depend on the clause.

PN527

MR MARONEY: Well, if Labourpower is not covered by the Enterprise Agreement, it cannot have any obligations in accordance with the Enterprise Agreement.

PN528

THE COMMISSIONER: I'm not sure that's correct.

*** KITTY SPENCER XXN MS THWAITES

PN529

MR MARONEY: If it please the Commission an Enterprise Agreement can only have binding effect on the parties to it that's provided for in the relevant parts of the Fair Work Act which apply to coverage and application of Enterprise Agreements. A third party or a stranger to an Enterprise Agreement in the same way as a stranger to a contract cannot be bound by its terms.

PN530

THE COMMISSIONER: That's not a suggestion that it's being bound by the terms.

PN531

MR MARONEY: If that's not the suggestion that's being put to the witness that could be clarified.

PN532

THE COMMISSIONER: Well, perhaps it's a matter of clarifying the question.

PN533

MS THWAITES: Ms Spencer, you deploy Labourpower employees to sites where an Enterprise Agreement applies to the client - host clients employees and some of those agreements will contain sites rates clauses that you will apply, is that correct?‑‑‑Yes. That's correct.

PN534

And you will apply them as a matter of assisting your host client to ensure its own compliance with that Enterprise Agreement presumably, is that right?‑‑‑Our client directs us with rates of pay, yes.

PN535

Yes, all right. So you would be experienced in dealing with many different industrial instruments both modern awards and Enterprise Agreements in order to perform your HR duties for Labourpower, wouldn't you?‑‑‑Yes.

PN536

No further questions.

PN537

THE COMMISSIONER: Any re‑examination, Mr Maroney?

RE-EXAMINATION BY MR MARONEY [2.00 PM]

PN538

MR MARONEY: Ms Spencer, you were asked a question about the role of Labourpower consultants at Schenker, can you explain what their role is?‑‑‑So they are employed by Labourpower to manage our workforce on Schenker sites so that would be performance management and recruitment of staff for that site.

PN539

Is that any different to how it operates on other client sites?‑‑‑No different.

*** KITTY SPENCER RXN MR MARONEY

PN540

And are there Labourpower consultants employed - I withdraw that. Where else are Labourpower consultants employed?‑‑‑At many of our different host employers.

PN541

And are Labourpower consultants appointed to any particular client for the life of their employment?‑‑‑Not for the life of their employment, they can move around from employer host to host.

PN542

Thank you, Commissioner. That's the re‑examination.

PN543

THE COMMISSIONER: Thank you.

PN544

Could you just clarify for me has Labourpower issued any offers of casual conversion as it's described to any of its employees?‑‑‑No, we haven't.

PN545

Have you issued to the employees notices indicating a reason why you haven't done that?‑‑‑Yes, we have.

PN546

You've done it, the 66C notifications have been made, have they?‑‑‑Yes. That's correct. Yes.

PN547

To ever (indistinct) you could identify that might quality 12 months and regular systematic within six?‑‑‑That's right, yes.

PN548

Right. And have you had responses from the employees to those communications?‑‑‑Not as yet, no.

PN549

So this has only been done recently?‑‑‑No, it's been done as soon as they hit their 12 months.

PN550

Right. But you've not received responses in writing from the employees?‑‑‑No.

PN551

No. All right. All right. Thank you for clarifying that.

PN552

Anything arising from my questions at all? No?

PN553

MR MARONEY: Just one question. Sorry, Commissioner.

*** KITTY SPENCER RXN MR MARONEY

PN554

Have any other employees at Schenker sites approached Labourpower with respect to casual conversion outside of the process you just discussed?‑‑‑Not to my knowledge, no.

PN555

Thank you, Commissioner.

PN556

THE COMMISSIONER: All right. Thank you very much for giving your evidence. You're released and discharged. Thank you.

<THE WITNESS WITHDREW [2.03 PM]

PN557

THE COMMISSIONER: All right. Does that conclude the evidence for the respondent?

PN558

MR MARONEY: It does, Commissioner.

PN559

THE COMMISSIONER: So it's just submissions now. How do you want to deal with that? We've got documents, do we - each side want to speak to their documentary material and did you want to do that in the fashion of the applicant, respondent and the applicant reply or did you want the respondent and then the applicant and just do one set, I don't mind how you do it.

PN560

MR MARONEY: I think the usual order suits us, Commissioner.

PN561

MS THWAITES: Same for us. The applicant can go first and we can ‑ ‑ ‑

PN562

THE COMMISSIONER: All right. You can go first and last. All right. All right.

PN563

MS THWAITES: No worries.

PN564

THE COMMISSIONER: Are you ready to proceed on that basis, Ms Thwaites?

*** KITTY SPENCER RXN MR MARONEY

PN565

MS THWAITES: I am. Thank you, Commissioner. If it please the Commission, I won't repeat the elements of the Act that must be met here in order to make the determination. I'll just confine my closing to the issues that are in dispute. The dispute here does lie in the following questions, what time should be determined by the Commission to fix the cohort of employees against which a majority support must be tested.

PN566

What is the meaning and effect of the words, 'You will be covered by the agreement in section 237(2)(a).' Is there evidence of majority support for bargaining among the relevant employee group? Is the group fairly chosen? Is it reasonable in the circumstances to make the determination?

PN567

So first, I will address the question of the time in which the Commission should determine the relevant cohort of employees from which the majority support can be ascertained. The question of majority can only be determined once the relevant cohort has been fixed precisely because the problem of employee turnover would otherwise make the exercise fluid and uncertain due to turnover of labour which is a quote from the Lovisa decision.

PN568

Once identified, it is from this group that the question of majority support bargaining must be assessed. It's our submission that the point in time to fix the employee cohort should be a period of time being the petition period between 21 March and 7 April 2022. We submit that this is an appropriate period because it was the only period in which employees had the opportunity to express their opinions on bargaining and is not otherwise unfair or unreasonable.

PN569

Unless there is evidence of the period submitted in some way gives rise to unfairness the period when the question was posed to employees, 'Do you want to bargain', should be a relevant period. In circumstances where there is high turnover or significant movement in employee numbers, it's artificial to select a period of time when employees had no ostensible vehicle to (indistinct) expressing their wish to bargain and in circumstances where there are no other relevant periods where employees were given the opportunity to bargain, we submit that the petition period is the most reasonable period to fix the employee cohort.

PN570

So the union has established support for bargaining from, and you are correct, Commissioner, it's 315, 315 employees from a potential pool of 543 in that petition period. If the Commission determines that the four‑week period is appropriate then it's 315 out of 598 which is still evidence of majority support but it's not our first submission which is that the petition period's appropriate because the reality is that extending that period by one week effectively includes in that cohort a number of workers who are likely to have churned out who were never asked if they want to bargain.

PN571

The respondent does not adduce any competing evidence that any employees who signed the petition change their minds and no longer wish to bargain with Labourpower or that there is otherwise any opposition to bargaining among the group chosen.

PN572

The respondent submits the 72 persons who signed the petition should be discounted from the evidence of majority support because they have left the scope of the proposed agreement and therefore do not meet the criteria of 237(2)(a) which requires that they will be covered by the agreement and here we rely on our written submissions and those made in my opening that the words, 'Will be covered', simply require that the employee cohort that is fixed by the Commission also work within that scope otherwise that's the function of the wording there, 'Make sure they work within the scope', so that you're note testing from a group of all of the employees whether majority support exists.

PN573

Ms Spencer identified 543 employees within that group which we accept. Now, in Lovisa, Deputy President Colman held that the provisions of subdivision C of Division A, part 2‑3 of the Act contemplates several stages or events, an application being made under section 236, the Commission determining a time at which in scope employees are employed for the purposes of section 237 and an assessment of the question of whether there is majority support among those persons who wish to bargain.

PN574

The question then turns to whether there exists majority support among those persons who within the cohort fixed by the Commission otherwise there is no point in fixing the cohort at all. The purpose of identifying the cohort is to deal with the issues of turnover and fluidity in the employee group so it's possible to determine whether the majority support are providing it actually exists.

PN575

There is clearly majority support amongst that cohort and the 72 needs identified should be included in the evidence of the majority support as they are included in the cohort that worked in the petition period. Now turning to the Lovisa decision again and the Deputy President's consideration of the Kantfield decision, he said to provide an example:

PN576

The Commission might exercise its discretion to determine 1 January to be the time at which the cohort of employees is to be fixed, and on 1 February (the date of its decision) determine whether a majority of employees employed at 1 January wishes to bargain. Evidence about employees' wishes, such as petitions, produced throughout January and up until 1 February could be taken into account in determining whether a majority existed. The question for the Commission would be whether, as at 1 February, a majority of the employees who were employed as at 1 January wished to bargain.

PN577

So the critical period then is where you fix the cohort and then the most recent evidence of majority support for bargaining, support for bargaining not employee numbers is what's to be determined. The purpose of fixing a cohort is not to then reprosecute the inquiry later on if there's evidence that employees have moved around or have moved out of that cohort.

PN578

Looking more closely at the evidence of Ms Spencer, it's clear that 38 out of 72 of those employees that the respondent seeks to discount from evidence of majority support are still active in Labourpower's system. They've been inducted at Schenker and they may work there again at any time. They, at the very least, must be counted in the evidence of majority support. Even excluding the 36 who are inactive in the system which we'd submit you shouldn't ‑ ‑ ‑

PN579

THE COMMISSIONER: Is it 36 or 34?

PN580

MS THWAITES: I don't have a calculator on me.

PN581

MR MARONEY: I thought it was 36 in both groups.

PN582

MS THWAITES: I thought it was 36 and 38.

PN583

THE COMMISSIONER: No, 34 and 38, I think it is but anyway, it adds up to 72.

PN584

MS THWAITES: Yes. All right.

PN585

THE COMMISSIONER: If you've got 38 then it has to be 34, I think.

PN586

MS THWAITES: You're better at maths than I am, Commissioner, I need a calculator.

PN587

THE COMMISSIONER: Well, not necessarily but I mean, I've just written it down here because I spent yesterday afternoon going through all of this.

PN588

MS THWAITES: Yes. If you'll just give me one second, I'll double‑check those numbers.

PN589

THE COMMISSIONER: It's a great way to spend the Queen's birthday long weekend. See 30 - if you do 38 and 34 you get 72.

PN590

MS THWAITES: Yes, it's 34.

PN591

THE COMMISSIONER: Yes. So - yes.

PN592

MS THWAITES: Thank you. Thank you for that.

PN593

THE COMMISSIONER: I think it's 34 that are in the red inactive.

PN594

MS THWAITES: Yes.

PN595

THE COMMISSIONER: And 38 that are in the orange, not necessarily rolled into the inactive but they haven't worked a shift since the end of the period of the petition.

PN596

MS THWAITES: Yes, which by my count would mean if you added those active in the system could be sent back to the site, might have been sent back to the site since the evidence was filed.

PN597

THE COMMISSIONER: Well, it could be what happened after 1 June.

PN598

MS THWAITES: Yes.

PN599

THE COMMISSIONER: There might be a new list today. I don't know. How long does this keep going for?

PN600

MS THWAITES: Well, that is the point, Commissioner. We need to fix a time at which to determine what the cohort is and in any particular period of time subject to delays, there's going to be issues with the turnover but there's nothing in the act that suggests that a business model like this one where all of the workforce is casualised, that those workers should be excluded from the bargaining framework or should be prevented as a consequence of the precarity of their employment from participating in bargaining with their employer.

PN601

In fact, that is the whole purpose of fixing the cohort, that's what the decisions tell us. The purpose is to deal with fluidity in the employee number and to deal with turnover.

PN602

THE COMMISSIONER: But if there's - it seems then though that what that does in a de facto way is give the union the opportunity to determine the time because if you're right about all of that, it's going to be the time at which essentially the opportunity for expressing your view about the bargaining ceases.

PN603

MS THWAITES: Yes, but it was open to the respondent at any point to test the views of their employees and to obtain evidence that would have suggested that employees had changed their mind or that new employees did not want to bargain and they've opted not to do that.

PN604

THE COMMISSIONER: But don't we have to ensure that there hasn't been some opportunistic sort of approach where a particular period that the union has determined because it seems to be that if your approach is correct, it seems to be that the union gets to sort of pick that. Now, it could have picked a particular period of time which is not really reflective of the correct circumstances.

PN605

In other words, it could have picked a period of time when there were a fewer number of employees than would ordinarily be the case and so that assisted in getting the numbers up, if you follow what I'm saying.

PN606

MS THWAITES: I do. I do. It was our submission that the fact that it is a three‑week period in the middle of the year, March to April, was intended not to make that count artificial so it wasn't one day, it wasn't one week, where other employees who were regularly there were excluded. In fact, 243 of those employees who are undisputed have continued to work throughout that entire period. While there is fluctuations, if the fluctuations are as constant as the employee says, when is the appropriate time to do it? How do you balance those ‑ ‑ ‑

PN607

THE COMMISSIONER: All right. So you say there's nothing particularly sinister about the particular time between 21 March and 7 April.

PN608

MS THWAITES: No. The evidence of the respondent seems to be suggesting that there was a quieter period during Easter and the evidence of Mr Kadiwala said, 'Maybe.' The evidence of Mr Goldthorpe said, 'Maybe.' Both of those delegates have a selective view of what's going on in either of their warehouse, they don't crossover all five warehouses. So that evidence needs to be read in the context of the limitations of their experience.

PN609

There's no other evidence that some other sinister approach was taken here. What we have got in our evidence is that there are peaks that are in line with the product launch. Product launch comes through from the customer of DB Schenker and then onto Labourpower. We don't know when a product launch is.

PN610

THE COMMISSIONER: I suppose the other thing that strikes me about this is the numbers that might be involved and they fluctuate obviously, how does that translate into there being potentially more support from a particular group than another group? Would the ratio not remain reasonably constant between a large group of a thousand and a smaller group of 500 at a different time?

PN611

I don't know. I mean, there's no evidence about why a smaller group, if it was specifically a small - a period of time that had a smaller group might produce a different ratio of people, essentially supporting the petition as opposed to a bigger group, I don't know.

PN612

MS THWAITES: Well, that's right. It's the same challenge. It's proportionate to whatever the size of the actual workforce at that particular time is, it was working within that period.

PN613

THE COMMISSIONER: It's - right.

PN614

MS THWAITES: The question for the Commission is just to determine that time on the evidence available and there is only one time where it was possible to ascertain support or otherwise for bargaining. There's no other evidence before the Commission.

PN615

THE COMMISSIONER: It just gets me back to that initial point then, it seems to be that if that's the correct approach it is really the union that determines the timing of this.

PN616

MS THWAITES: It can be unless the respondent makes alternative submissions about a separate period that should be considered where employees are provided with an opportunity to give their views about bargaining and I think that's really the key point. When were employees given an opportunity to provide their views about bargaining?

PN617

That could be a number of different times and in other applications it has been a number of other times then there's something for the Commission to determine, which is the most appropriate period.

PN618

THE COMMISSIONER: I think there have been instances where the employer's gone out and conducted its own sort of ballot, if you like, and we've had instances where we've seen the same names appearing on the list of the petition and those - that the employers gather to say that they don't want to bargain so ‑ ‑ ‑

PN619

MS THWAITES: Yes, it can become a bit of a tug of war which is not necessarily what we want to see here but if there is continued uncertainty about the majority and the size of the majority then the union would be supportive of the Commission issued - a Commission order to run a ballot which the union could facilitate through an independent ballot agent provided that the Commission was prepared to determine a time that we could all agree on.

PN620

Run another ballot, provide some kind of opt out service so that employees might deal with any privacy concerns that come out and don't want to participate and then reprosecute the question on new evidence having already resolved the question of the period of time, that's something that we will suggest might be a way forward.

PN621

THE COMMISSIONER: Are you inviting that as a solution?

PN622

MS THWAITES: Yes.

PN623

THE COMMISSIONER: Has the company considered that before now? Has that been put to the company before now?

PN624

MS THWAITES: It was put to the company this morning.

PN625

THE COMMISSIONER: Right. All right. Sorry, I've interrupted you.

PN626

MS THWAITES: No, you're welcome to, Commissioner. Those are the main points that I want to make about that period that really the function of applying this time‑based limitation is about stabilising the employee group. If there's then further evidence about whether those employees have moved again, we're just reprosecuting the same question and the purpose of confining that employee group and dealing with this issue of turnover and uncertainty that must be dealt with to make these applications viable to make it possible to assess whether a majority exists at all, that becomes completely useless.

PN627

So we say that what the Commission must do is determine the period of time, fix the employee cohort and then consider what evidence exists of support for bargaining from within that cohort. If the Commission's not persuaded as to that particular submission, then as I have said, I'll repeat that including those 38 employees who are active in Labourpower's system and they return to the site, it could be deployed there, have been inducted, have worked there before, that brings the number to 281 out of 543 in the petition period which still establishes majority support for bargaining.

PN628

If it please the Commission, I'll now turn to the question of whether the group was fairly chosen.

PN629

THE COMMISSIONER: Hang on a minute. It seems we've got a problem with our recording. The numbers are going around but does that mean it's working? I don't know. Just by way of explanation, we've got new equipment that's been installed and this week is sort of one of the early weeks of it being tested out and ‑ ‑ ‑

PN630

MS THWAITES: It's going smoothly I see.

PN631

THE COMMISSIONER: Like most of these things, you've got - sometimes you have to switch them off and wait a minute and then turn them back on again, that sort of seems to be ‑ ‑ ‑

PN632

MS THWAITES: That's the hack, that's the universal hack. You turn it off. You turn it on again.

PN633

THE COMMISSIONER: But - are we right? We're recording now, I think. We're all right. All right. Please continue.

PN634

MS THWAITES: Turning now to the question of whether the group was fairly chosen, as the proposed coverage does not include all those employed by the respondent, the Commission must consider whether the group is operationally, organisationally and geographically distinct as part of its consideration. None of these questions will be determinative and all can involve a matter of degree.

PN635

It appears to be conceived that the group is geographically distinct working at the Schenker logistic sites in the State of New South Wales. Turning to the question of whether the group is operationally distinct. We substantially seek to rely on our written submissions here but it is pertinent to point out that the group performs warehousing duties including picking, packing, receiving and despatch for the benefit of one specific labour hire - Labourpower client, Schenker, on whose premises they work.

PN636

It is that relationship with Schenker and the control that Schenker has over the work of those employees that renders them operationally distinct from other employee groups who are directed and controlled by other host clients. That's what makes this group distinct. Organisationally, Labourpower relies on the feedback and requirements of Schenker and its operations to dictate the conditions under which Labourpower employees work.

PN637

Schenker determines the number of employees and specifically who out of Labourpower's employee core is required to work and what jobs they will perform. They decide if they - we've heard from the evidence of Ms Spencer that they make determinations about whether the performance of an employee is not satisfactory and so that employee should be removed from the site and essentially Labourpower has structured its organisation in order to respond to those directions and that advice from Schenker.

PN638

That makes this group distinct. Labourpower is dependent on Schenker for its volumes of work at the site in the same way that Schenker is dependent on its customers being a third party logistics provider for its volumes of work at the sites. There's no constructive difference and no reason why the Schenker workers are fairly chosen since they have an Enterprise Agreement but a group chosen on the same basis being employed by Labourpower is not.

PN639

THE COMMISSIONER: But the - sorry, but the Schenker employees don't go off to other sites, that's the - the difference here is that these employees tomorrow could be working at Toll Logistics at Granville or something, you know, they could be anywhere.

PN640

MS THWAITES: Well, that's not what the evidence establishes. The evidence establishes that there are long‑term employees there and medium term employees there and that they're working there on a consistent basis, that they're there every day.

PN641

THE COMMISSIONER: But not all of them are like that.

PN642

MS THWAITES: Not all of them, no.

PN643

THE COMMISSIONER: No. That's a distinction where the Schenker employees that are there every day. They go to the same site every day.

PN644

MS THWAITES: Yes, they go to the same one - and the same five sites every day.

PN645

THE COMMISSIONER: Yes.

PN646

MS THWAITES: They move between those five sites. These workers could move. As we've said that distinctiveness can be a matter of degree and in this case we'd say that's the case. The evidence of Mr Goldthorpe and Mr Kadiwala is that Schenker has considerable control over the Labourpower workforce and that Labourpower has no control over the work performed by Labourpower workers at the site. Schenker detects the policies and the procedures that guide their work.

PN647

The evidence of Ms Spencer establishes that Labourpower maintains records of employees who have been inducted at Schenker so it can continue to send them to work at Schenker sites. Labourpower collects feedback from Schenker as to the performance of its employees and then removes them from the site on the basis of that feedback. Labourpower employs consultants whose job it is to maintain relationship with the client and make sure that that client is receiving the support that it needs and that the workers are showing up on time and follows up those workers for that particular client.

PN648

Now, it might be on the evidence of Ms Spencer that those consultants will look after a number of different clients in the course of their entire career with Labourpower but clearly these people have dedicated resources to one particular or a number of different clients. These consultants attend the site daily, that's contained in the written evidence submissions of the delegate group. They're there at the site every single day.

PN649

This group chosen hasn't been chosen on some discriminatory basis, it's organisationally, operationally and geographically distinct from other employees within the Labourpower business and therefore the Commission must find that the group is fairly chosen.

PN650

If it please the Commission, I'll now address the grounds on which the respondent argues against the application on the basis of reasonableness. The first of the respondents' objections relates to the level of employee turnover. As previously highlighted, there is nothing in the Fair Work Act to suggest that employees should be excluded from bargaining on the basis of their casual employment arrangements.

PN651

Yes, it does introduce some complexity in establishing majority determining what the cohort is but there's nothing there to suggest that just because they're employed on a casual basis they should be excluded from bargaining. It's also evidenced that there are consistent long‑term employees, up to four years, that Labourpower workers are remaining at the Schenker sites.

PN652

The exercise in fixing the employee cohort by determining a time at which employees are employed is intended to address this problem and it's evidenced that the drafters of the act have considered this problem and that is how you get around it, you fix the cohort because Labourpower is certainly not the only employer that experiences a high level of turnover specially currently in the labour shortage that we're experiencing at the moment.

PN653

These days most employers do have some degree of casualisation in their workplaces and a significant degree of turnover tends to accompany those arrangements. Potential difficulties in bargaining caused by casualisation and employee turnover are a matter for the bargaining representatives.

PN654

The submission of the respondent is that bargaining in these circumstances would be like, I think the submission was, sand through the fingers trying to keep people on the site and we say that that's a problem for the bargaining representatives to contend with and not for the Fair Work Commission to contend with as an element of this application.

PN655

The evidence shows that while there is a portion of the workforce that is highly transient, there is also a regular and systematic presence of Labourpower employees at the Schenker sites including those 243 who are still active as of now on the evidence available and some of whom who were there for much longer periods than others. It can't be reasonable to deny those employees access to bargaining with their employer because of this particular business model.

PN656

The second objection is based on the proposed scope of the agreement. As stated in my opening submission, scope is not fixed by the making of the majority support determination and this question is to be properly determined as part of the inquiry into whether the group is fairly chosen. The Commission is confined in its inquiry to assess only - this only when - pardon me.

PN657

The Commission is confined in its inquiry to assess only whether the group is fairly chosen not whether it's convenient for the employer. It is open for the matter of scope to be revisited during bargaining if the employer prefers another grouping, the matter of scope is not determined by the majority support determination.

PN658

The next objection relates to allegations of misleading claims. In respect of the alleged misleading claims, we deny that any claims have been made that are capable of misleading employees in any material - in any sense material to this application. Whether an Enterprise Agreement is endorsed by a bargaining representative before voting occurs or if it gets put straight out on the floor for a vote without that endorsement does not change the face that employees still vote on the agreement and will no doubt consult with their bargaining representative to guide them in their decision on how to vote.

PN659

There is no evidence adduced by the respondent to suggest that any employees actually were misled who signed the petition and the respondent has unfettered access to its own workforce and could have sought that evidence if it existed. It chose not to. The evidence of Mr Dundon was that the flyer was provided to workers after he explained how bargaining works and after they'd signed a petition.

PN660

Fourthly, the respondent alleges that the short time frame provided to the respondent to respond to the union's request to bargain is indicative of high handed tactics. Somehow the respondent suggests that the employee group we represent should be deprived of the opportunity to bargain with their employer because of this short timeframe. There is no evidence before the Commission that the time frame chosen to make the application had any material impact on the respondent's decision not to bargain or prejudice the respondent in any way. The application was made consistent with the requirements of the act and cannot therefore be construed as unreasonable to such an extent that it should defeat the application.

PN661

Fifthly, the respondent contends that the employees were subjected to Groupthink while signing the petition. The basis for this assertion is that employees lined up at the request of Ms Awan to sign the petition but I note that nothing on this ground was put to any of the witnesses so there is no evidence to support this assertion and actually the evidence of Mr Kadiwala and Ms Awan contradicts this assertion.

PN662

They both stated that employees were provided with a choice and informed that they didn't have to sign the petition. I also note that Groupthink is not mentioned anywhere in the act and the respondent doesn't offer any definition of the phenomenon. I think it's derived from the George Orwell novel 1984 to the best of my understanding but I'm not aware if it's an actual psychological phenomenon or if it's in the DSM or anything like that but nevertheless we would submit that without more to support that, the Commission can afford no weight to that objection.

PN663

Lastly, the respondent raises the size of the majority as a factor telling against making the determination. The act does require a simple democratic majority. If it was intended to be an overwhelming majority then the words of the act would say so. There's no evidence that anyone who did not sign the petition does not want to bargain, rather there is evidence of employee turnover which suggests that those who didn't sign the petition may simply not have worked or been present when the petition was conducted.

PN664

The reality is that little can be inferred about the mindset of the employees who didn't sign the petition in the relevant period. There is therefore no reasonable or lawful basis on which to disenfranchise the majority however slim, who expressed their wish to bargain. That concludes my submissions.

PN665

THE COMMISSIONER: All right. Good. Thank you.

PN666

All right, Mr Maroney?

PN667

MR MARONEY: Thank you, Commissioner. We note that we filed written submissions dated 1 June 2022 and we continue to rely on those submissions for the most part save as to one issue that my friend has discussed with respect to the 72 employees. We concede that the use of the term will be covered by the agreement in the Fair Work Act doesn't import a future looking consideration into whether or not there is a majority for the purpose of the majority support.

PN668

So much is clear from the cases cited by the applicant and in particularly CBI Contractors v CFMEU. As such there are 315 employees of the respondent who have signed the applicant's petition and who should be considered for the purpose of ascertaining whether or not there is a majority support for enterprise bargaining. However, for reasons I'll develop, we say this is not a majority and that's on the basis of the time period the Commission should select over which to ascertain that majority.

PN669

At paragraph 21 of her witness statement, Ms Spencer gave evidence that there are 973 employees of the respondent who are currently within the scope of the Enterprise Agreement that is mentioned in the petitions. The further evidence of Ms Spencer was that there are 6,000 employees of the respondent that operate or that are employed on the national basis.

PN670

The applicant would have the Commission act on the basis rather of an arbitrarily selected time period to limit the voice of employees who have not signed its petition but Ms Spencer's evidence is that the majority of the employees who did not sign the petition remain current. The relevant number of employees being the 973 out of the pool of some 6,000 employees nationally is the relevant pool from which the Commission should determine a majority and ‑ ‑ ‑

PN671

THE COMMISSIONER: I just don't follow that because that's fixing a date of 30 May.

PN672

MR MARONEY: It's fixing a period of time from 30 May back to the beginning point of the activity period of the employers' records. There's not direct evidence of what that period is but there is by inference evidence that there is a period of time over which staff become active or inactive and it's as amongst those 973 active employees of Labourpower at Schenker that the majority needs to be ascertained.

PN673

I'll come to some alternative submissions about fixed period time periods in a moment but our primary submission is that is the relevant pool of employees that needs to be considered.

PN674

THE COMMISSIONER: Well, why 30 May and not 30 June?

PN675

MR MARONEY: 30 May is the day before Ms Spencer gave her evidence. The cases are clear that the Commission is required to act upon the most recent information available in ascertaining whether there is a majority and that is both in respect of the number of employees at the time it decides to fix and also the expression of support in ascertaining whether there's a majority.

PN676

THE COMMISSIONER: What if yesterday we did the calculation and there was only 400?

PN677

MR MARONEY: Well, then that's the pool of employees that the Commission would need to determine from.

PN678

THE COMMISSIONER: That seems to be just a moving feast. It could be any day. We keep moving it.

PN679

MR MARONEY: It could be and I'll come to some submissions in a moment about the principles the Commission would apply in fixing a relevant time period because it's not done entirely arbitrarily or at random, it is done by reference to a number of factors. One of those as my friend has submitted, is the period of time at which employees were asked to express an opinion. That is, however, not determinative. The cases and I'll take you to, in a moment, Lovisa and also to Legineering. Those cases suggest that what needs to also be looked at is the nature of the employer's operations, the way in which work is structured within those operations and choosing from the evidence of each of those things, a time period which is reflective of a usual or a fair scope of or pool of employees from whom to ascertain whether or not there is a majority.

PN680

The evidence in this case is that this is an employer with relatively high turnover. Ms Spencer's witness statement gives evidence of 113 new employees who have commenced employment following the end of the petition period. The applicant has led no evidence as to their support or otherwise for enterprise bargaining and in the same breath though, they say that if we go earlier than the petition period those employees weren't asked.

PN681

We say that the approach of the Commission in both Lovisa and in Legeneering does not centre the fixing of the relevant pool of employees on the petition period necessarily. Legeneering - the determination operates on the basis of the four‑week period before the day of the filing of the application. The Lovisa case is a different four‑week period but what was taken into account in Legeneering in particular, was that there is a four‑week roster cycle that operated on that enterprise.

PN682

The evidence in these proceedings is that there is a daily and weekly roster and pay arrangement which operates in this enterprise. We do not submit of course that a single day of employee list should be what is - is what the Commission should direct itself to but rather what we say is a fair approach needs to be taken to ascertaining who was employed by the respondent and taking into full effect the voice of those employees and not arbitrarily excluding employees from expressing a view one way or another or declining to express a view at all with respect to bargaining on the basis that they have a shorter period of service or maybe what my friend refers to as a short‑term casual employee.

PN683

That's what we say about the time period with respect to the pool of employees. Now, the evidence of Ms Spencer which can be found at paragraph 32 of exhibit 5 is that during the six‑week period ending at the end of the petition period there were 710 employees that in fact performed work within the scope of the enterprise - the proposed Enterprise Agreement. At paragraph 32(c) there is evidence of 774 employees who performed work in the eight weeks prior to the end of the petition period.

PN684

If the Commission is not minded to determine the relevant pool of employees is all employees in the 973 that are available to be deployed and who will in fact be covered by the Enterprise Agreement, it is from one of these longer periods that the Commission may determine to be the case. What we see is the number of employees actually working appears to converge. The number is not steeply increasing at above six or eight weeks.

PN685

That appears to be a stable number of total employees. What we say in those circumstances is the Commission may readily infer that this is a pool of employees which in the scheme of the business being operated is a fair pool of employees from which to ascertain a majority. The 315 employees who have signed the petition are of course not a majority of either of those pools.

PN686

So for clarity, the respondent does not press today that there's a contest with respect to whether or not the 72 employees can be counted towards either the pool of employees or the relevant ascertaining of a majority. We say the pool of employs remains the 973 and not the 543 or 598 eligible employees.

PN687

The UWU has not addressed these longer time periods in any meaningful way in their submissions. They don't say why these periods would not be fair in the circumstances other than to say that there's a portion of the time that employees might not have been asked about the relevant bargaining but that's to say nothing at all, it's not for the union itself to determine what the relevant time period is and that there are employees of a particular enterprise that the union simply hasn't reached is of no moment.

PN688

What needs to be ascertained is whether there is a fairly representative pool of employees being chosen from ‑ ‑ ‑

PN689

THE COMMISSIONER: But these numbers are - these aren't comparing apples with apples here because, as I understand it, the 973 that's put forward as at 30 May, that's just the people that have been inducted. That's not - that doesn't satisfy the notion of having worked a shift in a particular period of time.

PN690

MR MARONEY: Yes, Commissioner.

PN691

THE COMMISSIONER: Well, why would you go off on that tangent?

PN692

MR MARONEY: They are able to be deployed into work at any period or at any time. They will, in fact, be covered by the Enterprise Agreement.

PN693

THE COMMISSIONER: If they go a Schenker site, yes.

PN694

MR MARONEY: Yes. And they would have to have, at some point, worked to be included in that pool so these are employees who are active in the sense that they have been inducted into Schenker. The evidence is that the inductions occur on the Schenker site and that occurs in the context of work being performed.

PN695

THE COMMISSIONER: But how do I know whether in a particular period of time, I don't know what period we're talking about here, that they have worked at least one shift.

PN696

MR MARONEY: There would need to be - and I accept there's no evidence that is currently before the Commission, there would need to be evidence of a start time or a starting point for each of those employees or a commencement date of some kind.

PN697

THE COMMISSIONER: Well, there's 430 people that seem to have emerged into the pool after 7 April, of those 430 how do I know whether they've got - I'd have no way of knowing because there's been no - they haven't been asked whether they want to bargain or not.

PN698

MR MARONEY: Commissioner, the way that I would say the Commission should approach this is there are not 400 employees that have come onto the books after 7 April. The evidence is that between 11 February and 7 April there were 774 employees who in fact did perform work within the scope of the agreement.

PN699

The further evidence of Ms Spencer is that there's 813 employees who commenced after that period in time and then the remaining, on my quick maths, about 20 are unexplained but must have worked at some point before 11 February.

PN700

THE COMMISSIONER: The numbers that come after the end of the petition period what - am I to assume that we just accept them as all not voting in favour of the petition?

PN701

MR MARONEY: Well, what needs to be done is that the applicant needs to show evidence of majority support and if the employees have not expressed support then they are not to be included as evidence of majority support.

PN702

THE COMMISSIONER: They haven't been asked.

PN703

MR MARONEY: That's right and there are many occasions on which - and the evidence of - if I can approach it this way. The evidence of the applicant is not that they spoke to every single Labourpower employee that was on site or in fact employed during the petition period, that's not the evidence and there's no requirement that every employee during the relevant period of time in fact be asked.

PN704

The most usual position is the - that at least a portion of the employees who have not expressed a majority support may not have been asked. That doesn't stand in the way of those employees being included in the relevant pool of employees from whom a majority is to be ascertained.

PN705

THE COMMISSIONER: I'm having lots of difficulty following this logic that a bunch of people that roll up afterwards that don't ever see a petition would suddenly be included in the method for calculating the majority support.

PN706

MR MARONEY: The evidence of Ms Awan and Mr Dundon is that they attended the five sites that they attended on eight or so specific days during a two-and-a-half-week period. It does not defy logic that there are employees who were employed during that period of time with whom they wouldn't have had contact simply because they did not attend the relevant sites on the relevant days. This is a very usual way in which majority support petitions are circulated because otherwise it would require the union to attend a significant additional amount of labour.

PN707

But it doesn't mean, for example, that the employees who are at Hoxton Park on 6 April and not on 7 April or on 23 March where a Hoxton site was visited shouldn't be counted towards the pool of employees from whom the majority is to be ascertained. The applicant doesn't say that that's the case and they have said it is this relevant time period.

PN708

This is of course, one of the difficulties with the function that the Commission is here asked to perform which is the setting of a relevant time period. The - again, our submission is the petition period itself is arbitrary. It is a period of time over which the union has decided to be on particular sites. It doesn't itself mean that all employees were asked to provide their assent to enterprise bargaining negotiations but in our submission, that time period is not relevant to any form of operation that occurs within the business. It doesn't align with the numbers of employees that can be seen on the evidence to in face be employed by the respondent over longer periods of time and that's the submission that we make.

PN709

Moving onto a secondary issue about this time period, is that the evidence is that this petition was circulated in the period just prior to Easter. Each Mr Kadiwala and Mr Goldthorpe were directly asked if there were fewer employees at that time of the year. Although my friend says that they each said maybe, when it was put squarely to them, they agreed with the proposition that there were fewer employees in the lead up to Easter.

PN710

This is another factor which lends weight towards the Commission's determination that the petition period itself is not reflective of a pool of employees that are in fact employed by the respondent and who should be taking into account when ascertaining a relevant period for determining a majority.

PN711

Unless the Commission has any additional questions with respect to the relevant time period I propose to turn next to the issue of whether or not the group is fairly chosen. Even if the Commission does find that there is a majority of employees who are employed at a period of time who will be covered by the agreement support bargaining which of course is not conceded, that alone is not sufficient for the application to succeed.

PN712

Commissioner, you must have of course, regard to all aspects of section 327, one of which is that the proposed agreement must be fairly - have a scope which is fairly chosen. The applicant bears the onus of establishing that the scope of the proposed agreement is fairly chosen but its submissions misapprehend what that entails. The simplest way to explain that is by reference to the decision of the Full Bench in QGC v Australian Workers' Union which is referred to in both parties' submissions but if the Commission would like a copy, I can hand one up.

PN713

The reason why I say this decision of the Full Bench is of utility in determining the matter is that the applicant's submissions invite the Commission to make each of the errors that were corrected on appeal by this Full Bench. The applicant invites the Commission first to consider that the actual work performed by the employees who would be covered by the proposed Enterprise Agreement in making the determination that the scope is operationally distinct.

PN714

The applicant has said repeatedly that these are workers who are involved in picking, packing and related stores types activities and that should be a determining feature in a finding that the work is operationally distinct. At paragraph 44 of the Full Bench's decision, the Full Bench states that the Commissioner at First Instance in that decision:

PN715

Has treated the performance of a different role, task or skill or function as operational distinctiveness and has erroneously concluded that the group of employees was operationally distinct on that basis.

PN716

So the approach that is urged by the applicant asks the Commission to fall into the same error as what is done here. The Full Bench then goes on to explain that the term operational refers to industrial or productive activity in that case the operation and maintenance of particular gas extraction and processing infrastructure, here the provision of labour hire services and determine that - and it's called upon by the Full Bench that that is the type of analysis which needs to be conducted.

PN717

In this case, the evidence of Ms Spencer is that the functioning of a storeman's and packing duties are integrated into the operation of the business and do not sit in any way as a functionally separate unit. In the same respect, my friend's submissions that Schenker itself provides some kind of basis for the operational distinctiveness with respect to my client's workforce is also misfounded.

PN718

The evidence of Ms Spencer again was that employees, and the casual employees sought to be captured by this proposed Enterprise Agreement and this majority support determination, can and do work across multiple employers or host clients that they - there are records kept of the skills and abilities of those staff and they are able to be deployed into or out of the proposed scope of this Enterprise Agreement.

PN719

Ms Spencer's evidence is that the business is not structured in a way that relates primarily by reference to the client but rather sourcing labour more broadly and that Schenker inducted employees are treated no differently to employees from other clients or other - who are deployed to other clients of Labourpower. In that way they are inducted in precisely the same way as the other employees. They are managed in the same way by - as the other employees.

PN720

Whether Schenker has control over the day‑to‑day functioning while on site is indeed consistent with Ms Spencer's evidence that the function of providing labour hire is the same across those sites and that each of the other sites has a similar function in place. Each of the other clients has a similar space - a similar operation. Finally, the evidence does not establish that the - sorry, does not just establish employees are long‑term.

PN721

Ms Spencer's evidence is there is no guarantee of any particular work to casual employees and that guaranteed employment at a particular site is also not available on an indefinite basis. That's the very nature of the operation. The group is not operationally distinct even with respect to the group of Labourpower employees who are in the warehousing industry. Ms Spencer of course gave evidence that close to 40 per cent of Labourpower's clients are - or a large amount of Labourpower's clients are in the warehousing industry and there's nothing on the evidence that sets apart the operation of Schenker from the operation of those other clients in respect of Labourpower's employees.

PN722

The same error can be identified with respect to my friend's submissions about whether or not the group selected is organisationally distinct and I won't elaborate on that point. My friend has, on a couple of occasions - before I come to that point, the evidence adduced from the applicant's witnesses today is that there are three other labour hire entities operating to provide employees or labour services to Schenker.

PN723

Employees of those labour hire entitles attended the mass meetings that were held on site as described by Mr Dundon and Ms Awan. The fact that other labour hire entitles operate alongside and on site also weighs against a finding that the operational or that the Enterprise Agreement has a fairly chosen scope on the basis that it's operationally distinct.

PN724

Labourpower consultants are located at host client sites across the board and not just at Schenker and Schenker is not operationally distinct to other host clients and indeed the business of Labourpower demonstrates its relationships with its host clients are just that commercial relationship and do not delineate the group of employees in any meaningful way for the purpose of the fairly chosen test.

PN725

One additional matter, my friend has operated on the basis that there's a concession that the group of employees are geographically distinct. We do say the group of employees is not geographically distinct. The Enterprise Agreement that is mentioned in the majority support petition on its face applies to five sites and then any number of other sites that may well be determined by a third party to our client's operation and that is clearest if I can take you to exhibit 3 and to annexure AA2 and at the top of that petition you will see that the sites that are named sites plus any other logistics facility operated by Schenker Australia in the State of New South Wales where a particular other Enterprise Agreement applies.

PN726

That of course could be any other site that Schenker operates at when it decides to make any changes to its business. The test that is - or the core question that the cases direct the Commission to attend to when determining whether a group of employees is geographically extinct requires the Commission to look at who will be included and who will be excluded and on the basis of the geographical coverage as defined here, by reference to a third party's business operations, does not give a geographically distinctive scope to the Enterprise Agreement that is proposed and the fact that the scope of the agreement can be dictated by third party business decisions militates against a finding that the scope of the agreement is fairly chosen in that respect.

PN727

Unless the Commission has any questions about the issue of fairly chosen, I'll move to the final matter which is whether or not the making of a majority support determination is reasonable in all the circumstances of this case. To that end, we rely primarily on the written submissions that have been filed but there are two matters that bear particular attention.

PN728

The first is the matter which was subject to evidence in cross‑examination of the applicant's witnesses today which is the status of exhibit - annexure AA1 to exhibit 3 being the flyer. It's been submitted by the applicant that the information was either not relevant or of somehow limited consideration by the relevant employees, however, each Mr Goldthorpe and Mr Kadiwala gave evidence that they understood the UWU's communications state that union endorsement of the Enterprise Agreement was required before it could be put to a vote and consequently approved.

PN729

Each Ms Awan and Mr Dundon said that they took no steps to correct that misinformation either because they hadn't read the relevant document or that they were not aware that the matter was erroneous at the times of the meetings. Whether or not the reason for the failure to correct the misinformation is not necessarily pertinent here, the issue is whether there is misinformation out there and there clearly was.

PN730

Each Mr Goldthorpe and Mr Kadiwala accepted that they were in a better position to know about enterprise bargaining and the relevant rules that applied and each of them was nonetheless misled. The Commission can comfortably consider that the employees who signed the petition would have been misled by this communication. In respect of Mr Dundon's statement in re‑examination that the flyers were provided after the signing of petitions, the Commission would approach that evidence with some caution.

PN731

The first reason for that is of course it was given in re‑examination and there's been no real ability to test that evidence. The second is that when pressed on the question, Mr Dundon's evidence was in any case evasive under cross‑examination and didn't seek to frankly engage with the questions that were being put to him around that document.

PN732

The Commission can't be satisfied by his assurances alone in re‑examination untested for the purpose of being satisfied that the timeline is as he says it was. In any case, Mr Dundon's evidence with respect to that particularly timeline were directed at his functions at the meeting at Hoxton Park. There are five sites and only at Hoxton Park does he say that is the steps - those were the steps he took. If you go instead ‑ ‑ ‑

PN733

THE COMMISSIONER: Mr Maroney, you haven't led any evidence from one of your employees which says, 'I was misled.'

PN734

MR MARONEY: And we say we don't need to.

PN735

THE COMMISSIONER: Don't need to do that.

PN736

MR MARONEY: No, because the Commission has before it evidence of two experienced union delegates who say they were misled and they say that they were in a better position to know whether or not that was misleading. The inference is clearly available to the Commission to find that other employees in the same or on the evidence of Mr Goldthorpe and Mr Kadiwala, employees in a less informed position would have been misled by those communications.

PN737

The applicant hasn't attempted to say that the matters outlined in the flyer were correct. I think they concede that it's not. The evidence of Ms Awan under cross‑examination certainly had a concession to the effect that it could have been worded better. The misleading nature of that document is clear on its face and you do have evidence that people were in fact misled.

PN738

THE COMMISSIONER: How do I have - where's that evidence?

PN739

MR MARONEY: That evidence was of each Mr Goldthorpe and Mr Kadiwala in cross‑examination. Each of them gave evidence that they had read that document and they had considered that the UWU was required to endorse an Enterprise Agreement before it going out for a vote.

PN740

THE COMMISSIONER: Well, I'm not sure that paragraph 6 actually says that, that's been inferred that that's what it says.

PN741

MR MARONEY: That's the evidence that each Mr Goldthorpe and Mr Kadiwala gave about their understanding.

PN742

THE COMMISSIONER: But then one has to contemplate this prospect that what is the nature of the alleged misleading statement, what impact might it have on the potential for there to have been some change to the numbers that sign the petition because that's the relevant, isn't it? Now, if I'm an employee and I think, 'Hang on a minute, I don't like this idea that the union's going to endorse this before we get a chance', aren't I more inclined to not sign the petition?

PN743

MR MARONEY: That may well be so, Commissioner. We say that the Commission would be entitled to take on judicial or quasi-judicial notice. The fact that an employee signing a union sponsored petition would expect the advice that the union be giving them to be true. Mr Kadiwala and Mr Goldthorpe also accepted that proposition in cross‑examination and there - that suggests that a level of reliance is placed on the union's communication in making decisions as to whether or not to sign a union petition.

PN744

The next matter, as a matter of discretion that the Commission should take into account in determining the reasonableness of the making the majority support determination is the issue of Groupthink. My friend addressed that at some length in her closing submissions. What we say is simply the evidence of Ms Awan in her witness statement was clear that she asked people to line up.

PN745

That was done in the context of a mass meeting. People then did in fact line up. The Commission can draw conclusions on the basis of that evidence alone and that there may be a level of influence - or a level of influence by way of the number of people that were involved. I don't seek to develop that submission any further. We submit of course that there's not a sufficient evidence - that there are a majority of employees who support enterprise bargaining but even if the Commission is against us on that primary submission, as a matter of the reasonableness of making a majority support determination the Commission is entitled to take into account the size of that majority.

PN746

My friend says the words of the act don't expressly allow for that and what the act says is a majority and that's by way of simple majority. The cases of course say that the size of the majority is relevant and they are cited in our written submissions. What the cases also suggest is that a smaller majority may be telling of a less reasonable circumstance in which the Commission might act.

PN747

That's particularly significant in a case like this where we have evidence of not only a large number of people coming into the business and the scope of the proposed agreement following the petition or following the evidence which gives rise to the asserted majority but also a large number of employees who have left the relevant scope of the Enterprise Agreement.

PN748

Although not relevant for the purpose of ascertaining a majority, the 72 employees come back at this point and it is relevant in the circumstances of determining the reasonableness of the application that that majority that was once present is no longer maintained by way of employees leaving scope and new employees coming in. The majority is not current. It is a historical point in time concept if it ever existed at all. In those circumstances, it would not be reasonable to make a majority support determination in this matter.

PN749

Unless I can assist the Commission further, those are the submissions for the respondent.

PN750

THE COMMISSIONER: Thank you.

PN751

Ms Thwaites, do you want to say anything in closing?

PN752

MS THWAITES: Just a few comments and then I'll wrap it up. All right. Just to respond to the comments of my friend on the criteria for determining the relevant period, I have already addressed in my opening and in our written submissions why the employees who are on the books shouldn't be regarded and how there is no relevant period that actually encompasses them.

PN753

I've referred to Lovisa a number of times because it is a useful authority on this matter. In Lovisa, Deputy President Colman had regard to the composition of the workforce when determining the period and it was through that regard that the composition of the workforce that he determined that those on the books shouldn't be included.

PN754

Why they weren't included was because of an examination from the case NTEU v Swinburne University of Technology where there was an examination of what it means to be employed for the purpose of section 237 and it does not include employees who are usually employed having worked some shift at some point in the past does not qualify them to be relevant employed for the purpose of this application.

PN755

Obviously then there is a requirement for the Commission to confine the period to some period of time and there isn't much that's been put forward by my friend here for the Commission's consideration that isn't difficult to set down, isn't speculative and doesn't exclude the voices of those who actually did express a desire to bargain.

PN756

We've said that the period, the petition period is there because that is the period when the employees were given an opportunity to express their wish to bargain and it's also fair because it's a three‑week - it's almost a three‑week period. If you were to extend that and we can see it in the numbers of employees that are counted in the longer periods of time in the respondent's submissions, see the numbers go up but that is because there is an element of the workforce that is highly transitory.

PN757

We've got evidence here that says that there are workers who have been here for years who are working consistently, who are working fulltime hours, then there are peaks and periods where employees come in and they work for a couple of days. Those employees are capable of distorting the total number of employees if you expand the period. They come to represent a greater proportion of the workforce than they really should. That's why the three‑week period is appropriate in the circumstances.

PN758

Just a few more comments on the question of distinctiveness on the question of fairly chosen. Now, the respondent submits that according to the decision in QGC at paragraph 44 that the relevant inquiry when looking at operational distinctiveness is about the broader operations of the actual business, in this case the provision of labour hire services. What we say to that is that it doesn't make sense that the inquiry here could exclude an analysis of the actual work performed by the actual employees.

PN759

None of the employees in the group provide labour hire services in the sense that a number of white collar workers of Labourpower do. They meet clients, they arrange for workers to be sent there, they provide inductions, they provide that recruitment service but none of these employees, the majority of their employees are not performing recruitment services.

PN760

Were it otherwise, there would be no operation or distinction between workers performing cleaning services under the Cleaning Services Award and those performing logistic services under the Road Transport and Distribution Award. It doesn't make sense. There must be some inquiry into the actual operational function of this group and it is to perform those store worker duties at the Schenker sites.

PN761

THE COMMISSIONER: Sorry, what's put against you there is they perform those same duties at other sites as well.

PN762

MS THWAITES: Yes, but there is a degree of operational distinctiveness for Schenker because Schenker is an important client with specific needs and the company, being Labourpower, needs to respond to those specific needs, it needs to ensure that those - their employees undergo specific induction processes and are familiar with those needs.

PN763

THE COMMISSIONER: It seems though, that what this gets down to is the concept that, well, if as a labour hire employee you come into a particular site, why is that distinct because the work you're performing on that site, the picking, the packing, whatever it might be, is the same work you'd be performing somewhere else. So from the employer's perspective, that is, Labourpower's perspective, that's not distinct.

PN764

MS THWAITES: Well, we say that it is distinct because the specific work and the manner in which they must perform the work, the policies in accordance with which they must perform the work are specific to Schenker. That's why they go through an induction. They wouldn't need to go through an induction at the new site if it was the same work they performed everywhere.

PN765

They also have to be subjected to disciplinary procedures, performance management, KPIs, that come and are set by Schenker specifically and every time they go to a different site, that's the same case but this might be more of a problem if we were talking about a workforce that is consistently moving between the sites but we're not. Many of these workers are working fulltime hours for the long‑term. They're there every single day. Now, there is a more transient element to that workforce, yes, but that's not everybody there.

PN766

THE COMMISSIONER: Have you found another Enterprise Agreement that's been made and approved that deals with this sort of circumstance, a labour hire company and specifically its labour hire - and those employees at that labour hire company when engaged at a specific site or for a specific client?

PN767

MS THWAITES: Not that I'm aware of but (indistinct) of a precedent there is just because nobody's tried, right, Commissioner. So in this case we're able to - these workers have a desire to bargain, they have a sense of themselves as a separate group. They're operationally distinct in the sense that they all work between those sites mostly but the evidence of the witnesses is that they see the same people there all the time and even actually that Schenker does hire from that pool from time to time.

PN768

THE COMMISSIONER: But maybe there's a fundamental problem that in terms of the labour hire industry, the idea of having a Enterprise Agreement that operates only in respect of certain sites just won't be fairly chosen because the employer, the labour hire company maintains the capacity to move in and out of those sites and that's fairly clear, that's the nature of the labour hire business.

PN769

MS THWAITES: I'll refer to a comment that you made earlier about whether other workers who are covered by other enterprises move between sites and the truth is that they do. With DHL, DHL frequently move workers between sites where they are covered by different Enterprise Agreements as it suits the business, so does Toll.

PN770

A number of different third party logistics businesses that are organised around a particular contract and have an Enterprise Agreement based on that contract will move workers between sites. Obviously I haven't got evidence here prepared to give to you, it's something that the union could prepare and provide to the Commission at your request.

PN771

THE COMMISSIONER: But as far as you know, there isn't another Enterprise Agreement that is site specific for a labour hire company.

PN772

MS THWAITES: As far as I know.

PN773

THE COMMISSIONER: So I know there are a number of labour hire companies who have their own Enterprise Agreement that cover their workforce completely and then there are sometimes, there are variations when they go onto particular sites but it's a sort of a fall‑back position in terms of the underlying Enterprise Agreement for the labour hire work.

PN774

MS THWAITES: Yes. Well, I wonder what the risk or what the problem is, we know that Labourpower already contend with multiple industrial instruments in the provision - of providing labour hire services, they must apply different award terms and different Enterprise Agreement provisions all the time. In fact, Labourpower would be more practiced at doing that than many other - or Ms Spencer would be more practiced at doing that than many other similar HR employees, I would contend.

PN775

The question - it's easy to get caught in the weeds here about the distinctiveness questions and lose sight of the broader inquiry about whether the group is fairly chosen and whether it's discriminatory. Why is it discriminatory to cover the Schenker workers, the ones who are there consistently, on what basis is it discriminatory.

PN776

THE COMMISSIONER: That's not just going to cover the ones that are there consistently, it's going to cover even those that come in for one shift in their life.

PN777

MS THWAITES: Yes. Yes. And the prospect of an Enterprise Agreement at a site and the prospect of those employees having some capacity to bargain with their employer, improve their wages and conditions might see that there is more stability and there is less turnover and we might see less of the situation that Ms Spencer talked about where employees do one shift, have an induction and then leave.

PN778

The other element of that is that the movement between the sites may be something that can be looked up from an employee's perspective and that these issues are not insurmountable. There is a large number of Labourpower workers consistently at these sites all of the time. Yes, there's a level of transience in that but we don't have evidence about what degree that is and we do have evidence that there are workers there for a long period of time and that Schenker treats those workers as some element of a hiring pool because they're employed as the Labourpower pool.

PN779

On the question of geographical distinctiveness, there were some last minute submissions made about whether or not there was - the group could be regarded as distinctive. There is - I note there's no comment that (indistinct) submissions made in the written submissions of my friend here but take what he has said on board here.

PN780

It's five sites, there is a provision that it would be other Schenker sites if and when another Schenker site was established which it hasn't been and isn't currently. That means the scope of that means five sites. Right now there are only five sites. It could also mean another site in the future but there is no other sites right now so it's contained to those five sites notwithstanding the extension of coverage to other Schenker sites if they existed. They don't. It's quite easy to see where the lines, where the parameters are of that geographical patch.

PN781

THE COMMISSIONER: Well, in terms of the group that's being proposed, the group that's the subject here, it's only applying to the five sites now but what you're saying is that the notion is that the Enterprise Agreement scope might be able to encompass new sites in the future but one would think that might more be an issue for what the parties, if they get to the point where we're dealing with in the enterprise bargaining and if there was a scope issue that was the subject of bargaining but the concept of another site being excluded, I don't know.

PN782

MS THWAITES: Well, to return to the early thread on this point, the scope isn't determined by the making of a majority support determination, it's a question raised.

PN783

THE COMMISSIONER: No, that's right. Yes.

PN784

MS THWAITES: So it can be - that can be negotiated as part of bargaining and involving ‑ ‑ ‑

PN785

THE COMMISSIONER: But here in terms of the group that's chosen there's no suggestion that somehow or another there's - the people that are - for the purposes of a majority support are coming from anything other than the five sites that currently exist.

PN786

MS THWAITES: That's right.

PN787

THE COMMISSIONER: Yes.

PN788

MS THWAITES: That's right. So accepting this level of transience in the workforce, there's already a situation where the labour hire employees might move, the ones that move around, move from site to site and are covered by different industrial instruments as and when they do so. That's already common in the industry. That's what's happening in practice right now. The question is whether there is some element of unfairness on the basis of whether the group is or is not distinct that attends this grouping in particular. We say 'No.' We say the group is fairly chosen.

PN789

I'll just make a few more comments on the matters raised in respect of the reasonableness criteria by my friend. Just to speak briefly to the question of the flyer that was handed out during the petition period which is marked AA1 in the witness evidence of Ms Aesha Awan, the section of this flyer which was held to be misleading or potentially misleading is a six on page 2:

PN790

Once we have endorsed the outcome a final document is put out for seven days for you to review and check that it's faithful to what we negotiated.

PN791

The respondent submits that the Commission can comfortably consider that employees were misled in relation to this statement. We would strongly disagree with that submission:

PN792

Once we have endorsed the outcome a final document is put out for seven days for you to review and check that it is faithful to what we negotiated.

PN793

We contend that that statement doesn't mean that the union is somehow required to have some sort of legal endorsement process of an offer before it can be put to vote by the workers. I don't think that that's what's meant in this flyer. The evidence established that the flyer wasn't really regarded very heavily by anyone.

PN794

THE COMMISSIONER: It's a section 180 access period.

PN795

MS THWAITES: Yes. That's what that refers to. And the consequences of thinking that the union needed to endorse the offer before it went on the floor, the respondent has failed to establish how that would change anyone's opinion about whether or not they still wanted to bargain. The critical element is that there's a seven‑day access period and that the employees themselves get to vote, that it's not a union official that votes.

PN796

THE COMMISSIONER: I think it's acts in contemplating circumstances where the 'We' means both the UWU and the company.

PN797

MS THWAITES: Yes. Yes. In the respondent's written submissions of course, there was the 'We' was supplanted in square brackets for UWU but that's not what's written on the actual document.

PN798

THE COMMISSIONER: But it's easy to read it as 'We' meaning the UWU.

PN799

MS THWAITES: Yes.

PN800

THE COMMISSIONER: It's poorly configured but anyway.

PN801

MS THWAITES: I agree it's poorly configured. We don't submit that it's overly incorrect. We say it's incomplete actually. What it is is incomplete information. It doesn't contemplate another scenario where an employer might put an agreement out on the site without the endorsement or recommendation or in principle agreement of the bargaining representatives and I say that the respondent has failed to establish how this might have or actually did mislead anyone in a way that's material to their decision to want to sign a petition and participate in bargaining and there's just not enough information, not enough evidence before the Commission to conclude that.

PN802

Now, on the last issue of the size of the majority and the issue of turnover, we agree that the turnover is an issue in these applications and it's always going to be. Whenever there is a highly casualised workforce the issue of fixing a period in time is going to need to be addressed and there's going to be significant complications that attend that.

PN803

The very element of turnover itself though shouldn't be used to hold back the application or defeat the application under the umbrella of reasonableness because employee turnover is such a frequent - such a common feature of every workplace, particularly at the moment. The respondent's submission would have the Commission determine that there can never be an Enterprise Agreement for a labour hire provider or anything like the basis that we've said because of the turnover making that impossible, right.

PN804

We contend that that's not supported by the words of the act and that can't be reasonable having regard to the objects of the act and the overall framework - the bargaining framework that's contained within it.

PN805

THE COMMISSIONER: But there has to be a prospect here that if you're going to provide a snapshot in time to make the assessment that it is a proper and reasonably accurate reflection.

PN806

MS THWAITES: Yes. Yes, absolutely and that's why ‑ ‑ ‑

PN807

THE COMMISSIONER: So this gets back to the notion of there needs to be some evidence to suggest that if you had a bigger sample period, a snapshot in time where there was a bigger sample cohort, you'd get a different outcome and I don't have any evidence about that.

PN808

MS THWAITES: No.

PN809

THE COMMISSIONER: I've just got evidence that there's at least bigger periods, bigger numbers at different times and that at a particular time here that you chose looks like it's a bit of a dip but I don't know, I haven't seen the figures from before that. You know, there's no sort of long evidence of some sort of statistical sort of correlation of these things, it's just sort of - well, sometimes at Christmas they drop off and other times it goes - so it does seem to fluctuate enormously but ‑ ‑ ‑

PN810

MS THWAITES: Yes. That's correct. Yes. Well, part of the reason it fluctuates is because of things like product launches which can't be prepared for or anticipated by the respondent and they just happen and that's why from the union's perspective it's really - it's quite difficult, not impossible, to try to select a period when you can be sure that there will be a smaller number of workers.

PN811

THE COMMISSIONER: But that might not help you.

PN812

MS THWAITES: In what respect?

PN813

THE COMMISSIONER: Well, you don't know whether you might get a better outcome with a bigger group, particularly if there's some Groupthink going on.

PN814

MS THWAITES: Possibly but as my friend stated ‑ ‑ ‑

PN815

THE COMMISSIONER: You get a bigger line up. If everyone lines up, there's more people to line up and ‑ ‑ ‑

PN816

MS THWAITES: Yes. Well, as my friend stated in that three‑week period the organisers were there for a particular period of time and they were able to speak to who they're able to speak to. We don't have the benefit of having some certainty of the employee numbers at any point and that is why we had made the submission that a ballot ordered by the Commission might be the most appropriate way to further the application.

PN817

THE COMMISSIONER: Well, that's the suggestion you made this morning to the company or something. It hasn't really been formulated before now.

PN818

MS THWAITES: It was, yes. It was formulated at the start of my close, I believe. We have spoken to the company about it. Their views and they can speak for themselves, I'm sure, this morning was that any ballot like that would need to be conducted with the total group of employees on the book being 973, I think it was.

PN819

THE COMMISSIONER: Well, what if - I mean, I'm going to reserve decision in the matter, what if I gave you a short period of time to just see whether some further discussions with the company about that might lead to an alternative outcome and know I'm talking about just a short period of time, a week or something and then you can just advise - jointly you can advise the Commission whether there's been now an agreement - I mean, it's not - as I started out this morning say, 'I've been in the circumstances where suddenly the applications at a very late stage changed', particularly these applications.

PN820

So it might be that a short period of no more than a week would be provided and you can pursue that discussion. If you got a solution along those lines, it'd save me having to do the decision, I suppose, but you know, that's really something that the parties might want to consider.

PN821

MS THWAITES: The difficulty with that, Commissioner, is that based on our conversations this morning, it would appear that we're a fairly long way from each other about what would be a reasonable period of time and who should be the group of employees included in it.

PN822

THE COMMISSIONER: And how you configure all of that.

PN823

MS THWAITES: So to some extent those matters would need to be determined and agreed probably with the assistance of the Commission before a ballot would actually be viable. I'll open the floor to my friend here to comment (indistinct) instructions.

PN824

THE COMMISSIONER: All I was simply doing was giving you a short period of time to just try and pursue that and I think that the fall position is that if I basically don't get a communication from the parties within a week then it's a matter to be determined.

PN825

MS THWAITES: Yes, I just - based on the conversation this morning, it didn't - I didn't have the impression that those conversations would be fruitful. So maybe ‑ ‑ ‑

PN826

MR MARONEY: I'm happy for my friend to send to us a proposal of how she says such a ballot would operate and I can take instructions from my client as to whether it's a viable way forward or not.

PN827

THE COMMISSIONER: Well, I think that's sensible, isn't it, just to see - I mean, I may as well exhaust it, that's a good idea.

PN828

MR MARONEY: Yes, Commissioner.

PN829

THE COMMISSIONER: Yes. So what if you don't - you put together, you know, who is it, Elections Australia or whoever you ‑ ‑ ‑

PN830

MS THWAITES: SIVs or something.

PN831

THE COMMISSIONER: Whatever it is and how you would configure it, just put that proposition across to the company, given them a chance to consider it, it may work, it may not but I think really it's a case where seven days from today ought to be ample time and if it hasn't emerged as an alternative solution then you'll just anticipate that you'll get a decision from me on this application and you'll have to live with that, whatever that might be.

PN832

MS THWAITES: All right.

PN833

THE COMMISSIONER: So we're definitely agreed on that, that approach?

PN834

MR MARONEY: Yes, Commissioner.

PN835

THE COMMISSIONER: Yes, yes.

PN836

MS THWAITES: Yes. Yes, Commissioner

PN837

THE COMMISSIONER: You're content with that?

PN838

MS THWAITES: It's ‑ ‑ ‑

PN839

THE COMMISSIONER: Sorry, I probably cut you off short, you were just finalising your submissions I think.

PN840

MS THWAITES: It's finalised.

PN841

THE COMMISSIONER: You don't have any further remarks at all?

PN842

MS THWAITES: Nothing further. Thank you, Commissioner.

PN843

THE COMMISSIONER: All right. Well, thank you all for your submissions and the Commission reserves decision in the matter and we'll expect a communication within seven days about this potential for an alternative. On that basis, the proceedings are now adjourned.

ADJOURNED INDEFINITELY [3.37 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

FLOYD JOHN GOLDTHORPE, AFFIRMED.................................................... PN94

EXAMINATION-IN-CHIEF BY MS THWAITES.............................................. PN94

MFI #1 RESPONDENT'S OUTLINE OF OBJECTIONS DOCUMENT....... PN109

EXHIBIT #1 WITNESS STATEMENT OF FLOYD GOLDTHORPE, UNSIGNED, DATED 13/05/2022............................................................................................................... PN112

CROSS-EXAMINATION BY MR MARONEY................................................. PN114

RE-EXAMINATION BY MS THWAITES........................................................ PN158

THE WITNESS WITHDREW............................................................................. PN170

MOHMADSALIM SIDIKBHA KADIWALA, SWORN................................... PN176

EXAMINATION-IN-CHIEF BY MS THWAITES............................................ PN176

EXHIBIT #2 WITNESS STATEMENT OF MOHMADSALIM KADIWALA DATED 13/05/2022................................................................................................................................. PN184

CROSS-EXAMINATION BY MR MARONEY................................................. PN186

THE WITNESS WITHDREW............................................................................. PN235

AESHA HUSSEIN AWAN, SWORN.................................................................. PN240

EXAMINATION-IN-CHIEF BY MS THWAITES............................................ PN240

EXHIBIT #3 WITNESS STATEMENT OF AESHA AWAN, UNSIGNED, DATED 13/05/2022................................................................................................................................. PN248

CROSS-EXAMINATION BY MR MARONEY................................................. PN251

THE WITNESS WITHDREW............................................................................. PN343

CHRISTOPHER STEVEN DUNDON, SWORN............................................... PN347

EXAMINATION-IN-CHIEF BY MS THWAITES............................................ PN347

EXHIBIT #4 WITNESS STATEMENT OF CHRISTOPHER DUNDON, UNSIGNED, DATED 13/05/2022............................................................................................................... PN360

CROSS-EXAMINATION BY MR MARONEY................................................. PN363

RE-EXAMINATION BY MS THWAITES........................................................ PN420

THE WITNESS WITHDREW............................................................................. PN425

KITTY SPENCER, AFFIRMED......................................................................... PN435

EXAMINATION-IN-CHIEF BY MR MARONEY............................................ PN435

EXHIBIT #5 WITNESS STATEMENT OF KITTY SPENCER DATED AND SIGNED 01/06/2022............................................................................................................... PN442

EXHIBIT #6 CONFIDENTIAL STATEMENT OF KITTY SPENCER SIGNED AND DATED 01/06/2022............................................................................................................... PN453

THE WITNESS WITHDREW............................................................................. PN482

KITTY SPENCER, RECALLED......................................................................... PN485

CROSS-EXAMINATION BY MS THWAITES................................................. PN485

RE-EXAMINATION BY MR MARONEY........................................................ PN537

THE WITNESS WITHDREW............................................................................. PN556