PN1

THE DEPUTY PRESIDENT: Thank you, I will just confirm I have Mr Wainwright?

PN2

MR WAINWRIGHT: Yes, good morning, Deputy President.

PN3

THE DEPUTY PRESIDENT: Thank you. And Ms Stojanova?

PN4

MS STOJANOVA: Yes, Deputy President.

PN5

THE DEPUTY PRESIDENT: Thank you. And, to the extent it's necessary, permission is still granted.

PN6

Have the parties had any discussion about the programming for today's session? Yes, Mr Wainwright?

PN7

MR WAINWRIGHT: Deputy President, we haven't had any specific discussions about that. We have had discussions about whether or not the matter could be settled and the respondent decided not to make an offer in relation to that, and we had discussions about agreed facts and we were unable to agree on facts.

PN8

I can inform you that, in terms of the discussion that we had with yourself last time, we have made a decision in relation to our witnesses that we will seek to call today Ross Kenna, Sue McInerney and Angela McCarthy. We will not seek to call the other witnesses.

PN9

THE DEPUTY PRESIDENT: All right. Well, in terms of the other witnesses, what's the position? Do you want to rely on any aspect of those statements?

PN10

MR WAINWRIGHT: Deputy President, in terms of the other witnesses, in particular in relation to some attachments to witness statements, we will seek to rely on that evidence. We believe that we can rely on that evidence through the witnesses that we will call today, so, at the appropriate point, I will be taking witnesses to those attachments. We are talking specifically about the structure of the potato packing area and we are talking about the risk assessment that was prepared, and we believe that the witnesses that we are calling today can, through their evidence, admit those attachments.

PN11

THE DEPUTY PRESIDENT: Okay, well, I will rely on you to just draw those attachments as relevant to my attention.

PN12

Can I proceed on the basis that, with the question having been discussed on the previous occasion, that we are not going to be traversing any issues of jurisdiction, Ms Stojanova?

PN13

MS STOJANOVA: To the extent that this hearing is limited to the dispute about the disputed clause 16, the respondent will be comfortable with that. To the extent that the AMWU seeks to traverse other issues outside of the disputed clause 16, then the respondent objects to that.

PN14

THE DEPUTY PRESIDENT: All right. I am more interested just in terms of the order of witnesses, so if there's no issues of jurisdiction, I would be asking the applicant, the AMWU, to put their evidentiary material on first and then McCain's after that. That was probably what I'm getting at, but I understand that there may be aspects of the evidentiary case that you will take objection to or that you will make submissions about. Is there any objection to proceeding on the basis that I will hear from the AMWU witnesses this morning?

PN15

MS STOJANOVA: Deputy President, I'm not sure if you're asking about the interlocutory dispute that was, as I understand, still initially listed for today to be dealt with prior to the substantive hearing, the interlocutory dispute that the respondent raised about the evidentiary issues in the AMWU's witness statements.

PN16

THE DEPUTY PRESIDENT: No, I don't want to deal with the interlocutory dispute. I had made that clear, I thought. The parties can - well, it seems to me that some of those issues are resolved anyway. Part of the interlocutory dispute that you had made, or flagged, was that many of these witnesses weren't relevant. Mr Wainwright has just indicated that there's only going to be three witnesses called, so I would have thought that deals with an aspect of your interlocutory dispute.

PN17

If you want to still press that some of these remaining witnesses are going to give evidence that's not relevant, well, that can be dealt with in final submissions. I am not going to knock anyone out at this point.

PN18

MS STOJANOVA: Okay, Deputy President, I'll save that for closing.

PN19

THE DEPUTY PRESIDENT: Yes. So, I am proceeding on the basis that the question is: 'Is the respondent required to allocate 11 staff members per shift to the potato packing area', which is what we discussed last time, and, it being the application of the AMWU, that they will present their evidentiary case first. So, that's just what I want to get confirmation from, Ms Stojanova. Is there any objection to me adopting that order of proceeding?

PN20

MS STOJANOVA: No, no objection to the order of the proceeding.

PN21

THE DEPUTY PRESIDENT: Thank you. Mr Wainwright, I know that you are only partly in control of this, but it seems to me that, given what you have flagged, there are good prospects of getting through the union evidence today before we have to adjourn at 1 o'clock for your other commitment. Do you have any thoughts on that?

PN22

MR WAINWRIGHT: Deputy President, we are certainly hopeful that we can get through our three witnesses in good time before 1 o'clock.

PN23

THE DEPUTY PRESIDENT: All right, well, that's what I would be aiming for, and if we can even make a start on some of the respondent's evidence, all the better, but I don't want to have a situation where we have a witness that hasn't completed their evidence overnight, if at all possible.

PN24

All right, well let's get underway then. I don't, at this point, require opening statements, so, Mr Wainwright, who do you intend to call first?

PN25

MR WAINWRIGHT: Deputy President, if I could, before I call our witnesses, I just wanted to seek some clarity from you on a few points, and I think you've touched upon them today. I'm just mindful that the question hasn't been published, so I just wanted to make sure that, at our end, we completely understood the question, and what we have is: 'Is the respondent required to allocate 11 staff members per shift in the potato packing area?'

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MR WAINWRIGHT: That's what we have as the question.

PN28

THE DEPUTY PRESIDENT: Yes, I sort of said 'to the potato packing area' or 'in the potato packing area', it doesn't really matter. Okay.

PN29

MR WAINWRIGHT: The other thing that we wanted to clarify before we call witnesses is that the respondent has provided, outside of the directions issued, two late witness statements. Those are the second witness statement of Mr Brian McCain and the witness statement of Michelle Nebozuk. We just wanted an indication from the Deputy President as to whether or not you felt that it was proper to admit those witness statements because it might have some impact on the examination of our witnesses.

PN30

THE DEPUTY PRESIDENT: Well, given that they were submitted before the 30th and we have had two weeks that have passed, I'm inclined to admit them, and I would be satisfied, subject to any comments you want to make, that there has been, in the ensuing fortnight, adequate time for you to engage with the content of those statements - I note they are not particularly long statements - and that if matters do arise out of them, you have already turned your mind to it and perhaps discussed them, to the extent they are relevant, with particular witnesses.

PN31

MR WAINWRIGHT: Yes, Deputy President, and, as I understand it, the witnesses in Ballarat have access to the court book and access to the two additional statements that are outside of the court book.

PN32

The only other preliminary matter that I wanted to draw your attention to was attachment BM4.

PN33

THE DEPUTY PRESIDENT: Yes?

PN34

MR WAINWRIGHT: We would intend to object to that attachment to Mr McCain's first witness statement being admitted on the basis that he has no relationship to this document. It's not his document to admit and he can't give any cogent evidence in relation to it.

PN35

THE DEPUTY PRESIDENT: Presumably he received it?

PN36

MR WAINWRIGHT: Well, all that we can presume is it's attached to his witness statement, but, as you can see in BM4, it's signed on behalf of the company by Mr Karsten Munstege, and so we don't know, on the face of it, what relationship Mr McCain has with the document at all.

PN37

THE DEPUTY PRESIDENT: Well, it's signed by - the copy at 243 of the court book is signed by Ms McCarthy, and then Karsten Munstege - are we looking at the same document?

PN38

MR WAINWRIGHT: Yes, Deputy President.

PN39

THE DEPUTY PRESIDENT: All right. So, what's the point about the signatures?

PN40

MR WAINWRIGHT: The point about the signatures is that this is being admitted through Mr McCain and, on the face of the document, Mr McCain has no relationship to the document. It's not his evidence. I ask this at this point, Deputy President, because it does impact on our examination of the witnesses.

PN41

THE DEPUTY PRESIDENT: All right. Ms Stojanova, can you assist here?

PN42

MS STOJANOVA: Deputy President, Brian McCain was, as I understand it, the lead negotiator for McCain during the negotiations for the 2019 enterprise agreement. I understand that he attended the most negotiating sessions of any individual that attended any of the negotiating sessions for the 2019 enterprise agreement. He was the Ballarat potato production manager at the time; he was the lead, as I understand it, at McCain for the negotiations for the 2019 enterprise agreement.

PN43

That log of claims document, the document BM4, which is titled 'AMWU Log of Claims', is the in principle agreement which was signed between the AMWU and McCain, as is stated in all of the witness statements for this Commission matter. Brian McCain is entitled to submit, as exhibits for his evidence, documents that he has seen and received and that he can give evidence about. Brian McCain, as the lead negotiator, saw, at the time, contemporaneously, the in principle agreement between the AMWU and McCain. He was the key decision-maker at McCain to allow that in principle agreement to go through.

PN44

The Fair Work Commission can inform itself as it sees fit. I would note that the respondent has repeatedly called for the Commission to resolve the interlocutory dispute about the wide range of evidentiary problems that McCain has with the union witnesses, the union witness statements, the union exhibits that have been put through, and the Commission has been prepared to have all of that evidence go through, and so we would suggest it is, at the very least, consistent with that treatment for Brian McCain's fourth exhibit to be put through.

PN45

The other point that I would make is that Mr Wainwright has begun today by saying that he seeks to lead through witnesses today an exhibit in relation to the structure of the potato packing area and an exhibit in relation to a risk assessment that was done, which were exhibits that were originally led through other witnesses that Mr Wainwright is not calling. I don't understand how Mr Wainwright seeks to lead those exhibits that were originally put through other witnesses and yet, at the same time, asks that Brian McCain's fourth exhibit is not permitted to be entered in circumstances where that is a document that Brian McCain had probably the most knowledge of of any person involved in the dispute, and it's also a document that was public to the AMWU and McCain as an in principle agreement.

PN46

THE DEPUTY PRESIDENT: All right. I was just going to ask, could you just take me to the part of witness statement, because it's not jumping out at me, where he refers to the log of claims in his witness statement?

PN47

MS STOJANOVA: Yes, I will get the paragraph for you.

PN48

MR WAINWRIGHT: Excuse me, I believe it's the final paragraph, Deputy President.

PN49

THE DEPUTY PRESIDENT: All right. I'm used to getting witness statements where they say, 'Attached to my statement is' such and such, so it jumps out. All right, see, it doesn't even really describe the exhibit, it just says 'an exhibit signed by Angela McCarthy', it doesn't say it's the log - anyway.

PN50

Mr Wainwright - I mean, look, both of you, I'm sort of getting a bit frustrated by the way in which both parties seem to want to fight like cats and dogs on every aspect of this dispute. I have given you two weeks to work out agreed facts; you can't do that. You told me you wanted two days to negotiate over proposals and then you pulled the rug out of that. And you're still asking for confirmation about matters that should have been dealt with, I would have thought, as professionals, between the two weeks that were going on.

PN51

What really turns on this, Mr Wainwright? It's a log of claims. Was it exchanged or not exchanged?

PN52

MR WAINWRIGHT: I just wanted to make - well, first of all, Deputy President, we accept the majority of your criticism, but not the criticism about settling the claim.

PN53

THE DEPUTY PRESIDENT: Well, I'm not asking you to accept it or not accept it - I'm just mouthing off at the moment - but what I want you to do - because I'm not going to get in the game. I mean, it seems as though, as industrial parties, McCains and the AMWU want to fight on every turn. I don't intend to do that. I'm trying to conduct a hearing today.

PN54

MR WAINWRIGHT: Yes.

PN55

THE DEPUTY PRESIDENT: So, if you are raising an objection, what is the substance of the objection? It's a log of claims, presumably it was exchanged, it says what it says. Why are you so offended by the fact that it might be presented through Mr McCain?

PN56

MR WAINWRIGHT: I'm raising the issue, first of all, that it's not Mr McCain's evidence, and I felt that it was proper to raise the issue now, rather than when Mr McCain enters the witness box, because I would want to ask our witnesses questions about this document, and so I think it's orderly that we hear your view about whether or not you are minded to admit this document at this stage, and, Deputy President, if you make the decision to admit the document, we fully accept that decision and we will conduct our examination in accordance with that.

PN57

THE DEPUTY PRESIDENT: Well, are you going to ask questions about the log anyway?

PN58

MR WAINWRIGHT: Well, I will if it's evidence, yes, absolutely.

PN59

THE DEPUTY PRESIDENT: All right. It seems to me that various witnesses are going to be talking about what was the subject of negotiations. Is that a fair observation?

PN60

MR WAINWRIGHT: Absolutely.

PN61

THE DEPUTY PRESIDENT: All right. So, who this comes in through - I mean the proposition from this is going to be one of the claims was X, isn't it?

PN62

MR WAINWRIGHT: That certainly will be our approach to the evidence, yes. I think that the respondent's approach to this document is a bit more broad-ranging, but that's a matter for them.

PN63

THE DEPUTY PRESIDENT: All right. Well, it doesn't seem to me to be the most controversial piece of evidence that's going to come, whichever way it enters into the record of the proceedings.

PN64

MR WAINWRIGHT: Yes. Thank you, Deputy President.

PN65

THE DEPUTY PRESIDENT: I mean, is your ultimate intention not to have this log of claims as part of the record? Is that the reason you have raised the issue?

PN66

MR WAINWRIGHT: Yes, we are objecting to it being admitted through Mr McCain.

PN67

THE DEPUTY PRESIDENT: All right, but are you saying that the log of claims has no relevance to the dispute before the Commission?

PN68

MR WAINWRIGHT: No, we are saying that this particular document has no relevance before the Commission and that if the respondent wished to admit it, then they should have brought Mr Munstege as evidence.

PN69

THE DEPUTY PRESIDENT: All right, I understand that, but if the proposition is going to be put by McCains that there was a particular claim raised by the AMWU as part of its log of claims, are you going to parry with that?

PN70

MR WAINWRIGHT: No, that's - in fact, we will be bringing that claim.

PN71

THE DEPUTY PRESIDENT: Okay, well, I really don't see why I should be terribly troubled by this.

PN72

MR WAINWRIGHT: Yes, thank you, Deputy President.

PN73

THE DEPUTY PRESIDENT: All right. Are there any other preliminary matters before we get underway?

PN74

MR WAINWRIGHT: Not from myself.

PN75

MS STOJANOVA: Deputy President, can I confirm what's happening with the location of the AMWU witnesses?

PN76

THE DEPUTY PRESIDENT: I have got my list of things I was going to do. I'm just trying to clear the decks.

PN77

MS STOJANOVA: Okay.

PN78

THE DEPUTY PRESIDENT: I now want to confirm who we have on the line in terms of witnesses because we have three McCain witnesses and three AMWU witnesses. In terms of the AMWU witnesses, Mr Wainwright, if your position is that you are receiving instructions from Ms McCarthy, it would seem to me to be most convenient to hear her witness evidence first and have the other witnesses out. Do you have a comment on that?

PN79

MR WAINWRIGHT: I'm happy to proceed in that way, Deputy President.

PN80

THE DEPUTY PRESIDENT: All right, thank you. Then, Ms Stojanova, in terms of your witnesses, noting that you have an instructor, what's the position in relation to Mr Carter, Mr McCain and Ms Nebozuk?

PN81

MS STOJANOVA: None of them are on the line and they will only be on the line when they are giving evidence.

PN82

THE DEPUTY PRESIDENT: Okay. I think I've got Mr Carter on the line at the moment, but I will ask him to - - -

PN83

MS STOJANOVA: Yes.

PN84

THE DEPUTY PRESIDENT: All right.

PN85

MS STOJANOVA: Mr Carter is our instructor.

PN86

THE DEPUTY PRESIDENT: Right. Well, he's also a witness?

PN87

MS STOJANOVA: Yes.

PN88

THE DEPUTY PRESIDENT: What were you proposing to do with Mr Carter?

PN89

MS STOJANOVA: To keep him on so that I can obtain instructions, if necessary, based on factual matters, which I need somebody from McCain to be able to advise me on factual matters, if necessary.

PN90

THE DEPUTY PRESIDENT: Mr Wainwright?

PN91

MR WAINWRIGHT: Well, from our perspective, that's not an acceptable way to proceed.

PN92

THE DEPUTY PRESIDENT: All right, I'll have him out. He's out. Okay? I just want to proceed. We have already gone half an hour and we've got until 1 o'clock. Please could I have Mr Kenna not admitted, Ms McInerney not admitted, Mr McCain, Mr Carter and Ms Nebozuk not admitted. We will proceed now with Ms McCarthy, if Ms McCarthy is there.

PN93

Good morning, Ms McCarthy.

PN94

MS McCARTHY: Good morning.

PN95

THE DEPUTY PRESIDENT: All right, it's not the greatest audio, but we will see what we can do. The first thing we are going to do is one of my associates will take an affirmation from you, so if you could just go through that process and then we will receive your evidence. Thank you.

PN96

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

PN97

MS McCARTHY: Angela McCarthy, (address supplied).

<ANGELA MCCARTHY, AFFIRMED [10.30 AM]

EXAMINATION-IN-CHIEF BY MR WAINWRIGHT [10.30 AM]

PN98

THE DEPUTY PRESIDENT: Ms McCarthy, Mr Wainwright will now deal with your evidence-in-chief and then there may be some cross-examination from Ms Stojanova. All right?‑‑‑Yes.

PN99

Thank you.

PN100

MR WAINWRIGHT: Ms McCarthy, could you please state your name and address for the record?‑‑‑Angela McCarthy, (address supplied).

PN101

Have you made two witness statements in this matter?‑‑‑I have.

PN102

Is the first witness statement, numbering 24 paragraphs, dated 7 April 2022, with two attachments?‑‑‑Yes.

PN103

Deputy President, I seek to admit that statement and the two attachments into evidence.

PN104

THE DEPUTY PRESIDENT: All right. Ms Stojanova, subject to cross-examination, any objections to the receipt of that witness statement?

PN105

MS STOJANOVA: Nothing.

PN106

THE DEPUTY PRESIDENT: Thank you. I will mark the witness statement of Angela McCarthy, which is dated 7 April and has 24 paragraphs and two attachments, appearing at page 30 of the court book, as exhibit A1.

*** ANGELA MCCARTHY XN MR WAINWRIGHT

EXHIBIT #A1 WITNESS STATEMENT OF ANGELA McCARTHY DATED 07/04/2022 (COURT BOOK PAGE 30)

PN107

MR WAINWRIGHT: Ms McCarthy, have you made a second witness statement, which appears at page 83 of the court book, numbering 27 paragraphs and dated May 2022, with - just checking - one attachment?‑‑‑Yes.

PN108

Deputy President, I seek to have that witness statement and the attachment marked.

PN109

THE DEPUTY PRESIDENT: Ms Stojanova, any objection to the receipt of the witness statement?

PN110

MS STOJANOVA: Nothing besides what has been discussed, Deputy President.

PN111

THE DEPUTY PRESIDENT: Thank you. Then I will mark the further witness statement of Angela McCarthy, appearing at page 83 of the court book, comprising 27 paragraphs, one attachment and dated May 2022, as exhibit A2. Thank you.

EXHIBIT #A2 FURTHER WITNESS STATEMENT OF ANGELA McCARTHY DATED 05/2022 (COURT BOOK PAGE 83)

PN112

MR WAINWRIGHT: Thank you, Deputy President.

PN113

THE DEPUTY PRESIDENT: Go ahead.

PN114

MR WAINWRIGHT: Ms McCarthy, were you involved in the negotiation of the 2019 McCain's enterprise agreement?‑‑‑Yes, I was.

PN115

Can you tell the Commission roughly how many meetings, how many negotiating meetings occurred for that agreement?‑‑‑There were a lot. They started in January and, to my recollection, they went to late July. Initially, I think they were fortnightly apart and, getting closer to the end, they were weekly and they were full day negotiations. I don't have the exact number, but there were a lot of them.

PN116

Of those many meetings, how many did you attend?‑‑‑All of them.

*** ANGELA MCCARTHY XN MR WAINWRIGHT

PN117

To the best of your knowledge, how many of those meetings did Ross Kenna attend?‑‑‑Most, if not all.

PN118

To the best of your knowledge, how many of those meetings did Brian McCain attend?‑‑‑I don't believe he attended all of them, but he attended most of them.

PN119

To the best of your knowledge, how many of those meetings did Michelle Nebozuk attend?‑‑‑I don't recall Michelle Nebozuk attending very many of them at all.

PN120

Okay. Could I ask you to turn to page 242 of the court book?‑‑‑Yes.

PN121

Have you seen that document before?‑‑‑Yes, I have.

PN122

Is that your signature affixed to it?‑‑‑Yes, it is.

PN123

Do you see the box there on the second page?‑‑‑Yes.

PN124

The box of text?‑‑‑Yes, I do.

PN125

In signing that document, what were you confirming?‑‑‑That the status of the claims was correct.

PN126

By 'the status of the claim', do you mean the second column of the table?‑‑‑Yes.

PN127

Thank you. You can see that that document is dated at the top 22 July?‑‑‑Yes.

PN128

At that stage, did the parties have an agreement in principle?‑‑‑Yes, we did.

PN129

Was there a draft document prepared to go to a vote?‑‑‑Yes, I believe that there was and we were happy with the draft document.

PN130

Did the draft document deal with the crewing issue for the potato packing area?‑‑‑Yes, it said 11.

PN131

Were you aware of the contents of the draft document in that respect?‑‑‑Yes.

*** ANGELA MCCARTHY XN MR WAINWRIGHT

PN132

Could I ask you to turn to page 200 of the court book?‑‑‑Yes.

PN133

Do you see there Mr McCain is giving evidence in relation to the change process in 2017? Did you attend any meetings in relation to that change process?‑‑‑In 2017, yes.

PN134

What plan was laid out by the company in relation to that change process?‑‑‑They were putting in some equipment changes and changing the line somewhat.

PN135

From your perspective, in terms of that vision that was outlined, was that vision ever brought to fruition in full?‑‑‑Absolutely not.

PN136

Can you explain to the Commission how the vision was actually implemented?‑‑‑I went to a walk-through with the company. Brian McCain was in attendance. The robots were supposed to be operated remotely via iPad. That never worked. The members said to me they would have better luck fitting the equipment with the iPad than actually trying to use it remotely, and the way the line was restructured, instead of jamming up one robot when things went wrong, it would jam up all three, and the line itself did not work because the sensors weren't picking up faults, and that wasn't an easy fix. McCain were trying to invent something themselves to fix that problem. I don't believe it was ever (audio malfunction).

PN137

Could I ask you to turn to page 203 of the court book?‑‑‑Yes.

PN138

And to remind yourself of paragraph 20?‑‑‑Yes.

PN139

Is Mr McCain's evidence in that respect correct?‑‑‑No, the word 'crewing' came from us. Certainly one of the delegates found the word 'manning' to be inappropriate and the others concurred.

PN140

Which delegate was that, do you recall?‑‑‑Michelle Owen was the one that picked it up.

PN141

THE DEPUTY PRESIDENT: Sorry, I didn't catch that name. Michelle Owens, was it?‑‑‑Michelle Owen, yes.

PN142

MR WAINWRIGHT: Owen, Deputy President.

*** ANGELA MCCARTHY XN MR WAINWRIGHT

PN143

THE DEPUTY PRESIDENT: Thank you.

PN144

MR WAINWRIGHT: Could I ask you to have a look at paragraph 21 there. Is it correct that the AMWU did not include in the list of claims an increase or change to crewing levels?‑‑‑The correct crewing levels were essential to our log of claims and we wanted 11 in the packing room.

PN145

Those are all my questions for the moment, Deputy President.

PN146

THE DEPUTY PRESIDENT: Thank you. Ms McCarthy, Ms Stojanova from McCains will have some questions for you now. Thank you.

PN147

MS STOJANOVA: Thank you.

CROSS-EXAMINATION BY MS STOJANOVA [10.40 AM]

PN148

Ms McCarthy, in your second witness statement in this matter, you included a third exhibit, which was originally titled 'AM3', didn't you?‑‑‑Yes, I'm just trying to find it now.

PN149

Deputy President, I would like to share my screen now to bring up this third exhibit for Ms McCarthy commencing on page 89 of the court book. Do I have permission to share my screen?

PN150

THE DEPUTY PRESIDENT: Yes, thank you.

PN151

MS STOJANOVA: Ms McCarthy, I'm going to share my screen now and then I'll tell you when it's sharing and you then let me know if you can see the screen. Just one moment. Ms McCarthy, can you see the screen now?‑‑‑I can. It's very small, but, yes, I can see the screen. Is that the same as what's in my court book?

PN152

Yes, it is. I'm going to rotate the page so it's easier for you to view. I'm going to ask you questions about this page in the court book, Ms McCarthy, and you just take your time. If you can't see the text that I'm referring to or if you want to look at it in your court book as well to confirm, you can do that. Ms McCarthy, I am going to read the column headings for this document first and then I'm going to ask you to confirm that you agree with the accuracy of what I'm reading out about the column headings. Do you understand that? I'll do an example and then I think you will say if you're not sure?‑‑‑Yes.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN153

Ms McCarthy, can you see my mouth moving?‑‑‑Yes.

PN154

The first column is titled 'Item number', isn't it?‑‑‑Yes.

PN155

The second column is titled 'Union claims tracker status', isn't it?‑‑‑Yes.

PN156

The third column is titled 'What we understand the claim seeks'; correct?‑‑‑Yes.

PN157

The fourth column is titled 'In principle agreement reached'; correct?‑‑‑Yes.

PN158

The fifth column is titled 'Work in progress'; correct?‑‑‑Yes.

PN159

The sixth column is titled 'Withdrawn'; correct?‑‑‑Yes.

PN160

And the seventh column is titled 'Not yet open for negotiations'; correct?‑‑‑Yes.

PN161

Ms McCarthy, I am now going to scroll down to item number 6, which you gave evidence about in your second witness statement. The item number is item number 6, isn't it?‑‑‑Yes.

PN162

The union claims tracker status in column 2 is, 'Set manning levels for each area', isn't it?‑‑‑Yes.

PN163

In the third column, which we just said is titled 'What we understand the claim seeks', the text says:

PN164

Within appendix profiles there are committed manning levels. The main body EBA does not commit them for any part of the operation.

PN165

Correct?‑‑‑Yes.

PN166

The 'Work in progress' column is highlighted; correct?‑‑‑Yes.

PN167

Then there's text at the end of the column which says:

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN168

From AMWU may require retesting with membership. From process requested to be dealt with bundling or safety courses.

PN169

Correct?‑‑‑Yes.

PN170

It was at paragraph 5 of your second witness statement, Ms McCarthy, that you introduced this document, didn't you?‑‑‑Paragraph 5 of my statement?

PN171

That you introduced this document?‑‑‑Yes.

PN172

Then, at paragraph 6 of your second witness statement, you said:

PN173

The log demonstrates that the appendix 1 crewing levels were central to our demands for the new EBA.

PN174

You said that, didn't you?‑‑‑Yes.

PN175

But nothing about the crewing levels was central to you, were they, Ms McCarthy?‑‑‑The crewing levels was absolutely central.

PN176

They weren't central to you because you waited over a year and four months since the commencement of the 2019 enterprise agreement to raise this dispute about them; isn't that true?‑‑‑No, we were raising constant disputes from 2017 onwards and we took the opportunity during the EBA to try and deal with them conclusively once and for all.

PN177

Ms McCarthy, you haven't answered the question that I've asked you, so I'll ask it again. You waited over a year and four months since the commencement of the 2019 enterprise agreement to raise this dispute. We're in the Commission about a dispute. You waited a year and four months from the commencement of the 2019 enterprise agreement to raise this dispute, didn't you?‑‑‑The numbers were changed recently, so that's why this dispute has come about.

PN178

Ms McCarthy, you haven't answered my question, so I'll ask it a third time. You waited, according to the dates that you have given to the Commission, a year and four months to raise this dispute that we are hearing today; isn't that correct?‑‑‑Yes, I suppose so.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN179

I put it to you, Ms McCarthy, that there is absolutely nothing about this item 6 of the log that demonstrates that whatever is in item 6 is central to the AMWU demands for the new EBA. That's the truth, isn't it?‑‑‑For the new EBA?

PN180

For the 2019 enterprise agreement?‑‑‑It was central to our claims for the 2019 agreement. Set manning levels was absolutely central.

PN181

You haven't answered the question that I've asked you, so I'll ask it again. There's nothing about this item 6 that we are looking at now in this log that demonstrates that whatever is in the item 6 is central to the AMWU demands for the EBA. That's the truth, isn't it?‑‑‑No.

PN182

I put it to you that there is absolutely nothing about this item 6 in this log that demonstrates that whatever is in the item 6 is central to the AMWU demands for the EBA. What do you say, Ms McCarthy?‑‑‑I say it's - it was absolutely central. The manning levels were the very hot topic for those negotiations and it was a key claim of our members.

PN183

We will go back to looking at item number 6 in your third exhibit. You agreed just now that the union claims tracker status in column 2 is 'Set manning levels for each area'; correct?‑‑‑Yes.

PN184

The word 'set' is a verb or a doing word, isn't it, Ms McCarthy?‑‑‑Yes.

PN185

So there's an action in those words to set something; you agree with that, don't you?‑‑‑Yes, a set number, a specific number for each area of people.

PN186

I will just confirm so that the Commission is able to ensure that you have answered the question that I've asked you. There's an action in the words 'to set', 'to set' are demonstrating an action, to set something; correct?‑‑‑Yes, we wanted to have set numbers in each area.

PN187

In the third column, which we just said is titled 'What we understand the claim seeks', the words say:

PN188

Within appendix profiles there are committed manning levels. The main body EBA does not commit them for any part of the operation.

PN189

Do you see where I'm reading from, Ms McCarthy?‑‑‑I do.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN190

And the word 'commit' is also a verb or a doing word, Ms McCarthy; do you agree with that?

PN191

MR WAINWRIGHT: Deputy President, if I could just interrupt there. My friend has asked two questions about grammatical interpretation of particular words. Those are not the matters that Ms McCarthy is here to give evidence on, and so I ask, if my friend wants to interpret the grammar of the document, she can do that in her submissions, but it's not appropriate to do it through the witness.

PN192

MS STOJANOVA: Deputy President, Ms McCarthy is here to give evidence about the meaning of the exhibit that she has put in her witness statement. I am asking her questions about the meaning of that exhibit.

PN193

THE DEPUTY PRESIDENT: I am going to allow the questions.

PN194

MS STOJANOVA: Ms McCarthy, the appendix profiles, whatever they are, they are committed; correct?‑‑‑The appendix profiles - sorry, I'm not understanding you, sorry.

PN195

No, that's okay. The appendix profiles are committed to something; correct?‑‑‑Yes.

PN196

The appendix profiles are already committed; correct?‑‑‑Yes.

PN197

But the main body of the EBA is not committed; that's correct, isn't it?‑‑‑The main body of the EBA didn't have those numbers, yes.

PN198

So the main body of the EBA is not committed; correct?‑‑‑I assume that is what that means, yes. It wasn't written by me, but I assume that's what it means.

PN199

So it's your understanding it's the main body of the EBA that needs to be committed; correct?‑‑‑No, my understanding was that the numbers in the appendix committed the numbers, but that those numbers weren't in the body of the agreement.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN200

Ms McCarthy, I'm asking you to speak to these words that you've put forward in your exhibit. You said to me just now you agreed the main body of the EBA was not committed. That is what is being said in this clause, so it's the main body of the EBA that needs to be committed. That's what you've said, isn't it?‑‑‑The main body of the agreement didn't carry the set numbers, the appendix did, and we were working - - -

PN201

Ms McCarthy, please answer the questions that I'm asking you. I am asking you questions about item 6, the words that you have put forward and that you have relied on in your witness statement. Please answer the questions that I'm asking you about item 6. We are talking about the wording in this third column. It's the main body of the EBA that needs to be committed. We're just talking about the wording in this third column. That's correct, isn't it?‑‑‑It says the main body of the EBA does not commit them for any part of the operation; the appendix does.

PN202

Okay, so the appendix is committed, the main body is not committed; that's correct?‑‑‑Yes.

PN203

It's the main body of the EBA that requires action, not the appendix profiles; correct?‑‑‑That's not the way I read it.

PN204

I put it to you, Ms McCarthy, that that is precisely what those words say. What do you say to that?‑‑‑I say to that that the appendix contained the numbering, the amount of people required.

PN205

Ms McCarthy, please answer the questions that I'm asking you. I am asking you questions - - -

PN206

MR WAINWRIGHT: I'm sorry, Deputy President, if I could object to that. Ms McCarthy has answered the question which is being asked about the appendix profiles and the body of the agreement. She has stated what her evidence is about those two things.

PN207

MS STOJANOVA: She hasn't answered the questions, Deputy President, she is moving away from the questions that I'm asking her about the wording in the third column and she is giving evidence about other things besides the wording in that third column.

PN208

MR WAINWRIGHT: I put it to you that your questions are not clear at the moment and the evidence that is being given - - -

PN209

MS STOJANOVA: I'm not being cross-examined.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN210

THE DEPUTY PRESIDENT: From my perspective, there's asking questions and getting the answers that you get and getting the answers that you want. I'm not going to give a tutorial on cross-examination, but you can put the question again, you get the answer that you get, and if that's not the answer that you want, you put the proposition in a different way, I suppose.

PN211

MS STOJANOVA: Well, Deputy President, as far as this issue goes, I will put it once more for Browne v Dunn and then I'll move on.

PN212

THE DEPUTY PRESIDENT: All right.

PN213

MS STOJANOVA: Ms McCarthy, I put it to you that according to the wording in that third column in item 6 in your exhibit, it's the main body of the EBA that requires action, not the appendix profiles. What do you say to that?‑‑‑I say, no, that's not how I understand it. We asked for 11 people in the packing room and that was put in the appendix. I don't know how else to answer that.

PN214

Ms McCarthy, at the very end of item 6, the words read:

PN215

From AMWU may require retesting with membership. From process requested to be dealt with bundling or safety courses.

PN216

Correct?‑‑‑That's what it says.

PN217

It says 'bundling or safety courses'; correct?‑‑‑That's what it says, yes.

PN218

Now I'm going to take you to page 95 of the court book, to the last row on that page. We are still in your third exhibit. So, we are looking at the last row, the item number is TBC; correct?‑‑‑The last row is TBC, yes.

PN219

The union claims tracker status says, 'Protections against unreasonable workloads'; correct?‑‑‑Yes.

PN220

In the third column, 'What we understand the claim seeks' - that's the name of the column - the third column says:

PN221

Claims that the workload currently allocated to staff is at times unreasonable, too much to expect, becomes an argument in particular when restructuring.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN222

Correct?‑‑‑Yes, that's what it says.

PN223

The 'Work in progress' column is highlighted; correct?‑‑‑Yes.

PN224

And then, at the end of the row, there's the wording:

PN225

Part of safety items and to be bundled with all safety items for a broader discussion. AMWU have a proposed draft that has been shared.

PN226

Correct?‑‑‑Yes.

PN227

Ms McCarthy, I am now going to take you to the first exhibit of your first witness statement at page 34 of the court book. I am just going to twist it around for you so that you can see it in the right view. Ms McCarthy, you say that the first exhibit of your witness statement is an email from Brian McCain, don't you?‑‑‑Yes.

PN228

This email from Brian McCain came after the log of claims that we were just looking at; isn't that right?‑‑‑Came after? 27/06/19. Sorry, I can check the date on - are you talking about the previous document you had up there?

PN229

Ms McCarthy, at paragraph 5 of your witness statement, you said the log of claims we were looking at was dated 24 April 2019. Can you confirm that?‑‑‑I'm sorry, are you asking me if this email from Brian McCain came after the log of claims was served on the company?

PN230

Ms McCarthy, it will assist you if I ask you questions and I'll just elucidate this information that way. First of all, you say, at paragraph 5 of your witness statement, that the log of claims that we just looked at is dated 24 April 2019, don't you?‑‑‑Are you talking about my supplementary witness statement or the one on page 30?

PN231

I believe I'm speaking to your first witness statement.

PN232

THE DEPUTY PRESIDENT: It's the supplementary statement on page 83 at paragraph 5: copy of the AMWU log of claims dated 24 April 2019.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN233

MS STOJANOVA: Ms McCarthy, I will get that up for you so that you can see. So, log of claims dated 24 April 2019. That was the log of claims that we were looking at. Sorry, you were correct, Ms McCarthy, it was your further witness statement, not your first one. Do you agree that in your further witness statement at paragraph 5, you say the log of claims that we were just looking at is dated 24 April 2019?‑‑‑Yes.

PN234

Now I'm going to go back to the first exhibit of your first witness statement at page 34, which is where we just were. You just said this email which you say is from Brian McCain is dated 27 June 2019, don't you?‑‑‑Yes.

PN235

So the log of claims came first and then Brian McCain sent his email; correct?‑‑‑Yes.

PN236

The subject line of this email says, 'Safe manning clauses 10 and 26.10'; correct?‑‑‑Yes.

PN237

Under the first line here in the email, it says:

PN238

Set manning levels for each area. Permanent change clause 10, temporary disruption 26.10.

PN239

Correct?‑‑‑Yes.

PN240

These clauses 10 and 26.10 have amendments or have been drafted in relation to safety matters; isn't that correct?‑‑‑Yes.

PN241

I am going to scroll down to draft clause 26.10 in this email. The title of this draft clause 26.10 is 'Safe staffing levels'; correct?‑‑‑Yes.

PN242

That clause is about safe staffing levels, isn't it, Ms McCarthy?‑‑‑It's a safety mechanism as part of the package, yes.

PN243

Safe staffing levels is about safe staffing levels; is that right, Ms McCarthy?‑‑‑Actually it's about how to handle extraordinary circumstances within that area, so it's not to do with the number of people required, it's what to do with extraordinary circumstances, absenteeism, equipment malfunction.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN244

In relation to the safety of staffing levels; correct?‑‑‑Yes, as part of the package, yes.

PN245

Okay, now we are going to go back to the exhibit that Mr Wainwright took you through on page 242 of the court book. You just gave evidence about this in your examination-in-chief?‑‑‑Yes.

PN246

Again I'm just going to turn it around so you can see it the right way up. You can see that on the screen, Ms McCarthy?‑‑‑I can.

PN247

You can also look at your court book in your lap, if that's easier for you?‑‑‑My court book's black and white (indistinct).

PN248

We will go back to the white box that Mr Wainwright took you through and we see the following wording, and it is small even on this screen. It says:

PN249

The claims status within this document are agreed by the signatories below as the items agreed to within negotiations as at 22/07/2019 that form part of an in principle agreement to be endorsed by the union to its members.

PN250

Correct?‑‑‑Yes.

PN251

That's your signature there, isn't it, Ms McCarthy?‑‑‑Yes.

PN252

This in principle agreement came after your log of claims exhibit; correct?‑‑‑Yes.

PN253

This in principle agreement came after your exhibit of Brian McCain's email; correct?‑‑‑Yes.

PN254

The first log of claims in April 2019; correct?‑‑‑Yes, the log of claims, yes.

PN255

And then Brian McCain's email in June 2019; correct?‑‑‑Yes.

PN256

Then you sign this in principle agreement in July 2019; correct?‑‑‑Yes.

PN257

If we go back up to item number 6 in the document, we see that the union claims status tracker says, 'Set manning levels for each area'; correct?‑‑‑Yes.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN258

The 'Mutually agreed' column is filled in; correct?‑‑‑Yes.

PN259

And the 'Offer location' says, 'Permanent change clause 10, temporary disruption 26.10'; correct?‑‑‑That's what it says, yes.

PN260

The location for the in principle agreement for item 6 was in clause 10 and clause 26.10; correct?‑‑‑Yes.

PN261

The location for the in principle agreement for item 6 is not clause 16 of appendix 1 of the 2019 enterprise agreement; correct?‑‑‑I was agreeing to - what I signed to was the status of - - -

PN262

Ms McCarthy, can you please answer the question that I'm asking you. This offer location in relation to item 6 is not clause 16 of appendix 1, is it?‑‑‑No, it's not.

PN263

The union claim 'Set manning levels for each area' meant making changes to clause 10 and clause 26.10, didn't it?‑‑‑No, it was packaged, part of the whole.

PN264

But that's not what this document shows, does it, Ms McCarthy?‑‑‑I signed to the status of the claims being agreed and I remember signing that. It was a very fraught situation, but I was signing to the status of the claims being agreed. I had seen a draft and it had 11 in the packing area.

PN265

Ms McCarthy, I will just ask the question again because you haven't answered it. That's not what this document shows, is it?‑‑‑I wasn't signing off on the offer location, I was signing off on the status of the claims being mutually agreed.

PN266

I put it to you, Ms McCarthy - in fairness to you, I will give you a final opportunity and I'll put it to you to say that that is not what this document says. What do you say to that?‑‑‑The document doesn't deal with the appendix, but I was signing off on the status of the claims, and that's what it says right at the end, I was signing off on the status of the claims.

PN267

Ms McCarthy, the union claim 'Set manning levels for each area' did not involve clause 16 of appendix 1 of the 2019 enterprise agreement. That's the truth, isn't it?‑‑‑Absolutely not. I caucused with the delegates to make sure we had the correct numbers to present to the company about manning levels in each area and those numbers were presented to the company for discussion.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN268

You signed, Ms McCarthy, to the union claim 'Set manning levels for each area' not involving clause 16 of appendix 1, didn't you?‑‑‑I signed to the status of the claims and they were agreed. The company was keen to have the protected action ballot dropped. The location was the company's business, I suppose, but I had seen the draft, it had 11 for the packing room and I was satisfied.

PN269

Ms McCarthy, you signed to everything in this in principle agreement, didn't you?‑‑‑Well, it says 'status of the claims' and that's what I was signing to.

PN270

You signed to everything in this in principle agreement, not just the status of the claims information. That's the truth, isn't it?‑‑‑I was signing to the status of the claims and the number in the packing room had been agreed.

PN271

But you agree, don't you, Ms McCarthy, that there's nothing about your signature that says that you are only signing to the status of the claims in this document? That's the truth, isn't it?‑‑‑Well, it says, 'The claims status within this document are agreed.' That's what I was signing to.

PN272

I put it to you that there is nothing in this document that demonstrates that your signature is limited to only the union claims status tracker and nothing else in this in principle agreement. What do you say to that?‑‑‑I say, no, I was signing to the status of the claims. It was an extremely fraught situation when I signed that. That was to the status of the claims, which it says in the box at the end, and that's what I was signing to.

PN273

I put it to you, Ms McCarthy, that your evidence is not accurate?‑‑‑I can only give the answer I've given. That's what I was signing to, the status of the claims.

PN274

We have a final item to look at in this exhibit, which is item 29. Can you see that? It's the last row on the first page of this in principle agreement. Can you see 29?‑‑‑Yes, I can.

PN275

The union claims tracker status is still, 'Protections against unreasonable workloads'. Can you see that?‑‑‑Yes.

PN276

This is the same protections against unreasonable workloads that I took you through in your log of claims in the third exhibit; isn't that right, Ms McCarthy?‑‑‑Sorry, can you repeat that? Protections, the same as - - -

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN277

Earlier in this cross-examination, when we were looking at your log of claims, we looked at two claims. We looked at item 6 and then we looked at a second item where the number was TBC and the claim was protections against unreasonable workloads. That's correct, isn't it? What I'm saying is this item 29, 'Protections against unreasonable workloads', is the same protections against unreasonable workloads that we just looked at in your log of claims?‑‑‑No, there was manning levels, but there was also a claim about managing extraordinary circumstances, which is, I think, what that is referring to.

PN278

I put it to you - - -?‑‑‑(Indistinct.)

PN279

I put it to you, Ms McCarthy - I'm sorry, were you speaking? There was - if you have something else to say, Ms McCarthy, please complete it. I couldn't hear if you were speaking?‑‑‑There were two claims. There were set manning levels and there was the claim about how to protect workers if there was an extraordinary circumstance like lots of absenteeism or an equipment malfunction that caused disruption. So, I believe that was part of the disruption and extraordinary circumstances claim.

PN280

Ms McCarthy, what I'm asking you is this item 29, 'Protections against unreasonable workloads', is the same protections against unreasonable workloads that I took you through in your log of claims in your third exhibit earlier in this cross-examination?‑‑‑I would have to go back to that third exhibit, sorry, can you tell me what page that was on?

PN281

I'll take you to it. I'm just getting the page number. Just one second.

PN282

THE DEPUTY PRESIDENT: It's page 95.

PN283

MS STOJANOVA: Remember, Ms McCarthy, we started off in this cross-examination and we were looking at your exhibit. Can you see the screen, Ms McCarthy? This is your exhibit from your witness statement. Do you recognise this exhibit from your witness statement, Ms McCarthy? We looked at this earlier?‑‑‑Yes.

PN284

Remember we went down first to item number 6? Do you remember us doing that?‑‑‑Sorry, that's not page 95.

PN285

Sorry, down at 91, remember we looked at item number 6 on page 91?‑‑‑Yes, 'Set manning levels for each area', yes.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN286

Then we went down to page 95 and I asked you questions about this column here, TBC, Protections against unreasonable workloads'?‑‑‑Yes, they were separate.

PN287

Just keep this in mind for the moment, this one, 'Protections against unreasonable workloads.' You remember we discussed this?‑‑‑Yes.

PN288

Just keep that in your mind for a second. Now we're going to go back to the in principle agreement. One moment. This protections against unreasonable workloads, Ms McCarthy, this is referring to the same claim that we just looked at in your exhibit, isn't it?‑‑‑Yes.

PN289

In relation to this protections against unreasonable workloads, this item 29, the 'Mutually agreed' column is filled in; correct?‑‑‑Yes.

PN290

Because item 29 was mutually agreed; correct?‑‑‑Yes.

PN291

And the offer location for item 29 is, 'Permanent change clause 10, temporary disruption 26.10'; correct?‑‑‑Yes.

PN292

The wording in your exhibit log of claims, 'Set manning levels for each area' meant making changes to the main body of the enterprise agreement for safety, didn't it, Ms McCarthy?‑‑‑No, they were separate. One was about setting the manning levels for each area and the other one was about extraordinary circumstances and making sure no one person was supposed to do more than their own job and slowing down the line (indistinct), there was exceptional circumstances. So, they were separate. They were part of a package, but they were separate items.

PN293

The wording 'Set manning levels for each area' - in your first exhibit, Brian McCain's email, the wording 'Set manning levels' from Brian McCain's email meant making changes to the main body of the enterprise agreement for safety, didn't it?‑‑‑No, the 'Set manning levels' was dealt with in the appendix.

PN294

Brian McCain's email, your exhibit that we looked at, shows that it meant making changes to clauses 10 and 26.10 in the body of the enterprise agreement; isn't that right?‑‑‑That's not how I read it.

PN295

In Brian McCain's exhibit, the in principle agreement that you signed, the words 'Set manning levels for each area' meant making changes to the main body of the enterprise agreement for safety, didn't they?‑‑‑If you're talking about the one that I signed, that was a signature to agree that the status was agreed, and that's all that was meant by the signature.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN296

I put it to you that the in principle agreement shows that the words 'Set manning levels for each area' meant making changes to clauses 10 and 26.10 in the body of the enterprise agreement; isn't that right?‑‑‑No, it meant that 11 people were shown in the packing room in the appendix in the draft that we'd been shown and the status of that was agreed.

PN297

I put it to you, Ms McCarthy, that nothing that you have just said is represented in the text of those documents?‑‑‑I'm sorry, I don't agree. I was there. When I signed that, it was a very fraught situation and I was signing to the status of those claims being agreed. There was significant pressure to have the protected action ballot withdrawn.

PN298

I'm not asking you what you intended, the question that I'm putting to you is that nothing that you just said is represented in the text of the documents that I have taken you through today; isn't that correct?‑‑‑No, I don't agree.

PN299

The bundled safety clauses that you refer to in your exhibit log of claims, they became the safety amendments to clauses 10 and 26.10 in the body of the enterprise agreement; isn't that right?‑‑‑The safety clauses were to deal with extraordinary circumstances. The manning levels was a separate claim for the appendix.

PN300

I put it to you that the union's use of the phrase 'Set manning levels for each area' meant safety amendments to the body of the enterprise agreement, not appendix 1, the whole way through the negotiation process; isn't that right, Ms McCarthy?‑‑‑Absolutely not. That was made very clear to the company. Absolutely not.

PN301

That's what it says in the log of claims that you showed us in April; isn't that right?‑‑‑No, the log of claims says, 'Set manning levels' and I know this because it was caucused with the delegates did we have the numbers right, the numbers were presented to the company. So, it was part of the package. How to handle extraordinary situations was a separate measure but also part of the package, but the 'Set manning levels' stood alone as part of that. We wanted set manning levels for each area. That's what we asked the company for.

PN302

Brian McCain's email in June shows that the union phrase 'Set manning levels for each area' meant safety amendments to the body of the enterprise agreement, not appendix 1; isn't that correct?‑‑‑No, that's not how I read it.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN303

The in principle agreement that you signed in July shows us that the union use of the phrase 'Set manning levels for each area' means safety amendments to the body of the enterprise agreement, not appendix 1, of the 2019 enterprise agreement; isn't that right?‑‑‑No, the status of the claims was correct.

PN304

It's in black and white in the text of all of those documents, isn't it, Ms McCarthy?‑‑‑No. At the end of - I'm sorry, if you can take me back to that document, it talks about the status of the claims in the document that I signed. That's what I was signing to, the status of the claims.

PN305

Item 6 in your log of claims, 'Set manning levels for each area', was one and the same as the safe crewing levels that you refer to in paragraph 8 and 9 of your second witness statement. Isn't that right, Ms McCarthy?‑‑‑Sorry, you're going to have to take me back to those documents.

PN306

MR WAINWRIGHT: Deputy President, if I could object. I think that question has been asked and answered on multiple occasions now. The answer has always been the same.

PN307

MS STOJANOVA: It hasn't and I have my Browne v Dunn obligations that I need to complete.

PN308

THE DEPUTY PRESIDENT: Take the witness to the documents then.

PN309

MS STOJANOVA: So we will go back to item 6. Ms McCarthy, if you want to get your second witness statement up and then I'll show you item 6 in the log of claims, and then you will have both of them in front of you?‑‑‑Okay, so I've got my second witness statement.

PN310

Ms McCarthy, what I am saying is that item 6 in this log of claims, 'Set manning levels for each area', is one and the same as the safe crewing levels that you refer to in paragraphs 8 and 9 of your second witness statement. What do you say to that?‑‑‑I say, no, the set manning levels for each area was a claim, but also a claim about handling extraordinary circumstances, workers not having to perform two jobs at the same time.

PN311

I put it to you that you never negotiated on having 11 workers in the potato packing team during negotiations between the AMWU and McCain for the 2019 enterprise agreement?‑‑‑Absolutely false. The delegates caucused about the numbers and we presented those numbers to the company.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN312

I put it to you that you have provided no evidence that you did that?‑‑‑Except the claim for 'Set manning levels in each area' which it shows there, so that's what we asked for.

PN313

I put it to you that you never raised as any type of AMWU claim that the AMWU wanted 11 workers in the potato packing team during negotiations for the 2019 enterprise agreement?‑‑‑We absolutely did. The delegates caucused about whether we had - we were asking for the right numbers in each area and then those numbers were presented to the company.

PN314

You have not provided any written text to this Commission that says that the AMWU wanted 11 workers in the potato packing area, have you?‑‑‑Well, the appendix says 11 workers. That's what we asked for in the potato packing area.

PN315

You have provided no written text to the Commission that the AMWU raised as a claim that they wanted 11 workers in the potato packing area during negotiations for the 2019 enterprise agreement, have you?‑‑‑Other than the outcome of the EBA, no.

PN316

You have led no evidence besides your belated statement in your second witness statement that the AMWU raised that the AMWU wanted 11 workers in the potato packing area during negotiations for the 2019 enterprise agreement; that's correct, isn't it?‑‑‑'Set manning levels' was a key claim all throughout the agreement; it was in our log of claims; it was discussed with the company, and that was the outcome in the appendix. I don't know how else to answer that.

PN317

You have provided no AMWU log of claims that says that the AMWU wanted 11 workers in the potato packing area during negotiations for the 2019 enterprise agreement, have you?‑‑‑Other than it being discussed during negotiations, but I've provided no document, so I suppose it says in the minutes we asked the company for 11 on such and such a day.

PN318

You have provided no evidence to demonstrate that you or anyone at the AMWU ever said to Brian McCain that the AMWU wanted 11 workers in the potato packing area during negotiations for the 2019 enterprise agreement. That's the truth, isn't it?‑‑‑We asked the company for 11 in that area, as we did for several other areas where we nominated numbers. Whether Brian remembers or whether he was at that meeting, I do not know, but we asked the company for 11 in the potato packing area.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN319

My question to you was, or what I put to you was that you have provided nothing to demonstrate, no written text, no log of claims, no record, you have provided no record that demonstrates that you or anybody else at the AMWU ever said to Brian McCain that the AMWU wanted 11 workers in the potato packing area. That's true, isn't it?‑‑‑That's what 'Set manning levels for each area' means in our claims.

PN320

You have provided no record to this Commission that demonstrates that you or anyone at the AMWU ever said to any member of the McCain management team that the AMWU wanted 11 workers in the potato packing area as part of negotiations for the 2019 enterprise agreement. That's the truth, isn't it?‑‑‑Other than what I've said, 'Set manning levels for each area' in the log of claims, it being brought up during negotiations, the outcome being 11 in the appendix, which was agreed.

PN321

You have provided no detail of when the AMWU purportedly raised that the AMWU wanted 11 workers in the potato packing areas as part of negotiations for the 2019 enterprise agreement, have you?‑‑‑It was early in the negotiations and I don't know if Brian was a negotiator in the early part of the negotiations. I think he came in a bit later.

PN322

At paragraph 16 of your second witness statement, you said:

PN323

During the negotiations, AMWU shop steward, Leigh Aspland was in correspondence with Brian McCain about crewing levels in the potato packing area.

PN324

You said that, didn't you?‑‑‑Yes.

PN325

But Leigh Aspland didn't correspond with Brian McCain as part of the negotiations for the 2019 enterprise agreement, did he?‑‑‑It wasn't part of the negotiations. He was raising issues that he was asking for Brian to pay attention to.

PN326

He didn't correspond on behalf of the AMWU, did he, Leigh Aspland?‑‑‑He was corresponding as a delegate for this area.

PN327

I put it to you that he wasn't corresponding on behalf of the AMWU. What do you say to that?‑‑‑Well, as a delegate, yes, he would have been corresponding on behalf of the AMWU.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN328

Leigh Aspland corresponding with Brian McCain about something is not evidence that the AMWU raised as a claim crewing levels in the disputed clause 16 during negotiations for the 2019 enterprise agreement, is it?‑‑‑Crewing levels were raised with Brian McCain all the time because there were supervisors and managers doing shop floor work and it was a constant point of contention. It was getting raised constantly, which is why the manning levels in the area were such a big deal.

PN329

Ms McCarthy, your answer has no connection to my question. My question was: Leigh Aspland corresponding with Brian McCain about something is not evidence that the AMWU raised as a claim crewing levels in the disputed clause 16 in negotiations for the 2019 enterprise agreement; that's correct, isn't it?‑‑‑Well, no, actually I think that it is because it was an ongoing issue, which was why it was a claim, the set manning levels in each area, because it was such an ongoing issue. So, I think it is evidence.

PN330

At paragraph 17 of your second witness statement, you said:

PN331

This shows there was an ongoing debate about the appropriate size of the potato packing team well beyond the conclusion of the Ballarat Potato Regeneration Change Impact Statement.

PN332

You said that, didn't you, Ms McCarthy?‑‑‑Yes.

PN333

In fact, Ms McCarthy, all that you have shown with Leigh Aspland's email is that Leigh Aspland corresponded with Brian McCain; isn't that right?‑‑‑Well, no, it's evidence of an ongoing issue and the reason we made the claim in the first place.

PN334

Leigh Aspland's email is not evidence that the AMWU had raised the disputed clause 16 as an issue during negotiations for the 2019 enterprise agreement; isn't that right?‑‑‑Well, we did raise it with the company as an issue.

PN335

But that's not evidence of that, is it?‑‑‑I think that it is.

PN336

At paragraph 18 of your witness statement, you said:

PN337

Further, Mr Aspland, on behalf of the AMWU, requested 30 minutes to discuss the matter on our next EBA.

PN338

You said that, didn't you?‑‑‑Yes.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN339

On page 113 of the court book, there's an email from Leigh Aspland to Brian McCain cc'd into other people, including you, Ms McCarthy. Can you access that page of the court book or do you know what I'm referring to?‑‑‑Yes.

PN340

You can see the email from Leigh Aspland to Brian McCain is cc'd into other people, including you, Ms McCarthy?‑‑‑Yes.

PN341

Leigh Aspland cc'd in other AMWU representatives, including Ross Kenna; that's correct, isn't it?‑‑‑Yes.

PN342

The email is dated 26 April 2019?‑‑‑Yes.

PN343

In fact, Brian McCain responded to this email, didn't he?‑‑‑I believe - actually I'm not sure. You'd have to show me in the court book.

PN344

That's fine. Deputy President, this exhibit is not in the court book because it was in Brian McCain's second statement. I can share my screen so that Ms McCarthy can see it, if you're comfortable?

PN345

THE DEPUTY PRESIDENT: Sorry, the email of 26 April?

PN346

MS STOJANOVA: This is Brian McCain's response to - - -

PN347

THE DEPUTY PRESIDENT: Okay. You have got Mr Aspland but you haven't got the response to it; is that what you're saying?

PN348

MS STOJANOVA: Yes. Both emails are dated 26 April 2019. Leigh Aspland sent his email to Brian McCain, then Brian McCain responded, and this is Brian McCain's fifth exhibit attached to his second witness statement, but it's not in the court book, so I can share my screen so that Ms McCarthy - - -

PN349

THE DEPUTY PRESIDENT: Why isn't it in the court book if it's an exhibit to his statement?

PN350

MS STOJANOVA: The court book was prepared earlier in the week and then the witness statements were sent later in the week.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN351

THE DEPUTY PRESIDENT: But I've got four attachments to his witness statement.

PN352

MS STOJANOVA: That's correct, so that's to his first witness statement, and then this is a fifth attachment to his supplementary witness statement.

PN353

THE DEPUTY PRESIDENT: Right. I see. So, the supplementary witness statement has been exchanged?

PN354

MS STOJANOVA: Yes.

PN355

THE DEPUTY PRESIDENT: Yes, all right, thank you.

PN356

MS STOJANOVA: Ms McCarthy, I am going to share my screen to show you Brian's email and I'll let you know when I'm doing that and when you should be able to see it. Okay, so it should be sharing now, Ms McCarthy. This is the fifth exhibit to Brian McCain's second witness statement, also dated 26 April - can you see that - 2019?‑‑‑Yes.

PN357

On the same day, it's 12.15 pm, Brian McCain wrote back to Leigh Aspland and cc'd in everybody that Leigh Aspland had emailed and others?‑‑‑Yes.

PN358

In that email, Brian said:

PN359

Thanks, Leigh, can you please provide me with specific information, names and dates for example, so that I can follow up with the specific individuals. Very hard to follow up with this very general information, as I have said before.

PN360

Can you see that?‑‑‑(No audible reply)

PN361

Are you still reading, Ms McCarthy, or are you not able to see it?‑‑‑No, I've read it, yes.

PN362

You can see that sentence that I just read out?‑‑‑Yes.

PN363

But Leigh Aspland never responded to Brian McCain's email, did he?

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN364

MR WAINWRIGHT: Deputy President, this witness can't answer that question.

PN365

MS STOJANOVA: We don't know if she can answer that question or not. She can answer to what's within her knowledge.

PN366

MR WAINWRIGHT: Well, it's about what Leigh Aspland did. It's not a proper question for this witness.

PN367

MS STOJANOVA: Well, Mr Wainwright, you asked Ms McCarthy if Ross Kenna attended negotiation meetings, if Brian McCain attended negotiation meetings, if Michelle Nebozuk attended negotiation meetings. My question is in the same vein.

PN368

MR WAINWRIGHT: She was in those meetings, she was a witness to it.

PN369

MS STOJANOVA: She is cc'd into this email exchange. She can answer to the extent of her knowledge and I ask her nothing more.

PN370

Ms McCarthy, to your knowledge, did Leigh Aspland ever respond to Brian McCain's email?

PN371

MR WAINWRIGHT: Well, Deputy President, we are presuming that, if there was a response, that Ms McCarthy was copied in, which we don't know.

PN372

THE DEPUTY PRESIDENT: Yes.

PN373

MR WAINWRIGHT: And so I renew my objection that this witness can't be asked to answer about what a third person did with Mr McCain.

PN374

THE DEPUTY PRESIDENT: She can answer whether she knows or doesn't know. Where it goes from there - - -

PN375

MR WAINWRIGHT: Thank you, Deputy President.

PN376

THE DEPUTY PRESIDENT: It depends what she's being asked.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN377

MS STOJANOVA: Ms McCarthy, to your knowledge, Leigh Aspland never responded to Brian McCain's email, did he?‑‑‑I don't know.

PN378

To your knowledge, Leigh Aspland never provided Brian McCain with the details that Brian McCain had requested to follow up, did he?‑‑‑He did on some occasions because these emails were common and happened often. We were continually chasing up the company about supervisors doing shop floor work, so, on some occasions, it put the delegate in the position of having to name supervisors. All we wanted the company to do was to stop this from happening. This happened often. I don't know in this instance whether Leigh responded. He had to sometimes, but it put the delegate in a position of naming their supervisors that were doing shop floor work.

PN379

Ms McCarthy, as I understand your answer to the question that, to your knowledge, Leigh Aspland never provided Brian McCain with the details that Brian McCain had requested, as I understand it, your answer is that you don't know?‑‑‑I don't. On this occasion, I don't.

PN380

Ms McCarthy, you never responded to Brian McCain's email, did you, to this email on the screen in front of you?‑‑‑I don't know if I responded to it, I don't know if I had a conversation with Brian McCain about it. I don't know.

PN381

To your knowledge, none of the other AMWU representatives cc'd into this email responded to Brian McCain, did they, Ms McCarthy?‑‑‑I don't know.

PN382

To your knowledge, no one followed up because the contents - including yourself - to your knowledge, no one, including yourself, followed up because the content of Mr Aspland's email on 26 April 2019 was not on the negotiating agenda for the 2019 enterprise agreement; isn't that right, Ms McCarthy?‑‑‑It wasn't part of the negotiations, but it was an issue on the day and Leigh was seeking to set aside time to have it dealt with.

PN383

On page 117 of the court book, there's another email from Leigh Aspland to Brian McCain and cc'd into other people, including you, Ms McCarthy; isn't that right?‑‑‑Yes.

PN384

Leigh Aspland cc'd in other AMWU representatives, including Ross Kenna; that's correct?‑‑‑Yes.

PN385

The email is dated 30 April 2019; isn't that right?‑‑‑Yes.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN386

And Leigh Aspland says:

PN387

Brian, I was thinking we could put a half hour aside on our next EBA date to discuss this further.

PN388

Correct?‑‑‑Yes.

PN389

To your knowledge, Brian McCain never replied to that email, did he?‑‑‑I don't know.

PN390

You never followed up with an email, did you, Ms McCarthy?‑‑‑I don't know.

PN391

To your knowledge, no other AMWU representative cc'd into that email or otherwise followed up either, did they, Ms McCarthy?‑‑‑I don't know.

PN392

No one followed up because the content of Mr Aspland's email on 30 April 2019 was not on the negotiating agenda for the 2019 enterprise agreement; isn't that right, Ms McCarthy?‑‑‑It wasn't on the agenda, but it was relevant to our claim of set manning levels, as proof of why they were needed.

PN393

The fact that Leigh Aspland sent this email demonstrates that the content of his email was not on the agenda for the 2019 enterprise agreement; isn't that right?‑‑‑Actually I can't answer that. Whether it came up in negotiations on that day, I cannot remember.

PN394

To your knowledge, Leigh Aspland sent the email because none of the other AMWU members had picked up the issue on the agenda for the 2019 enterprise agreement; isn't that right?‑‑‑Sorry, none of the other delegates had picked up what?

PN395

The issue of the content of Leigh Aspland's email on the agenda for the 2019 enterprise agreement?‑‑‑Well, in the context that we were bargaining for set manning levels, it was probably raised, but I can't remember.

PN396

To your knowledge, after Leigh Aspland sent the email, no one replied to him; isn't that right?‑‑‑I don't know.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN397

After Leigh Aspland sent that email, the issue still didn't get picked up for the agenda for the 2019 enterprise agreement; isn't that right?‑‑‑It was probably discussed because it was relevant to our claim, but I can't remember.

PN398

There were no references to crewing levels by the AMWU that ever led to the AMWU raising crewing levels as a claim for the proposed 2019 enterprise agreement; isn't that right?‑‑‑Crewing levels and the number of them was a claim and it was a central claim.

PN399

None of Mr Aspland's references to crewing levels were ever picked up by any other AMWU member; isn't that right?‑‑‑I cannot remember. It was relevant to the claim and to negotiations. Whether this specific email was raised during negotiations, I can't remember.

PN400

None of Mr Aspland's references were discussed in relation to the drafting of the 2019 enterprise agreement; isn't that right?‑‑‑Well, no, of course they were relevant because crewing numbers were a problem and this is proof that it was.

PN401

None of Mr Aspland's references were discussed in relation to clause 16 of appendix 1 of the proposed 2019 enterprise agreement; isn't that right?‑‑‑Well, no, it was relevant.

PN402

Ms McCarthy, at paragraphs 19 to 25 of your second witness statement, you talk about cold work, don't you?‑‑‑Sorry, paragraph 19 of what page?

PN403

Paragraphs 19 to 25 of your second witness statement?‑‑‑The second witness statement.

PN404

MR WAINWRIGHT: Could you give the witness a page reference, please?

PN405

THE DEPUTY PRESIDENT: Page 84 of the court book.

PN406

THE WITNESS: Yes, I've got it.

PN407

MS STOJANOVA: I put it to you, Ms McCarthy, that there's no connection between paragraphs 19 to 25 of your second witness statement about cold work that's capable of being understood as in connection to the disputed clause 16?‑‑‑In relation to the dispute at 12.16?

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN408

The disputed clause 16. If you want, I can put the question again?‑‑‑Please put the question again.

PN409

I put it to you, Ms McCarthy, that there's no connection between paragraphs 19 to 25 of your second witness statement about cold work that is connected to the disputed clause 16 in appendix 1?‑‑‑Well, yes, because in order to have the cold breaks, there would need to be those numbers, those set manning levels in the packing room, otherwise the cold breaks can't be taken.

PN410

I put it to you, Ms McCarthy, that there's no connection capable of being understood between those paragraphs, paragraphs 19 to 25 of your second witness statement, and negotiations during the 2019 enterprise agreement for the disputed clause 16 in appendix 1?‑‑‑That there's no, sorry, connection, are you saying?

PN411

Correct. Do you want me to put the question again?‑‑‑Yes, please.

PN412

I put it to you that there's no connection between paragraphs 19 to 25 of your second witness statement and negotiations during the 2019 enterprise agreement for the disputed clause 16 in appendix 1?‑‑‑Well, there is a connection in that for these people to have their breaks, they need those numbers in the set manning levels, so that's the connection.

PN413

I've got a question, Ms McCarthy, and, if you wish, I can take you to the different parts of your witness statement, so I put it to you, Ms McCarthy, that nothing that you have said establishes any evidence of a connection during negotiations between items 6 and 9 of exhibit 3 in your second witness statement?‑‑‑But 6 and 9 were different. Six is about set manning levels in the appendix 9 was about handling extraordinary circumstances in a safe manner. So, they were part of the package, they were components.

PN414

In paragraph 26 of your second witness statement, you talk about changes made to appendix 1 of the 2019 enterprise agreement, don't you?‑‑‑Yes.

PN415

But you acknowledge that the only change made to the disputed clause 16 was to change the word 'manning' to the gender-neutral word 'crewing'?‑‑‑And also having the agreed numbers in place, but, yes, 'manning' was changed to 'crewing'.

PN416

At the end of paragraph 27 of your second witness statement, you say:

PN417

We were content that 11 in clause 16.1 of appendix 1 actually meant 11.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN418

You said that, didn't you?‑‑‑Sorry, what clause?

PN419

At the end of paragraph 27 of your second witness statement?‑‑‑Yes.

PN420

'We', meaning the AMWU?‑‑‑Yes, and the delegates, yes.

PN421

'We' meant the AMWU not McCain management, Ms McCarthy?‑‑‑Well, no, it was agreed during negotiations.

PN422

Ms McCarthy, you just said 'We' means the AMWU?‑‑‑Well, 'We' - sorry, I'll read it again. During negotiations, yes, 'We' being the negotiating team.

PN423

I put it to you, Ms McCarthy, that you have just controverted the evidence that you just gave, which was that 'We' meant the AMWU. I put it to you, based on your own words, that 'We' meant the AMWU alone?‑‑‑Well, I think I misspoke, I'm sorry, I didn't read it properly.

PN424

I put it to you that none of your evidence demonstrates a common understanding of intention between the negotiating parties for the 2019 enterprise agreement about the meaning of the disputed clause 16?‑‑‑No, clause 16 was discussed with the company and the numbers that we wanted.

PN425

I put it to you that you have provided no evidence that the AMWU ever discussed crewing levels in the disputed clause 16 during negotiations for the 2019 enterprise agreement?‑‑‑No, we did put it to the company. The delegates and I caucused on it, we arrived at numbers that we felt were correct, they were presented to the company and agreed.

PN426

I put it to you that you have provided no evidence that the AMWU raised crewing levels in the disputed clause 16 as a claim during negotiations for the 2019 enterprise agreement?‑‑‑The crewing levels, I don't know how the claim could be clearer. It says, 'Set crewing levels.'

PN427

I put it to you that the only discussions that were ever had about the disputed clause 16 was about the change of the word 'manning' to the gender-neutral word 'crewing'; isn't that right?‑‑‑No.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN428

I put it to you that it was, in fact, Brian McCain who objected to the sexist language and not the AMWU, as you claim?‑‑‑No, it was my delegate, Michelle Owen.

PN429

I put it to you that the negotiations for the 2019 enterprise agreement did not set crewing levels in any area, including 11 per shift in the potato packing area?‑‑‑No, the numbers were discussed and 11 was arrived as being right for that area.

PN430

You said at paragraph 13 of your first witness statement, and if you like, I can find the number and give it to you, but I will read the text in case you remember it anyway. You said at paragraph 13 of your first witness statement:

PN431

I also recall that our members gave strong and clear instructions that they would not support any agreement that included reductions in the crewing levels for any of the teams.

PN432

?‑‑‑That's correct.

PN433

But no one is saying that McCain has reduced crewing levels upon the commencement of the 2019 enterprise agreement from what they were prior, are they?‑‑‑No one is suggesting what, sorry, that McCain have reduced?

PN434

I'll break it up. Prior to the commencement of the enterprise agreement, the number of employees in the disputed potato packing area was eight; correct?‑‑‑I don't know.

PN435

Ms McCarthy, in the disputed potato packing area just before the 2019 enterprise agreement came in, and I mean now - sorry - in the disputed potato packing area just before the 2019 enterprise agreement came in, there were eight people on; that's right, isn't it?‑‑‑I don't recall the number of people, but I know that it wasn't enough, which is why it was a claim. I don't recall the number of people that were on at that time.

PN436

Do you know that there are nine people on now?‑‑‑I know that there are nine people on now, yes, and that's become a huge problem.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN437

No one is saying and you're not saying that McCain has reduced crewing levels upon the commencement of the 2019 enterprise agreement. Ms McCarthy, as I understand it, your problem is that there aren't 11 people; correct?‑‑‑There aren't 11 people and there was a structural change late last year bringing it down to nine, which was causing all sorts of problems. It was never - we were never consulted, it was never discussed, and it's not working, yes.

PN438

Ms McCarthy, you know that there was the consultation and change process in 2017, don't you?‑‑‑Yes.

PN439

And you know that before that consultation and change process, there were 11 people, don't you?‑‑‑Yes.

PN440

You know that after that consultation and change process, it went down to eight, don't you?‑‑‑No, I don't recall the number it went down to. I know it was reduced, but I don't recall the number that it went to.

PN441

It went down to eight and now it's gone up to nine; are you aware of that?‑‑‑What I am aware of is the number wasn't working and the company actually had to put on people as floaters because their vision of having less people in a better line didn't come to fruition, it did not work, so they had to put on floaters.

PN442

So you don't know how many people have been in the disputed potato packing area, but you are not saying that McCain has reduced crewing levels since the commencement of the 2019 enterprise agreement?‑‑‑Well, yes, they have reduced them. Recently it's gone down to nine, and that's why this dispute has occurred.

PN443

Ms McCarthy, I put it to you that, simply factually, the numbers have - since the 2017 consultation and change process, the numbers went down to eight and then they have increased to nine. Ms McCarthy, I put it to you simply factually that the numbers have never gone down below eight?‑‑‑I don't recall the numbers. I recall that their change did not work and they had to put on floaters, so whatever number they were trying to arrive at, it didn't work and they had to put on extra people because it didn't work.

PN444

Okay, so you don't know, but you're not suggesting that McCain have ever reduced the numbers below eight? I guess you don't know, but you're still not suggesting that McCain has ever reduced the disputed crew numbers below eight; correct?‑‑‑In 2017, I don't know what they reduced the numbers to, but I know that they had to put on extra people because it didn't work. I do not know what the numbers were in 2017.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN445

Ms McCarthy, if the number of persons in the potato packing area was so essential to you and it was such a central claim during the bargaining process, then why is that you don't know what the numbers are?‑‑‑I don't recall. That was back in 2017 or something.

PN446

MR WAINWRIGHT: If I can object to that question. It wasn't Ms McCarthy's evidence that she didn't know what the numbers are. She told you what the numbers are now. The question that you're seeking to ask is, 'Why didn't you know exactly what the operational impact on the numbers was at a particular point in time in 2018?' which I don't think she's in a position to answer.

PN447

MS STOJANOVA: Ms McCarthy has not given me the numbers. Also, I don't understand what kind of objection that was. That seems to be a submission that Mr Wainwright has interjected into this cross-examination.

PN448

MR WAINWRIGHT: I am merely pointing out that Ms McCarthy doesn't operate the factory. If you ask her what the numbers are now, she will tell you, but in terms of how the factory was managed historically in 2017/2018, those are not reasonable questions to put to this witness. That's not her job.

PN449

MS STOJANOVA: I'm not asking questions about that any more. I think we can move on. I have no more questions to ask about it.

PN450

Ms McCarthy, to your knowledge, the crewing levels, to the extent that you know, whatever it is that you know, the crewing levels in the disputed potato packing area haven't decreased again following the major change and consultation process, and if you don't know, just say you don't know?‑‑‑I know that they decreased around the end of last year because I was getting complaints and, since then, in meeting with the company, I understand there'd been a structural change down to nine that we weren't consulted about. So, my understanding is - and it's only my understanding - that there was a structural change and it was reduced down to nine.

PN451

Ms McCarthy, this hearing is about whether McCain needs to revert back to and increase the current crewing levels to 11?‑‑‑Yes.

PN452

And this hearing is also about whether, to your knowledge, McCain needed to revert back to and increase the current crewing levels back to 11 upon the commencement of the 2019 enterprise agreement; correct?‑‑‑Yes, it did need to be 11 from the 2019 agreement.

PN453

You said your members didn't want further reductions; correct?‑‑‑That's right.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN454

Now I put it to you that the crewing levels have never decreased from the point that they were after the 2017 consultation and change process. Your answer to that is that you don't know, which is fine, but I've put that to you, that the numbers haven't decreased again since they decreased once following the 2017 consultation and change process, so my point or the position that I'm putting to you is if the AMWU agreed to keep crewing levels as they were for members, then your members would have been fine. No, let me start again.

PN455

You said in your statement, you said at paragraph 13 of your witness statement:

PN456

I also recall that our members gave strong and clear instructions that they would not support any agreement that included reductions in the crewing levels for any of the teams.

PN457

I'm just trying to recentre - - -?‑‑‑That's sounds right, but I haven't got my witness statement - page 30?

PN458

I have already asked you this, so it's confusing for you to go back - I appreciate that - I just asked you before, at paragraph 13 of your first witness statement, you said:

PN459

I also recall that our members gave strong and clear instructions that they would not support any agreement that included reductions in the crewing levels for any of the teams.

PN460

?‑‑‑Yes.

PN461

What I am putting to you now is, given that the crewing levels never reduced, your members were fine because your point was that they didn't want any further reductions; correct?‑‑‑No, they wanted 11 because, actually, things weren't fine, hence the emails from Leigh Aspland showing that there were problems. That's why we wanted 11.

PN462

So, if your members didn't want any further reductions and there never were any other reductions, your members would have been fine?‑‑‑No reduction from 11.

PN463

Do you want me to repeat something or is that the answer that you would like to give?‑‑‑No, no reduction from 11. Eleven was our aim for the EBA.

PN464

I will move on. I put it to you, Ms McCarthy, crew levels in the disputed clause 16 were not part of negotiations for the 2019 enterprise agreement?‑‑‑Sorry, you are directing me to clause - - -

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN465

No, no, just a broad question. I put it to you that the crewing levels in the disputed clause 16 were not part of negotiations for the 2019 enterprise agreement?‑‑‑Crewing levels were part of negotiations for the 2019 agreement.

PN466

I put it to you that the AMWU did not include in their list of claims a demand for a specific number of people to be employed in specific parts of the plant?‑‑‑No, that's not correct. We discussed the numbers and what would be the appropriate numbers for each area and we arrived at 11 for the packing room.

PN467

PN468

I put it to you that the only change to the disputed clause 16 between the 2016 and 2019 enterprise agreements was to update the word 'manning' to the gender-neutral word 'crewing'?‑‑‑Well, that was changed, but, no, we arrived at 11 and that was the number that we'd agreed upon.

PN469

I put it to you that there was no agreement to change the definition in clause 1 of appendix 1 in the 2019 enterprise agreement to mean anything other than a reference to appendix 1 of the 2019 enterprise agreement?‑‑‑Sorry?

PN470

I'll take you through it. Clause 1 of appendix 1 gives a definition of the meaning of the word 'agreement' in appendix 1?‑‑‑Sorry, can you take me to appendix 1?

PN471

THE DEPUTY PRESIDENT: Page 296 of the court book.

PN472

THE WITNESS: Okay. Sorry, now, you were directing me to what part of appendix 1?

PN473

MS STOJANOVA: If we look at appendix 1, clause 1, it's called 'Title' in bold?‑‑‑Yes.

PN474

Then, under that, it says:

PN475

This agreement shall be known as the McCain Foods Ballarat Production Employees 7-Day Continuous Shift Roster Agreement 2014.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN476

?‑‑‑Yes, I see the date, yes.

PN477

I put it to you that there was no agreement to change clause 1 of appendix 1?‑‑‑And there's also a new clause about us meeting twice a year to determine if there are any 8-hour positions available. I believe that was new. The crewing bit was new.

PN478

Ms McCarthy, I'm not sure what you are referring to. My question was, clause 1 of appendix 1, it is saying between the 2016 and 2019 enterprise agreements, and my question to you or the proposition I am putting to you is that there was no agreement to change clause 1 of appendix 1 to mean anything other than:

PN479

This agreement shall be known as the McCain Foods Ballarat Production Employees 7-Day Continuous Shift Roster Agreement 2014.

PN480

?‑‑‑No, because there were changes and there was a new clause at 2.2, there was changes to calling it 'crewing' rather than 'manning', there was - - -

PN481

Ms McCarthy, I think you are talking about other clauses in appendix 1. We are looking at clause number 1?‑‑‑Sorry.

PN482

I just want you to understand the question. I think that you think I'm asking you about something else in appendix 1?‑‑‑All right.

PN483

When you look at appendix 1, can you see - under the line, can you see a number 1?‑‑‑Yes.

PN484

And can you see the word 'Title'?‑‑‑Yes.

PN485

Then, under that, can you see text that says:

PN486

This agreement shall be known as the McCain Foods Ballarat Production Employees 7-Day Continuous Shift Roster Agreement 2014.

PN487

?‑‑‑Yes.

PN488

So that is clause 1. Do you understand me when I'm referring to clause 1?‑‑‑Yes.

*** ANGELA MCCARTHY XXN MS STOJANOVA

PN489

The proposition that I am putting to you is that there was no agreement between the parties to change clause 1 to mean anything other than the text there:

PN490

This agreement shall be known as the McCain Foods Ballarat Production Employees 7-Day Continuous Shift Roster Agreement 2014.

PN491

There was no agreement between the parties to change clause 1 and that meaning in the 2019 enterprise agreement?‑‑‑Clause 1 wasn't discussed. Clause 1 of appendix 1 wasn't discussed.

PN492

Thank you. Final question: I put it to you that there was no agreement to change the current crewing levels in the potato packing area to revert back to the crewing levels listed in clause 16.1 of appendix 1 in the 2019 enterprise agreement?‑‑‑No, we wanted 11 and we asked for 11.

PN493

Deputy President, that concludes my questioning of this witness.

PN494

THE DEPUTY PRESIDENT: Thank you. I just had a question, please. Ms McCarthy, you may have given an answer to this before, but during the negotiations for the 2019 agreement, did you know how many workers were working in the potato packing area?‑‑‑During the negotiations, no, I actually didn't. I knew that there were problems and I spoke with the delegates and they said, 'We need 11 to operate that area properly', so prior to that, no, I actually don't know what the numbers were.

PN495

All right, thank you. Mr Wainwright, re-examination?

PN496

MR WAINWRIGHT: Yes, thank you, Deputy President.

RE-EXAMINATION BY MR WAINWRIGHT [12.00 PM]

PN497

Ms McCarthy, could I ask you to have a look at page 259 of the court book, please?‑‑‑259?

PN498

Yes, please?‑‑‑Yes.

PN499

You see the dispute resolution process there?‑‑‑Yes.

*** ANGELA MCCARTHY RXN MR WAINWRIGHT

PN500

Is there a role for you, as an organiser, to initiate disputes?‑‑‑Yes.

PN501

Is it the case that most, if not all, disputes start with the employee taking a matter to their supervisor?‑‑‑Yes.

PN502

We have been talking about the term 'appendix profiles' and I just want to, first of all, take you to page 90 of the court book?‑‑‑Yes, I have it.

PN503

You see there that we have item 6, 'Set manning levels for each area' and then we have, in the next column, the text, 'Within appendix profiles'?‑‑‑Yes.

PN504

I apologise, but I am going to ask you to turn now to page 300 of the court book?‑‑‑I have page 300.

PN505

You see there 'Potato packing, 11 roles' at the top of the page?‑‑‑Yes.

PN506

In the previous document there was a reference to 'appendix profiles'. 'Potato packing, 11 roles', is that one of the appendix profiles that was being referred to?‑‑‑Yes.

PN507

If I could ask you to turn the page to appendix 2?‑‑‑Appendix 2?

PN508

Yes?‑‑‑What page?

PN509

To page 301 of the court book?‑‑‑Yes.

PN510

Can I bring your attention to clause 2.4?‑‑‑I've got it, yes.

PN511

Again, is that one of the appendix profiles that was being referred to in AM3?‑‑‑Yes.

PN512

Thank you. You were asked questions about Mr Aspland. Was Mr Aspland a part of the negotiating team?‑‑‑Yes, he was.

PN513

I might be a little more specific. I apologise, Deputy President. Was Mr Aspland part of the negotiating team for the 2019 McCain EBA?‑‑‑Yes, he was.

*** ANGELA MCCARTHY RXN MR WAINWRIGHT

PN514

Do you recall the emails that my friend took you to from Mr Aspland to Mr McCain?‑‑‑There were many emails like that, so I'm not sure if I remember those specific ones very well, but there were often emails like that.

PN515

If I could ask you to turn to page 117 of the court book?‑‑‑Yes.

PN516

I ask you to have a look at the last paragraph of Mr Aspland's email. Do you see there the reference to, 'Supervisors have been hands-on in the packing'?‑‑‑Yes, yes.

PN517

Was supervisors performing operators' work an issue that was discussed in negotiating the 2019 McCain EBA?‑‑‑Absolutely, and it was an ongoing issue.

PN518

Thank you. You gave evidence and you touched on a couple of times the process of caucusing in preparing the log of claims?‑‑‑Yes.

PN519

Could you explain to the Deputy President what's involved in that process?‑‑‑The delegates and myself meet before negotiations begin with the company, and we would discuss the claims that we're raising or what we needed to put to the company. For the purposes of this, I obviously don't work there, so I was discussing with the delegates what number was appropriate to be asking for in the set man levels, and that was discussed.

PN520

When you say, 'the delegates', do you mean the delegates or shop stewards representing the AMWU?‑‑‑Yes.

PN521

Are those people employees of McCain's?‑‑‑Yes.

PN522

In caucusing with them, is it fair to characterise that as them telling you what to negotiate for?‑‑‑Yes.

PN523

That concludes my re-examination, Deputy President.

PN524

THE DEPUTY PRESIDENT: Thank you. Ms McCarthy, that completes your witness evidence, so you're excused from further evidence, and you can remain as an attendee throughout the balance of the hearing; I just ask that you keep your microphone off?‑‑‑Yes.

*** ANGELA MCCARTHY RXN MR WAINWRIGHT

PN525

Thank you.

<THE WITNESS WITHDREW [12.07 PM]

PN526

MS McCARTHY: Shall I tell the next person to come in?

PN527

THE DEPUTY PRESIDENT: Well, that's Mr Wainwright's call at this point.

PN528

MR WAINWRIGHT: Deputy President, we call Ross Kenna.

PN529

THE DEPUTY PRESIDENT: Thank you. If you could ask Mr Kenna to come in, please, Ms McCarthy. Good afternoon, Mr Kenna. It's Clancy DP here. We're going to take your evidence now. The first thing that will happen is my associate will take an affirmation from you.

PN530

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

PN531

MR KENNA: It's Ross Andrew Kenna, and my residential address is (address supplied).

<ROSS ANDREW KENNA, AFFIRMED [12.08 PM]

EXAMINATION-IN-CHIEF BY MR WAINWRIGHT [12.08 PM]

PN532

THE DEPUTY PRESIDENT: Thank you. Mr Wainwright, please.

PN533

MR WAINWRIGHT: Thank you, Deputy President. Mr Kenna, thank you for making yourself available and thank you for your patience. Could you please for the record state your name and work address?‑‑‑My name's Ross Andrew Kenna. My work address is 685 Spencer Street, West Melbourne, Victoria.

PN534

Have you made an initial witness statement in this matter numbering 13 paragraphs?‑‑‑Yes.

PN535

Deputy President, I seek to have that statement marked.

PN536

THE DEPUTY PRESIDENT: Ms Stojanova, subject to cross‑examination, any objection?

*** ROSS ANDREW KENNA XN MR WAINWRIGHT

PN537

MS STOJANOVA: Nothing that hasn't already been discussed, Deputy President.

PN538

THE DEPUTY PRESIDENT: Thank you. The witness statement of Ross Kenna, which appears in the court book at pages 74 and 75, will be marked exhibit A3. Thank you.

EXHIBIT #A3 WITNESS STATEMENT OF ROSS KENNA

PN539

MR WAINWRIGHT: Thank you, Deputy President. Mr Kenna, have you made a further witness statement in this matter beginning at page 99 of the court book, numbering 36 paragraphs, dated May 2022, with three attachments?‑‑‑Yes, I have.

PN540

And I'm sorry, I should have asked you, are the contents of both of those statements true and correct?‑‑‑Yes, they are.

PN541

Deputy President, I seek to have that statement admitted into evidence.

PN542

THE DEPUTY PRESIDENT: Thank you. Ms Stojanova, again?

PN543

MS STOJANOVA: No objections besides those that have already been discussed.

PN544

THE DEPUTY PRESIDENT: Thank you. The further witness statement of Ross Kenna that is in the court book at page 99 and comprises 36 paragraphs with three attachments will be marked exhibit A4. Thank you.

EXHIBIT #A4 FURTHER WITNESS STATEMENT OF ROSS KENNA AND THREE ATTACHMENTS

PN545

MR WAINWRIGHT: Thank you, Deputy President. Mr Kenna, can I ask, did you participate in negotiating the 2019 McCain EBA?‑‑‑Yes, I did.

PN546

In what capacity did you participate in that process?‑‑‑As an AMWU shop steward, or delegate, and I was elected from the French fry (indistinct).

PN547

Were you employed by McCain's at the time?‑‑‑Yes, I was.

*** ROSS ANDREW KENNA XN MR WAINWRIGHT

PN548

What work did you perform at that time?‑‑‑At that time I was – there was a couple of different roles. My job title at the time was in the packing room operator, which consisted of either running the shred line packing equipment or the robots. I also from time‑to‑time ran the shred line as well as process operator, as (indistinct) there is.

PN549

When did you begin working for McCain's?‑‑‑At around September 2003.

PN550

When did you cease working for McCain's?‑‑‑In - I believe it was March 2021.

PN551

Can you recall, in rough terms, how many meetings there were to negotiate the McCain's 2019 EBA?‑‑‑As McCain had opted and engaged a Fair Work Commissioner under the interest‑based bargaining, a form of negotiation, we had several meetings. If I was to – it would have been – it went from early 2019 through to 50 a year(?), so – well, it probably would have at least been twice monthly, and as we got further in we were meeting weekly. So there was a few (indistinct) as well, so probably, you know, close to 50 or 60 meetings.

PN552

How many of those meetings did you attend?‑‑‑I believe I attended every single meeting. I did, however, leave one meeting early. I had an appointment that I had to attend and I left in the afternoon session after lunch.

PN553

To the best of your knowledge, how many of those meetings did Angela McCarthy attend?‑‑‑To the best of my knowledge, Angela attended all of the bargaining meetings.

PN554

And to the best of your knowledge, how many of the meetings did Brian McCain attend?‑‑‑To the best of my knowledge, Brian became involved probably in the January or February meeting. From my recollection, Ms McCarthy(?) was the chief negotiator for the French frying, and Mr (Indistinct) was the chief negotiator for the pizza dinner plant end. Brian became more involved probably around March/April.

PN555

And then all the way to the end?‑‑‑Then all the way through to completion.

PN556

To the best of your knowledge, how many meetings did Michelle Nebozuk attend?‑‑‑From my recollection, Michelle joined very late in the piece. There had been several other HR representatives from McCain. Mr Brian Noland(?) and Ms Deirdre – I forget her last name, I apologise - and Ms Erin McGee were the three chief HR consultants from McCain's. As they all left, or either resigned or were terminated, Ms Nebozuk joined later in the piece.

*** ROSS ANDREW KENNA XN MR WAINWRIGHT

PN557

Could I ask you to have a look at page 73 of the court book?‑‑‑Yes. Is that the AMWU updated (indistinct)?

PN558

Yes. If I can ask you to have a look specifically at the structure there of the potato packing area? You can see: case deck, four operators; packing machine operator, four operators; and grading room, one operator?‑‑‑Yes, that - - -

PN559

Does that structure accord with the structure that you worked in before you left McCain's?‑‑‑Yes, it did, sir.

PN560

Can I ask you to turn to page 205 of the court book, please?‑‑‑205, yes.

PN561

This is the first witness statement of Mr McCain, and I want to point you to paragraph 31, which continues on to page 205, and in particular to that reference to you there, which states:

PN562

Ross Kenna, potato packing employee, made it clear he did not want to include specific numbers of employees for each area in the 2019 enterprise agreement.

PN563

And I want to ask you if that statement is correct?‑‑‑I believe it's a correct statement.

PN564

So what position, if any, did you put about specific numbers?‑‑‑As our logs stated, there was a request from - an endorsed position from the membership that there be numbers in each area. Through the interest‑based bargaining process there were several other items that were identified. I'm sure the Deputy President is aware of the IVB process, but for your benefit, Mr Wainwright, you were asked to look at the underlying clauses for issues and then try to find common ground. The numbers were numbers because we were running short a lot; structurally there was issues, and there were other things identified during that IVB process that led to other clauses being developed.

*** ROSS ANDREW KENNA XN MR WAINWRIGHT

PN565

Is it fair to say that that's one of the things that Cribb C was doing with the whiteboard and different coloured Texta's?‑‑‑Yes. That's correct, and as the process went through, we identified common areas, common truths, and what problem we were trying to address, and differing areas of our original claim would be borne out. It's a different way to approach it. In the last and other enterprise agreements I've been involved in, the union will tend to present a log of claims, then we argue about wording, and there's a resolution either way at the end, whereas the interest‑based bargaining basically look at the underlying issues with what you're trying to achieve, and whether – how (indistinct) to facilitate for both parties what are viewed the best outcome.

PN566

If we can turn to page 105 of the court book?‑‑‑Yes, I'm there.

PN567

And I just ask you to have a look at point 3?‑‑‑Yes.

PN568

From your perspective, what's written there at point 3, what did that refer to?‑‑‑It was to set the structural manning levels for each area, or crewing levels, but manning levels is what we had in our original plan.

PN569

What part of the agreement would that impact on?‑‑‑That would impact on both the attachments, so the attachment that facilitated the 24/7 production in French fry, and the production that was going on in the pizza and dinner (indistinct).

PN570

So, you've referred to attachments to the EBA there, and by that do you mean Appendix 1 and Appendix 2?‑‑‑What became Appendix 1 of (indistinct); yes, in the 2016 agreement.

PN571

In terms of, if we could have a look at – I'll just clarify first - we might turn to Appendix 2 of the agreement, because I think you mentioned in your answer 'pizza?'---Yes.

PN572

That might not be clear to the Deputy President. Could you turn to page 301 of the court book, please?‑‑‑Yes, I'm there now.

PN573

And so what work do you say is being – and is this the attachment 2 that you referred to earlier?‑‑‑Yes, the (indistinct) is for the (indistinct). We would call it the pizza plant.

PN574

What's the difference between the pizza plant in Appendix 2 and the work that Appendix 1 does?‑‑‑They're completely different plants, and the business runs completely differently at each plant. The French fry end was running a continuous seven‑day roster. The pizza and dinner plants are both the same. They're food plants and they have different structures of rostering, so therefore there was a question to the company about the staffing levels for all the whole – the entire company, not just French fry and/or dinner, pizza.

PN575

Could I ask you now to have a look at page 273 of the court book?‑‑‑Yes, I am now there.

PN576

Do you see there the section for cold breaks?‑‑‑Yes, I do.

*** ROSS ANDREW KENNA XN MR WAINWRIGHT

PN577

Can you tell the Deputy President how that provision was negotiated?‑‑‑This provision was negotiated after an attempt by the company before the 2019 agreement to change the working style of people in the freezers. The proposal from the company was to rotate from the stack freezer into the (indistinct) room as their warm area. During the consultation piece, the company was made aware of some consultant work the company had paid for that identified that the breaks that McCain had built into the freezer system, the (indistinct) and practice, were class‑leading, and the attempt at changing the freezer workers taking their warm breaks in the grain room was stopped. As a result of that, it became clear that we believed we needed to enshrine that in the enterprise, and from that discussion that clause at 20.14, the work in cold environment break facilities came about.

PN578

Was there a discussion about the labour implications of the instruction of the cold break regime?‑‑‑The labour there was to ensure that people got their breaks, so if there was to be enough labour to facilitate the breaks that were required under the enterprise.

PN579

Could I ask you to have a look at page 54 of the court book?‑‑‑54?

PN580

Yes, please?‑‑‑Yes, I'm there.

PN581

We're looking at the risk analysis prepared by two occupational health and safety reps in the area. Can I ask, were you elected as an occupational health and safety rep?‑‑‑Yes, I was.

PN582

What area did you cover?‑‑‑So, it changed. My first election, I was a whole of packing room health and safety representative. After a structure change I moved roles, so I moved to a weekend crew. I became the weekend crew health and safety representative.

PN583

In that capacity were you made familiar with this document?‑‑‑This document appears to be after I left McCain, dated the 15th of the 2nd(?) 2022.

PN584

Thank you. Those are all the questions I have for this witness, Deputy President.

PN585

THE DEPUTY PRESIDENT: Thank you. Mr Kenna, Ms Stojanova, who is the advocate for McCain's will have some questions for you now, please?‑‑‑Thank you, Deputy President.

CROSS-EXAMINATION BY MS STOJANOVA [12.30 PM]

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN586

MS STOJANOVA: Mr Kenna, I'm going to take you to your second witness statement. I'm going to take you to the paragraphs and you can look at them in your own court book, but I'll also share my screen so that, if you wish, you can see them on the screen in front of you. Can you see the screen that I'm sharing, Mr Kenna?‑‑‑I can. It's hard to read on the technology we have here, so if you can please point me to the page in the court book that would be greatly appreciated.

PN587

The page is 99. I'm also going to refer you to the paragraphs in your second witness statement. So you can look at the screen or you can look at the court book in front of you, wherever you can see the text. Mr Kenna, my first question to you is, or the first point I put is that in paragraph 7 of your second witness statement you talk about 'setting crewing levels for each area being a key issue for workers', don't you?‑‑‑Yes.

PN588

In paragraph 8 of your second witness statement you talk about the number of workers in the potato packing area, don't you?‑‑‑That's correct.

PN589

In paragraph 9 of your second witness statement you talk about 'safe crewing levels and cold breaks' don't you?‑‑‑Yes.

PN590

And then in paragraph 10 you say, 'These negotiations led to the inclusion of clause 27.9, clause 8.4 and clause 20.14 of the 2019 agreement', correct?‑‑‑That's correct.

PN591

Clause 27.9 of the 2019 enterprise agreement is about safe crewing levels, correct?‑‑‑That's correct.

PN592

Clause 8.4 of the 2019 enterprise agreement talks about when salaried employees can interact with equipment, correct?‑‑‑That's correct.

PN593

And clauses 8.4.1 and 8.4.2 are about safety concerns, correct?‑‑‑Yes, that's correct.

PN594

Clause 20.14 of the 2019 enterprise agreement is about working in cold environments, correct?‑‑‑That is correct.

PN595

Though also safety-related, correct?‑‑‑That is correct, yes.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN596

In paragraph 11 of your second witness statement you said, 'These issues flow from our central demand to set manning levels for each area.' You said that, didn't you?‑‑‑That is correct, yes.

PN597

So the union demand to set manning levels for each area meant the inclusion of clauses 27.9, 8.4 and 20.14, that's what you said in your statement?‑‑‑That's correct.

PN598

The union demand to set manning levels for each area meant safety changes, didn't it?‑‑‑Yes, I note that I think that you're misconstruing what I've actually written there. As I provided evidence to Mr Wainwright, the process of bargaining was different in 2019 to the usual process of bargaining. Through the bargaining process, the IVB process with Cribb C, there was the original – and as you can see, the original claim was set man levels in every area, which we had and we did. What flowed from that was a conversation about the underlying issues driving that claim. There was also identified several areas, the new clause it came out of. So the underlying issue was the set manning levels in each area, which flowed on to several other clauses being written.

PN599

Mr Kenna, I put it to you that, based on the wording of your second witness statement, which you've read out, the union demands to set manning levels for each area meant safety changes. What do you say to that?‑‑‑Yes, set manning levels is about safety, yes.

PN600

'The union demands to set manning levels for each area did not mean change or agreement or discussion in relation to clause 16 of Appendix 1 of the 2019 enterprise agreement.' That's what your statement shows, isn't it?‑‑‑My statement shows that the core issue was safety. One part of the way we resolved the safety issues at heart was setting the core number of employees in each area, in both prepared foods and in (indistinct), which leads to clause 16 of the appendix.

PN601

You agree, don't you, Mr Kenna, that none of the clauses that you refer to in those paragraphs that we looked at included clause 16 in Appendix 1; that's obviously correct, isn't it?‑‑‑The new clause, the 27.9, 8.4 and 25.14 do not include numbers, as they were already in the Appendix 1 of the agreement.

PN602

And you agree, don't you, that the numbers, clauses 27.9, 8.4 and 20.4, none of those are clause 16 of Appendix 1; that's correct, isn't it?‑‑‑That is correct. Those clauses are not 16.1, as 16.1 were already existing.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN603

I put it to you that you never negotiated on having 11 workers in the potato packing team during negotiations between the AMWU and McCain for the 2019 enterprise agreement?‑‑‑I disagree with that assertion. I clearly remember discussing the man level numbers in all areas of (indistinct).

PN604

I put it to you that you did not attend every session of the negotiations between the AMWU and McCain for the 2019 enterprise agreement?‑‑‑I reject that assertion. I do recall leaving early once, but I did attend all negotiations.

PN605

In paragraph 14 of your second witness statement you refer to some sort of negotiations on 11 April 2019, don't you?‑‑‑I do.

PN606

In paragraph 15 you refer to 'all parties and all participants', don't you?‑‑‑Sorry, what paragraph was that, sorry?

PN607

In paragraph 15, you refer to 'all parties and all participants?'---That's correct.

PN608

But you don't say in your statement who the parties or participants were, do you?‑‑‑No, I don't.

PN609

In paragraphs 14 and 15 of your second witness statement, you say that the AMWU put together this handwritten list of issues, correct?‑‑‑Cribb C put up the handwritten issues as part of the process.

PN610

And you say that Cribb C, as she then was, took a photo of this list of issues and distributed it to all the participants, correct?‑‑‑As was her want, and as she did with each and every meeting.

PN611

But you acknowledge, don't you, that there's nothing in the photos that you've provided that are the first exhibit to your second statement, those photos – there's nothing in those photos that show that they're from Cribb C?‑‑‑Cribb C wrote – continuously wrote on butchers paper throughout negotiations, took photographs of those written notes, and sent them to all parties.

PN612

You haven't answered the question that I've asked you, so I'll ask it again. Those photos, when somebody looks at them, looking at those photos, there's nothing in those photos that show that the photos are from Cribb C; that's correct, isn't it?‑‑‑If I can just follow with those photos – so I'm guessing that's RK1, is that correct?

PN613

These - - -?‑‑‑Yes, so (indistinct).

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN614

Can you see them as I'm scrolling on the screen? Sorry, I should say, if you want the exhibit number, the exhibit page starts at 103 and then, you're correct, the photos start at 105?‑‑‑Yes. It is my (indistinct) photos taken by Cribb C and forwarded to all parties.

PN615

I just ask the question one more time, because you're not answering the question that I'm asking. If somebody looks at those photos, there is nothing in those photos that show that they are from Cribb C, correct?‑‑‑The email's from Cribb C. I'm not sure if that – that doesn't appear to have been entered in evidence, but the actual email that was forwarded with those photographs was from Cribb C.

PN616

But you haven't entered that email into evidence, have you?‑‑‑I haven't, no. I've entered the context of the email from Cribb C.

PN617

You've provided no documentary or visual evidence to this Commission to show when these photos were sent, have you?‑‑‑Once again, the email containing these photographs is dated and forwarded from Cribb C, but there's nothing that says that in that photograph, except for the date of course in the top corner.

PN618

You've provided no documentary or visual evidence to this Commission to show who these photos were sent to, have you?‑‑‑I have not included the – in the evidence there does appear to be the original email that had this attachment with these photos.

PN619

You've provided no documentary or visual evidence that shows who wrote these lists, have you?‑‑‑No, it doesn't say written by Cribb C; I'll agree with that.

PN620

You haven't provided any evidence that anyone from McCain ever saw these photos, have you?‑‑‑I believe the email that these photographs were contained in the attachment to - went to Brian McCain and to the other parties of McCain who were in attendance.

PN621

But you haven't provided that email, have you?‑‑‑No, that doesn't seem to have been entered into evidence - the actual email doesn't seem to have been entered into evidence.

PN622

MR WAINWRIGHT: Deputy President, if I could at this point say, I have (indistinct) - - -

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN623

MS STOJANOVA: I'm sorry, is this an objection, because I am cross‑examining this witness?

PN624

MR WAINWRIGHT: I understand. I'm seeking to assist the Commission.

PN625

MS STOJANOVA: You can do that - - -

PN626

MR WAINWRIGHT: Deputy President - - -

PN627

MS STOJANOVA: Deputy President, this is improper. I am cross‑examining this witness. I am entitled to do so uninterrupted, unless the applicant has an objection to make to my questioning. If the applicant has submissions that they wish to make, then they can do that in their time.

PN628

THE DEPUTY PRESIDENT: All right. We'll continue with the cross‑examination.

PN629

MR WAINWRIGHT: I have an objection first.

PN630

THE DEPUTY PRESIDENT: What's the objection?

PN631

MR WAINWRIGHT: The objection is that my friend has asked the witness questions about whether or not people at McCain's have seen the email. He said that the covering email that - - -

PN632

MS STOJANOVA: I did not. That was not the question that I asked.

PN633

THE DEPUTY PRESIDENT: Look, that's not an objection. There's no objection to the question. The questions were what the questions were. It sounds as though, Mr Wainwright, you want to tackle the email that may have accompanied these or not. That can be done elsewhere at a different time, and we'll move on with the cross‑examination. Thank you.

PN634

MR WAINWRIGHT: Thank you.

PN635

MS STOJANOVA: Mr Kenna, we're now looking at page 105 of the court book. I'm sharing my screen, but you can also go to page 105 of your court book in front of you, if that's what you want to do?‑‑‑Yes, I'm on 105. Thank you.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN636

Let's look at item number 3, and I'm going to move my mouse over parts of item number 3 and if you can see that that's fine; if not, you can just follow your text with your eyes. We start with an opening asterisk and the words, 'Key issue', and then a closing asterisk in blue ink, correct?‑‑‑Correct.

PN637

Then in black ink we have the words, 'Set manning levels for each area', correct?‑‑‑That is correct.

PN638

And then in blue ink, we have an opening bracket, then in capital letters the words, '(Safe Manning Levels)', and then a closing bracket, correct?‑‑‑That is correct.

PN639

We established earlier in your cross-examination, Mr Kenna, that when the union wrote, 'Set manning levels for each area', the union meant safety changes, isn't that right?‑‑‑No. Once again, the original log was 'Set manning levels in each area.' That was the original claim. Through the IVB process, as you can see at the top of these photographs, it says, 'First tier issues', the way the IVB process works is each of the claims was split into categories, whether they were first, second or third tier issues. Then they were also spoken about as to the underlying clauses. On this day it would seem that, once again, it was still a key issue for membership, and at the end, '(Safe Manning Levels)' was obviously written by the Commissioner, and I believe the company was to respond to the levels of manning.

PN640

I put it to you, Mr Kenna, that earlier you said that when the union wrote, 'Set manning levels for each area', the union meant safety changes. What do you say to that?‑‑‑Once again I'll answer the same way as before; the original log of claims and the wording in the original log of claims changed during the IVB process. There was never consideration from the union or the membership that we change the numbers of the manning levels, as they are set, structured and had been previously negotiated. The three safety clauses that came out of the set manning levels claim were through the IVB process. They wouldn't have come about in any other process, because the IVB makes both parties look at the underlying clauses and the clauses of each claim. Those identified three key reasons why there was unsafe work in the factory.

PN641

Mr Kenna, I put it to you just now that when – I've put it to you a couple of times – that when the union wrote, 'Set manning levels for each area', the union meant safety changes. You've responded to that. Keep that puttage in mind, that point, and with that point I also put to you now that the words here, 'Set manning levels for each area', also meant safety changes. What do you say to that – and sorry, when I say 'here' I mean looking at page 105 of the court book and your exhibit?‑‑‑You said in relation to 105. You mean the first exhibit?

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN642

Yes, I'll say it again, just so it's clear for you what you're being asked about. So I put to you, I've put to you a few times, that when the union wrote, 'Set manning levels for each area', the union meant safety changes. Now we're looking at your exhibit, the list of issues that you've referred to in your exhibits. We see the words, 'Set manning levels', and I put to you again that that wording, 'Set manning levels for each area', also means safety changes. What do you say to that?‑‑‑No, I don't believe it means that. The reason there's 'Key issue' written at the start is because 'Set manning levels for each area' was a key issue. What came out of that, in brackets, is '(Safe Manning Levels)' and the structure would barely tackle safe procedures in the workplace.

PN643

I put it to you, Mr Kenna, looking at your exhibit, this list, page 105, that the union is at pains to express that 'Set manning levels for each area' means safe manning levels and that that is why the union has 'Safe Manning Levels' in capital letters next to 'Set manning levels for each area.' What do you say to that?‑‑‑I don't agree with that assessment. It is my belief that the '(Safe Manning Levels)' in capitals, in brackets, was referring to what came out of the discussions about the claim.

PN644

So what came out of the discussions about 'Set manning levels for each area' was that there would be safe manning levels; that's what you just said, Mr Kenna?‑‑‑No, that's not what I just said. I believe the 'safe manning levels' came out of the discussion, which meant there was extra claims. So what you would in fact usually write by a log of claims is different under the IVB process, so what we have there is the full letter of the discussion. As you can see it started at point 3. It says, 'Key issue: Set manning levels for each area.' The brackets, '(Safe Manning Levels)' were referring to discussions that began about changes needed to the EBA to ensure safety on site.

PN645

Mr Kenna, with the answer that you've just given, I put it to you that there is nothing in your witness statement or any of your exhibits that demonstrates or records anything that you just said. What do you say to that?‑‑‑I disagree, considering the words, 'Set manning levels in all areas', is clearly written in that photograph.

PN646

I put it to you that 'Safe manning levels' was the accurate way to describe the meaning of the text, 'Set manning levels for each area', isn't that right?‑‑‑If it was the correct way to write 'Safe' – if 'Safe manning levels' is the correct way to write 'Set manning levels in each area', point 3 would read, 'Safe manning levels', not 'Set manning levels in each area.' So I disagree with your premise.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN647

I put it to you that the union wanted to be sure that everyone understood that the union was asking for safe manning levels when the union used the words, 'Set manning levels', isn't that right?‑‑‑That's incorrect, and the English is very clear to make sure that that was understood: 'Set manning levels' means 'Set manning levels.'

PN648

I put it to you that this exhibit that you provided to the Commission states that the AMWU were saying that it was a key issue for the union to have safe manning levels, isn't that right?‑‑‑I disagree with your assessment again. As I have testified, the interest‑based bargaining process changed the way the first, second and third tier issues looked into a different way than what you usually write in a log. 'Set manning levels in each area' was the beginning of the claim. As you can see at point 3, it still says 'Key issue.' The key issue was to set manning levels in each area, which we negotiated, and the union subsequently negotiated a couple of times, and the safe manning levels was something that was borne out about the root cause of the issues on site. So one of the root causes was there was a restructure by McCain where they introduced a shift manager and supervisors that used to be called leading hands. We developed a system to make sure that salaried personnel didn't touch the machines. It was unsafe for salaried personnel to touch machines. That was one part of what came out of discussions. The other part was the issue in the freezers and what had been an attempt by the company in (indistinct), and the third part was what to do if a breakdown, absenteeism, and any trials.

PN649

I put it to you, Mr Kenna, that as far as the (indistinct) of your, you know, lengthy answer goes, you've provided no evidence, no records, no documentation to demonstrate any of that to this Commission. What do you say to that?‑‑‑I completely disagree. I believe the document speaks for itself. I believe your interpretation of it is incorrect. As explained to the Commission, the IVB process is such, and I'm hopeful that Clancy DP is familiar with the IVB system, will understand that there are different things that come out in the negotiations under IVB that would be done under a normal negotiation.

PN650

Mr Kenna, in paragraph 20 of your second witness statement, and I might leave you to go to that because I'm going to come back to this paragraph 105 in a moment - in paragraph 20 of your second witness statement you said the words, 'Safe manning levels', in this exhibit that we're looking at, 'were just an associated part of the claim to the set manning levels in each area', correct?‑‑‑That is what it says, and as I've testified, yes, it was associated to the - - -

PN651

Okay. Okay, that's what it says. And then in paragraphs 20 to 24, you say that the use of black ink when writing out the words, 'Safe manning levels', was part of the methodology used in this butcher paper list, correct?‑‑‑That's correct.

PN652

And it's a methodology that you say demonstrates that safe manning levels were an associated issue to set manning levels, correct?‑‑‑Correct.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN653

But there's nothing in this photo exhibit that says that there was such a methodology, is there?‑‑‑There is nothing in this photo that has written out a process about the list, but my evidence is that is the process that was followed by all parties.

PN654

There's no key or methodology section in this photo, is there?‑‑‑No, there is not.

PN655

The list looks like it's written on butcher paper and that it has squares and triangles and smudges drawn on it, correct?‑‑‑It wasn't on butcher paper. That appears to be on a whiteboard, a whiteboard in the (indistinct) boardroom. The reason that there is other writing in the background is someone in a (indistinct) had previously used that whiteboard and accidentally used permanent marker.

PN656

This doesn't appear to be a document that follows a scribe methodology, Mr Kenna. What do you say to that?‑‑‑If I can get you to explain that, please?

PN657

This doesn't look to be a document that has a methodology for the different components of the text that are represented in this document?‑‑‑No, I agree that that photo does not show that.

PN658

The words, 'Safe Manning Levels', are in capital letters, aren't they?‑‑‑Yes, they are.

PN659

So your blue ink methodology explanation doesn't explain why the words, 'safe manning levels', were represented differently to the other blue ink text via capital letters, does it?‑‑‑Yes, I believe it does.

PN660

I put it to you that even if there was some sort of blue ink methodology to this exhibit, it doesn't apply to the words, 'Safe Manning Levels.' What do you say to that?‑‑‑Only (indistinct).

PN661

I put it to you that the words, 'Safe Manning Levels' were not meant to be associated with anything else because they were dominant words, correct?‑‑‑I'm not sure why the Commissioner wrote in capital letters. I can't remember, but she wrote in capital letter. It may have been a (indistinct) thing. As you can see, there's seven points on the others. Maybe that's why she wrote it in the smaller script.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN662

I put it to you that the meaning of 'Safe Manning Levels' was dominant, not associated to the words, 'Set manning levels for each area', and that's why 'Safe Manning Levels' is in capital letters?‑‑‑I disagree with that.

PN663

We're going to go to page – actually I have a final question for this exhibit. 'First tier issues' is a critical bit of text on that page, isn't it, Mr Kenna; the fact that that's the title?‑‑‑It seems to be, yes.

PN664

As a heading, the text, 'Agreement in principle by 30 June 2019', that's of critical importance, isn't it, the timeline to negotiate this document by?‑‑‑That seems to be a next step.

PN665

And I put it to you that all of the most critical text is written in capital letters on that page - the heading, the agreement in principle date, and the fact that it is safe manning levels that is the key issue for the AMWU?‑‑‑Once again I disagree with you, the assumption. As testified, there were three different markers from three instructor. The agreement in principle was a next step and in progress. The blue writing is – I think it's written in blue, (indistinct) and written in (indistinct).

PN666

Mr Kenna - - -?‑‑‑Sorry, (indistinct).

PN667

Okay. Mr Kenna, we're going to go to page 113 of the court book, which I can get up for you, if you like. On page 113 of the court book, there's an email from Leigh Aspland to Brian McCain and cc'd in to other people, including you, Mr Kenna. Can you see that page?‑‑‑Yes, I can.

PN668

And you can see that email from Leigh Aspland to Brian McCain cc'd in to other people, including you; you know what I'm talking about?‑‑‑I can see that, yes.

PN669

It's dated 26 April 2019, correct?‑‑‑That's correct.

PN670

And Brian McCain responded to this email, didn't he?‑‑‑I'm not sure. I don't recall.

PN671

Mr Kenna, what I'm going to do, Brian McCain responded to that email. He's included it as the fifth exhibit to a second witness statement that he has filed – he's included his response to that email. It's not in the court book for you, Mr Kenna. It's outside of the court book, so I'm sharing it on the screen, if you're able to see that. I appreciate the text might be small for you?‑‑‑I'm quite happy to stand up - - -

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN672

Yes, you can stand.

PN673

THE DEPUTY PRESIDENT: Yes.

PN674

MS STOJANOVA: You do that if you're comfortable, stand up and come to the screen.

PN675

THE DEPUTY PRESIDENT: The witness might also have a paper copy if it's in the bundle but not in the court book.

PN676

MS STOJANOVA: Mr Kenna, if you have a copy you can look at that, or you can just look at the screen as you're doing?‑‑‑I'm happy to do it as I'm doing now.

PN677

You can see this email, the time to this email, 12.15 pm?‑‑‑Yes.

PN678

It's the same date as Leigh Aspland's email, 26 April?‑‑‑That seems to be correct.

PN679

So Brian is writing back to Leigh Aspland on the same day?‑‑‑Yes, that appears to be the case.

PN680

If you look at the cc box, Brian McCain has cc'd in everybody that Leigh Aspland had emailed and others, isn't that right?‑‑‑That looks correct, yes.

PN681

And you're included in that email, Mr Kenna, the one we're looking at?‑‑‑Yes, I believe my personal email is on there, yes.

PN682

And then the text in the body of the email, Brian McCain is saying:

PN683

Thanks, Leigh. Can you please provide me with specific information, names and dates, for example, so that I can follow up with specific individuals? Very hard to follow this up with very general information, as I have said before.

PN684

Can you see those words?‑‑‑Yes, I can.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN685

To your knowledge, Leigh Aspland never responded to Brian McCain's email, did he?‑‑‑I don't know if he responded in email, but I know we had separate meetings about this particular issue.

PN686

To your knowledge, Leigh Aspland never provided Brian McCain with the details that Brian McCain had requested?‑‑‑I believe Leigh Aspland would have told Mr McCain in person.

PN687

I remind you, Mr Kenna, that you're giving sworn evidence and your evidence must be truthful. So do you know, or do you thin, that that might have happened, and actually you don't know what Leigh Aspland did?‑‑‑I'm not going to say that I know. What I'll say is I recall having meetings about this specific issue.

PN688

Okay. So the answer to my question is you don't know?‑‑‑That's what I say. I don't recall if there was any specifically for this day, whether he gave evidence specifically to what he was referring to in the email on this day, but I do recall meeting with Mr McCain and with HR during our negotiations and during meetings we had bi‑monthly(?). That's - - -

PN689

Mr Kenna, just try to focus your answers as much as you can to the questions that you're being asked. In relation to this email, you didn't respond to this email, did you?‑‑‑I did not respond to this email, no.

PN690

To your knowledge, no other AMWU representative cc'd into this email responded to it, did they?‑‑‑I don't believe anyone responded in relation to that.

PN691

And I put it to you that, to your knowledge, no one, including yourself, followed up, because the content of this email was not on the negotiating agenda for the 2018 enterprise agreement, isn't that right, Mr Kenna?‑‑‑I believe that's false. It was on the negotiating – it was part of the negotiating (indistinct), and would have been addressed during those negotiations.

PN692

But you've provided no evidence that the contents of Leigh Aspland's email was on the negotiating agenda, have you?‑‑‑This particular email, no, because there's no evidence linked to that email that I can point to.

PN693

I put it to you that there's nothing in that email from Leigh Aspland that relates to the content of the negotiations for the 2019 enterprise agreement, isn't that right?‑‑‑I disagree.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN694

But you've provided no evidence otherwise, have you?‑‑‑There is no written evidence that I can supply, no.

PN695

In your second exhibit, which is – I mean this is Brian's exhibit, but – I mean I can go to your exhibit, but – we'll just go to your exhibit in fairness to you, or you can go to your exhibit. In your – we'll go to - - -

PN696

THE DEPUTY PRESIDENT: Are we at page 113, are we, of the court book?

PN697

MS STOJANOVA: Actually I've moved on, Deputy President. I now want to speak about paragraph 30 of Mr Kenna's second witness statement. Mr Kenna, if you like, I'll go to that page for you?‑‑‑Is that on page 101?

PN698

THE DEPUTY PRESIDENT: Yes.

PN699

MS STOJANOVA: Yes, and I'll just share my screen. Mr Kenna, in paragraph 30 of your second witness statement, you said, 'We have been arguing that supervisors were hands‑on doing the work of the operators.' That's what you said?‑‑‑Correct.

PN700

But Leigh Aspland is just speaking for himself in his email to Brian McCain, isn't he?‑‑‑I believe he's speaking on behalf of his work group.

PN701

Leigh Aspland does not say that he is officially raising a dispute on behalf of the AMWU in his email, does he?‑‑‑No, he doesn't.

PN702

You've provided no evidence that AMWU references to supervisors doing the work of operators was a union claim during negotiations for the 2019 enterprise agreement, have you?‑‑‑As the clause was written specifically to address that, yes, I believe his evidence that that was in the claim beforehand.

PN703

I put it to you that you have provided no evidence to this Commission that the AMWU raised as a claim supervisors doing the work of operators, as a union claim during negotiations for the 2019 enterprise agreement. What do you say to that?‑‑‑I say it wasn't on the 2019 original log of claims, but through the IVB process it became a claim, was addressed, and a clause was written.

PN704

I put it to you you've provided no evidence of that either?‑‑‑Other than the fact it was in the agreement.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN705

That's not an answer to my question, but I'm content with you not answering my question. On page 117 of the court book, there's another email from Leigh Aspland to Brian McCain and cc'd into other people including you, Mr Kenna, that's right, isn't it?‑‑‑117?

PN706

Yes, and it's on the screen in front of you?‑‑‑Yes, I seem to be cc'd in.

PN707

And Mr Aspland cc'd in other AMWU representatives, including Ms McCarthy, that's correct?‑‑‑It would appear so, yes.

PN708

The email is dated 30 April 2019, isn't that right?‑‑‑That's correct.

PN709

Leigh Aspland asks to speak to Brian McCain, doesn't he?‑‑‑if you give me a chance to have a read of the email I'll confirm that. 'According to the (indistinct) I'd also like to talk about the feedback I got.'

PN710

Yes. He's asking to speak to Brian McCain, isn't he?‑‑‑It would appear that he wishes to bring it up, yes.

PN711

So Leigh wants a meeting between Leigh Aspland and Brian McCain, correct?‑‑‑It would appear so.

PN712

Leigh Aspland says, 'Brian, I was thinking we could put a half hour aside on our next EBA day to discuss this further', correct?‑‑‑That's what the email appears to say, yes.

PN713

Now, that's very different to the way that you describe what Leigh Aspland said in your second witness statement, isn't it, Mr Kenna?‑‑‑I don't believe so, no.

PN714

Let's go to paragraph 35 of your second witness statement where you are describing the email that we just looked at. You say, 'Mr Aspland communicated that we should put time aside in the next negotiating session specifically for this issue.' That's what you said in your witness statement, isn't it, Mr Kenna?‑‑‑Correct.

PN715

Leigh Aspland did not say anything in that email about adding that topic, the contents of his email, as a union claim for negotiations for the 2019 enterprise agreement, did he?‑‑‑I don't really understand how you're getting to that assumption, but the meeting was to be held inside of negotiations.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN716

You agreed, didn't you, just a moment ago that Leigh Aspland wanted a meeting between Leigh Aspland and Brian McCain; you agreed to that a moment ago, didn't you?‑‑‑In his email (indistinct)?

PN717

Yes?‑‑‑Leigh forgot me, and (indistinct) Brian McCain on his own. So directed it would be done at negotiations – would be to ensure that there be more than one representative from the union there.

PN718

Mr Kenna, not a minute ago I put the question to you, the proposition, Leigh Aspland wanted a meeting between Leigh Aspland and Brian McCain, and you said yes. You said yes, didn't you?‑‑‑The email reads that way, yes. You can interpret it that way.

PN719

And you said yes, didn't you? That's what you said - - -?‑‑‑I agree - - -

PN720

- - - (indistinct)?‑‑‑I agree that that's what the email says. So we're very clear, I agree that that's how you could interpret the email, yes.

PN721

At paragraph 35 of your witness statement you say, 'Brian Aspland communicated that we should put time aside', but that's not consistent with your evidence that Leigh Aspland wanted to meet with Brian McCain alone?‑‑‑Once again, I do not believe that Leigh Aspland wanted to meet with Brian McCain alone. I (indistinct) that he may have (indistinct) as part of his email, but that wouldn't have been his intention to meet on his own, as that is not how any meeting is held within McCain.

PN722

I put it to you that paragraph 35 of your second witness statement misrepresents the words of the exhibit that you're referring to?‑‑‑I disagree.

PN723

I put it to you that the AMWU never actually set time aside to discuss the contents of Leigh Aspland's email with Brian McCain, isn't that right?‑‑‑I disagree.

PN724

To your knowledge, Ms McCarthy never replied to that email, did she?‑‑‑I don't believe she would, no.

PN725

And I'm referring to either email, Leigh Aspland's email or Brian McCain's reply email, to your knowledge?‑‑‑Not that I'm aware, no.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN726

And you never followed up on either of those emails either, did you, Mr Kenna?‑‑‑No, I didn't.

PN727

To your knowledge, no other AMWU representative cc'd into those emails followed up either, did they?‑‑‑I don't believe they would have needed to, so no.

PN728

I put it to you that no one, including yourself, to your knowledge, followed up, because the content of Leigh Aspland's email on 30 April 2019 was not on the negotiating agenda for the 2019 enterprise agreement, isn't that right?‑‑‑I disagree with that assertion, as it was part of the IVB discussions. Brian asked for specific circumstances to be identified, which he was brought forward. There was more than one person brought forward – myself, Mr Paul Lavery and Mr Leigh Aspland, and Ms Michelle Owen also provided evidence that supervisors (indistinct).

PN729

But you've provided no evidence besides your statements now of what happened in those discussions, have you?‑‑‑I provided no written evidence, so I'll agree with that.

PN730

I put it to you the fact that Leigh Aspland sent this email demonstrates that the content of his email was not on the agenda for the 2019 enterprise agreement, isn't that right?‑‑‑I disagree with that assertion. Mr McCain had asked for specific – so any time that it happened for us to call Leigh and specific cases to be pointed towards him so he could resolve it. He then also presented a memorandum to all supervisors to stop touching the machines. This is part of the basis that we came up with a list of genuine reasons that a staff member could touch a machine.

PN731

Mr Kenna, I put it to you that nothing in your response answers the question or goes to the point that the fact that Leigh Aspland sent his email demonstrates that the content of his email was not on the negotiating agenda for the 2019 enterprise agreement. What do you say to that?‑‑‑I disagree.

PN732

I put it to you that Leigh Aspland sent his email because none of the other AMWU members had picked up the issue on the agenda for the 2019 enterprise agreement, isn't that right?‑‑‑I disagree.

PN733

And to your knowledge, after Leigh Aspland sent that email no one replied to him, isn't that right?‑‑‑To my knowledge no one replied in email form, that's correct.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN734

And you've provided no evidence that anybody replied in any other form, have you?‑‑‑Other than the fact that there were clauses that were formed around the base issue.

PN735

So you've provided no evidence, have you, that the matter was picked up in any negotiations for the 2019 enterprise agreement, have you?‑‑‑I have provided (indistinct) subsequent evidence to the enterprise agreement, which is signed.

PN736

You've provided no evidence - - -?‑‑‑No subsequent evidence. I'll agree with that.

PN737

You provided no evidence that the content of Leigh Aspland's emails was the subject of negotiations for the 2019 enterprise agreement?‑‑‑There's no subsequent documentation - - -

PN738

Subsequent to what?‑‑‑To the enterprise agreement which Aspland(?) addresses this exact issue.

PN739

So no evidence about negotiations. And after Leigh Aspland sent his email, no one replied to him to your knowledge, isn't that right?‑‑‑That's correct, because it - - -

PN740

After Leigh Aspland sent the email the issue still didn't get picked up for the agenda for the negotiations, isn't that right?‑‑‑I disagree with that assertion.

PN741

I put it to you the email is not evidence that there was a common understanding between McCain and the AMWU that McCain would revert the crewing levels in clause 16 of Appendix 1 of the 2019 enterprise agreement upon the commencement of the 2019 enterprise agreement. What do you say to that?‑‑‑Sorry, just so I understand the question - - -

PN742

I'll break it down, because it was quite a long question. I put it to you that that email from Leigh Aspland is not evidence that there was a common understanding between McCain and the AMWU in relation to the disputed clause 16 of Appendix 1 of the 2019 enterprise agreement. What do you say to that?‑‑‑I agree, but I don't believe that that's what my evidence says either. I believe my evidence says that it points to the fact that it was a hot button issue, a really hot issue in saying that (indistinct) could take back.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN743

I put it to you that the email is not evidence that there was a common understanding between McCain and AMWU that McCain would revert crewing levels in the potato packing area back to the numbers listed in clause 16.1. What do you say to that?‑‑‑I agree that the email does not say that, but - - -

PN744

Okay. I put it to you there were no references to crewing levels by the AMWU that ever led to the AMWU raising specific crewing levels as a claim for the 2019 enterprise agreement, isn't that right?‑‑‑Completely incorrect. The original plan was set manning levels in each area.

PN745

None of Mr Aspland's references to crewing levels were picked up by any other AMWU member, isn't that right?‑‑‑I believe that's incorrect.

PN746

None of Mr Aspland's references were discussed in relation to the drafting of the proposed new 2019 enterprise agreement, isn't that right?‑‑‑That's also incorrect.

PN747

None of Mr Aspland's references were ever discussed in relation to clause 16 of Appendix 1 of the 2019 enterprise agreement, isn't that right?‑‑‑Once again I believe you're incorrect.

PN748

Mr Aspland was part of the negotiations for the 2019 enterprise agreement, but his role was limited, wasn't it, Mr Kenna?‑‑‑I will say that's incorrect.

PN749

In paragraph 36 of your second statement, which is on the screen in front of you, you said:

PN750

I was clear in my mind that the agreement was delivering a crewing level of 11 in potato packing.

PN751

Correct?‑‑‑That's correct.

PN752

Clear in your mind, correct?‑‑‑Clear on paper, 11 people in the attachment.

PN753

Please answer the question that I'm asking you. You said it was 'clear in my mind', clear in your mind, correct?‑‑‑Clear in my mind, as I can read numbers.

PN754

Paragraph 36 says nothing of what McCain thought, isn't that true?‑‑‑Paragraph 36 of my statement does not.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN755

Paragraph 36 says nothing of any common intention between the AMWU and McCain, does it?‑‑‑I agree it has to, as it's a signed agreement, there were - - -

PN756

Please just answer the question that I'm asking you. Paragraph 36 in your second witness statement says nothing of any common intention between the AMWU and McCain, does it?‑‑‑Other than the word 'agreement', 'agreement' being the key word - 'agreement.' That would confer agreement between both bargaining parties, not one bargaining party; both bargaining parties, and agreement.

PN757

I put it to you that 36 of your second witness statement does not say anything about any common intention between the AMWU and McCain. What do you say to that?‑‑‑I disagree.

PN758

I put it to you that during negotiations for the 2019 enterprise agreement you made it clear that you did not want to include specific numbers of employees for each area in that agreement. What do you say?‑‑‑I believe that's false.

PN759

I put it to you that you said words to the effect that you did not believe it would work to set manning levels in each area because McCain could change those set crewing levels through the consultation and change process in clause 16.2. What do you say to that?‑‑‑Once again I disagree.

PN760

I put it to you that you said that, that you referred to McCain's ability to change those set manning levels in clause 16.2. I put it to you that you said that because McCain did change the original planned crewing levels in the 2016 enterprise agreement, isn't that right?‑‑‑That's correct. They did change the numbers, and then it was negotiated back by agreement.

PN761

It wasn't negotiated back by agreement, but even if it was, you acknowledge, don't you, that McCain could just change those numbers again, like they did before? That's the truth, isn't it?‑‑‑They could attempt to change numbers with consultation with both the union and health and safety representatives.

PN762

In the same way that they changed them as part of the 2017 consultation and change process, correct?‑‑‑Yes, that's correct.

PN763

And you weren't satisfied with what the crewing levels were after the 2017 consultation and change process, were you?‑‑‑No, I wasn't. That's why we negotiated numbers into 2019.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN764

So you didn't think there was any point in requiring McCain to go back to the original crewing levels when they could just change them again like they did in 2017; that's what you thought, isn't it?‑‑‑I disagree with that assertion.

PN765

I put it to you that you said words to the effect that the AMWU preferred to focus on text in the enterprise agreement that could ensure that crewing levels were safe, but without setting specific numbers of employees for specific areas. That's what you said, isn't it?‑‑‑I believe that's incorrect.

PN766

I put it to you that that is why you drafted the draft safe crewing levels clause, isn't that right?‑‑‑No, I disagree.

PN767

The safe crewing levels clause, which became clause 27.9 of the 2019 enterprise agreement?‑‑‑That clause was drafted by myself, I agree with that, and the intent of that clause, as someone who drafted that clause, was to make sure that any temporary breaks in our normal procedure could have a remedy.

PN768

And you said at paragraph 9:

PN769

I did also argue for safe crewing levels to prevent supervisors from doing operators' work in the additional cold breaks.

PN770

10:

PN771

These negotiations led to the inclusion of clause 27.9.

PN772

That's what you said in your statement, isn't it?‑‑‑That is correct. The IVB process, as testified – the IVB process caught out several core issues that were attached to manning levels and safety on site, and those were negotiated out.

PN773

And I put it to you, as I put it to you before, that you provided no evidence of what you have just said?‑‑‑I believe that there is evidence, based on the agreement that was signed by both parties.

PN774

I put it to you that you've produced no evidence that what you just said was part of negotiations for the 2019 enterprise agreement?‑‑‑I disagree, and my reason for disagreeing is, if it wasn't part of negotiations it would not have been included in the 2019, correct.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN775

Well, I put it to you it is not in the agreement - - -?‑‑‑(Indistinct) my understanding - - -

PN776

I put it to you that none of your evidence demonstrates a common understanding or intention between the negotiating parties for the 2019 enterprise agreement about the meaning of clause 16 in Appendix 1. What do you say to that?‑‑‑I disagree. The word 'agreement' lies (indistinct) both parties.

PN777

I put it to you that you provided no evidence that the AMWU ever discussed crewing levels in clause 16 of Appendix 1 during negotiations for the 2019 enterprise agreement?‑‑‑Once again I disagree, as there are crewing levels in (indistinct) in clause 16 (indistinct) of the 2019 agreement.

PN778

That wasn't the answer to the question that I asked, but I'll move on. I put it to you that you've provided no evidence to this Commission that the AMWU raised crewing levels in clause 16 of Appendix 1 as a claim during negotiations for the 2019 enterprise agreement?‑‑‑I disagree with that. The photograph and the log of claims both very clearly set manning levels being a claim for negotiation.

PN779

I put it to you that they're not?‑‑‑Once again I disagree. (Indistinct) you can get to that statement, as they are both key parts of negotiation and of the enterprise agreement.

PN780

We dealt with that earlier. I put it to you that the AMWU did not include in their list of claims an increase or change to crewing levels pursuant to clause 16 of Appendix 1 of the 2019 enterprise agreement. What do you say to that?‑‑‑I say once again you're incorrect. Set manning levels being set manning levels (indistinct).

PN781

I put it to you that the AMWU did not include in their list of claims a demand for a specific number of people to be employed in specific parts of the plant?‑‑‑Once again, I can't understand how you can put that to me, considering there are numbers in the certified agreement.

PN782

I put it to you that you have provided no evidence that the AMWU included in their list of claims a demand for a specific number of people to be employed in specific areas of the plant. What do you say to that?‑‑‑Once again I disagree with that assertion, as there are set numbers of crewing in the certified agreement.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN783

I put it to you that the negotiating parties for the 2019 enterprise agreement did not discuss or negotiate the specific number of employees employed in specific parts of the plant. What do you say to that?‑‑‑I disagree, and I wonder how the number would be in the certified agreement if it wasn't discussed.

PN784

I put it to you that the only change made to clause 16 of Appendix 1 of the 2019 enterprise agreement, compared to the 2016 enterprise agreement - so I put it to you that the only change to clause 16 of Appendix 1 of the 2019 enterprise agreement was to update the word, 'manning', to the word, 'crewing.' What do you say to that?‑‑‑I agree that's the only wording changed in that clause.

PN785

I put it to you that there was no – you might want me to take you to this clause, and that's fine – I put it to you that there was no agreement to change the definition of clause 1 of Appendix 1 of the 2019 enterprise agreement to mean anything other than the words stated in that clause. Do you want me to take you to that clause?‑‑‑Yes, please.

PN786

THE DEPUTY PRESIDENT: Page 296 of the court book.

PN787

MS STOJANOVA: Thank you, Deputy President?‑‑‑I'm there now, thank you.

PN788

I might just get it up, even though you do have it, because I just want to confirm that you're looking at the same parts that I'm looking at. Okay, so I'm about to share my screen with Mr Kenna. Mr Kenna, so you can see – on my screen or in the version of the enterprise agreement that you're looking at, we can see the title, 'Appendix 1 Seven day continuous shift arrangement?'---Yes, I can see that.

PN789

And then there's a line. You can see the line?‑‑‑Yes.

PN790

And the number 1?‑‑‑Yes.

PN791

And then it says the word, 'Title?'---Correct.

PN792

And then it has the words:

PN793

This agreement shall be known as the McCain Foods Ballarat Production Employees Seven Day Continuous Shift Roster Agreement 2014.

PN794

Can you see those words?‑‑‑That's correct. Yes, I can see that.

*** ROSS ANDREW KENNA XXN MS STOJANOVA

PN795

So there was no agreement to change the meaning of clause 1 to mean anything other than the words listed there:

PN796

This agreement shall be known as the McCain Foods Ballarat Production Employees Seven Day Continuous Shift Roster Agreement 2014.

PN797

That's right, isn't it?‑‑‑That's correct. That's what the (indistinct) was told, yes.

PN798

I put to you that there was no agreement to change the current crewing levels as they are in the potato packing area to revert back to the crewing levels listed in clause 16.1 of the 2019 enterprise agreement?‑‑‑I believe that's incorrect.

PN799

And just because there's been a movement from eight to nine in the potato packing area, for completion I put it to you that there was no agreement to change the crewing levels as they were prior the implementation of the 2019 enterprise agreement. There was no agreement to change those crewing levels as they were to revert back to the crewing levels listed in clause 16.1 of Appendix 1 of the 2019 enterprise agreement. What do you say to that?‑‑‑Once again I disagree with that assertion.

PN800

I have one final point to question you on, Mr Kenna. In your examination‑in‑chief, Mr Wainwright took you to page 73 of the court book and he asked you to look at a structure, and he asked you if that structure accords to the structure that you understood in that area before you left McCain in March 2021. Do you remember that?‑‑‑Yes, I do.

PN801

But you didn't give evidence about what the structure is today on 16 June 2022, did you?‑‑‑No.

PN802

That concludes my questioning for this witness, Deputy President.

PN803

THE DEPUTY PRESIDENT: Thank you. Mr Wainwright, anything in re‑examination?

PN804

MR WAINWRIGHT: Yes, please, Deputy President.

RE-EXAMINATION BY MR WAINWRIGHT [1.20 PM]

PN805

MR WAINWRIGHT: Mr Kenna, my friend asked you about the Aspland emails, so if I could ask you to turn to page 117 of the court book?‑‑‑Yes, I'm there now.

*** ROSS ANDREW KENNA RXN MR WAINWRIGHT

PN806

You can see the two paragraphs of the email?‑‑‑Yes.

PN807

And you can see that there are two different subjects being covered by Mr Aspland?‑‑‑Yes, I agree with that.

PN808

In your view, was Mr Aspland seeking two meetings with Mr McCain?‑‑‑No, I don't believe so.

PN809

And then you were asked about whether or not you negotiated about supervisors working on the machines. Do you recall that?‑‑‑Yes, I do.

PN810

I think your response was, and I quote: 'If it wasn't part of the negotiations it wouldn't have gone into the agreement.' Was that your evidence?‑‑‑Yes, it is.

PN811

Could I ask you to turn to page 259 of the court book?‑‑‑I'm there now.

PN812

Could I ask you to have a look at clause 8.4?‑‑‑Yes.

PN813

Was that inclusion in the EBA the direct result of your negotiation on supervisors touching machines?‑‑‑Yes, that's correct.

PN814

And you've been asked about this, so I'll ask you, in your view is that evidence that this issue was raised during negotiations?‑‑‑Yes. As I testified, it played out in the IVB process.

PN815

In your experience of negotiating enterprise agreements, do things arrive in enterprise agreements without negotiations?‑‑‑I've never seen that happen before, no.

PN816

Can I ask you to turn back to page 105?‑‑‑Yes, I'm back there now.

PN817

You were asked about the significance of the use of capital or cursive script?‑‑‑Yes, I was.

PN818

In your view, are first tier issues of a higher order than second tier issues?‑‑‑Yes, I believe that's the case.

*** ROSS ANDREW KENNA RXN MR WAINWRIGHT

PN819

Can you see the term, 'Second Tier Issues', there?‑‑‑I can.

PN820

Can you confirm for me - not that it needs confirming, but can you confirm for me that that's in capitals?‑‑‑Yes, it is.

PN821

In terms of your understanding of the term, 'Key issues', what do you understand that term to mean?‑‑‑It is my understanding that the key issue was still: set man levels for each area, as the (indistinct) - - -

PN822

A single issue?‑‑‑That's the key issue, I believe. That's how I interpret that.

PN823

Above all other issues, do you agree?‑‑‑Yes, it was a key issue, and it was something that (indistinct) were very, very – I guess my evidence says 'hot', but yes, very, very vocal about.

PN824

Is the term, 'key issue', capitalised?‑‑‑It doesn't appear to be, no.

PN825

You were also asked about how these photos came to be in evidence?‑‑‑Yes, I was.

PN826

I'm talking specifically about a suite of three photographs at RK1, you see those there?‑‑‑Yes, I do.

PN827

Do you recall emailing me those photographs?‑‑‑Yes, I do.

PN828

Do you recall emailing me those photographs by forwarding an email to me?‑‑‑Yes, I do.

PN829

Deputy President, I just want to indicate that I have emailed to your Chambers and to my friend an extract – I note – an extract from Anna Lee Cribb. I don't know if you're in receipt of that. I'm obviously aware that the witness doesn't have that. I'm sorry, Deputy President, I was asking you if you you're in receipt of that?

PN830

THE DEPUTY PRESIDENT: I'm just checking my inbox, and I'm not at the moment.

*** ROSS ANDREW KENNA RXN MR WAINWRIGHT

PN831

MR WAINWRIGHT: Sorry. Well, I'm not sure how much further I can take that then, Deputy President, without you having it or the witness having access to it.

PN832

THE DEPUTY PRESIDENT: Just a moment. I'm having a look at it now. Yes, I have that. Thank you.

PN833

MR WAINWRIGHT: Thank you, Deputy President. I suppose I'm at somewhat of a disadvantage being separate from the witness, and I'm really, I'd be putting to you, wondering how we should proceed in terms of asking the witness about this email.

PN834

THE DEPUTY PRESIDENT: You're suggesting that the witness doesn't have access to it?

PN835

MR WAINWRIGHT: He does not at the moment have access to it.

PN836

THE DEPUTY PRESIDENT: Okay. I'll ask my associate to share it on the screen then.

PN837

MR WAINWRIGHT: Thank you. Deputy President, it might be the easiest time to discuss the further progress this afternoon?

PN838

THE DEPUTY PRESIDENT: Yes, you have a meeting at – here we go, sorry, just a moment.

PN839

MR WAINWRIGHT: Thank you.

PN840

THE DEPUTY PRESIDENT: All right, here's the email that you have forwarded to my Chambers.

PN841

MR WAINWRIGHT: Mr Kenna, are you able to see any of those words?‑‑‑I'll have to get closer to it. Yes, I can see.

PN842

Thank you. So are you able to see that this is an email from Anna Lee Cribb on 12 April 2019?‑‑‑That's correct.

PN843

The subject being, 'Whiteboard photos and next conference's agenda?'---That's correct.

*** ROSS ANDREW KENNA RXN MR WAINWRIGHT

PN844

Do you see that you are one of the recipients?‑‑‑Yes, I am.

PN845

Did you forward to me the three photographs that are now contained in RK1, photographs provided to you in this email?‑‑‑Yes, that's correct.

PN846

Deputy President, I seek to have this document marked.

PN847

THE DEPUTY PRESIDENT: Ms Stojanova?

PN848

MS STOJANOVA: Mr Kenna, there are no photos being shown to you right now, are there?

PN849

THE WITNESS: Just a screenshot of an email.

PN850

MS STOJANOVA: The photos in your exhibit in your statement, they're not being shown to you, are they, on the screen?

PN851

THE WITNESS: On the screen, no.

PN852

MS STOJANOVA: Thank you, Deputy President.

PN853

THE DEPUTY PRESIDENT: All right. I'm going to mark the email of 12 April 2019 from Anna Lee Cribb to various recipients, including Mr Kenna, as exhibit A5.

EXHIBIT #A5 EMAIL FROM ANNA LEE CRIBB TO VARIOUS RECIPIENTS INCLUDING MR KENNA DATED 12/04/2019

PN854

MR WAINWRIGHT: Thank you, Deputy President. Mr Kenna, do you recall forwarding me this email?‑‑‑Sorry, what was that?

PN855

Do you recall forwarding me this email?‑‑‑Yes, I do.

PN856

Do you recall what the attachments were?‑‑‑Yes, I do.

PN857

Are the attachments now contained in RK1?‑‑‑Yes, they are.

*** ROSS ANDREW KENNA RXN MR WAINWRIGHT

PN858

Deputy President, that's all of the re-examination I wish to put to this witness.

PN859

THE DEPUTY PRESIDENT: Thank you. Mr Kenna, thank you for your attendance today and your evidence. You're excused from further attendance. You are welcome to remain as an observer to the hearing, but if you do so I just ask that you have your microphone on mute, but as I understand it, you're in an area that's going to be utilised by further witnesses, so that's a matter for you. All right?‑‑‑Thanks very much, Deputy President.

PN860

Thank you.

<THE WITNESS WITHDREW [1.30 PM]

PN861

THE DEPUTY PRESIDENT: Yes, Mr Wainwright, I understand you've got a meeting to get to now.

PN862

MR WAINWRIGHT: Yes.

PN863

THE DEPUTY PRESIDENT: Does that take you up for the rest of the day; is that the situation?

PN864

MR WAINWRIGHT: The meeting is scheduled to end at 4.30, Deputy President.

PN865

THE DEPUTY PRESIDENT: Well, Ms Stojanova, the witness evidence from Sue McInerney, to the best estimate that you can give, what would be your estimate of cross‑examination required on that?

PN866

MS STOJANOVA: Five minutes.

PN867

THE DEPUTY PRESIDENT: Okay. Could I suggest that we perhaps deal with Ms McInerney's evidence today, just so that that is at least complete?

PN868

MR WAINWRIGHT: Deputy President, the meeting I'm attending is not online. It's on the other side of town.

PN869

THE DEPUTY PRESIDENT: Okay.

*** ROSS ANDREW KENNA RXN MR WAINWRIGHT

PN870

MR WAINWRIGHT: I need to leave where I am - - -

PN871

THE DEPUTY PRESIDENT: I see. All right. So perhaps that's not feasible then.

PN872

MR WAINWRIGHT: No, it's not feasible. From what my friend says though, it might be better if we press on.

PN873

THE DEPUTY PRESIDENT: I see.

PN874

MR WAINWRIGHT: But in saying that, Deputy President, I would seek a five‑minute comfort break.

PN875

THE DEPUTY PRESIDENT: Yes, all right. Well, we'll press on. We'll complete Ms McInerney, then we'll adjourn for today.

PN876

MR WAINWRIGHT: Yes, but if we could have a few minutes in between. Thank you.

PN877

THE DEPUTY PRESIDENT: All right. We'll resume at 1.40 pm with Ms McInerney. Thank you.

SHORT ADJOURNMENT [1.31 PM]

RESUMED [1.41 PM]

PN878

THE DEPUTY PRESIDENT: Thank you. Ms McInerney, can you hear and see me, please.

PN879

MS McINERNEY: I certainly can.

PN880

THE DEPUTY PRESIDENT: Thank you. Ms McInerney, we're going to take your evidence now, so the first thing that will occur is my associate will take an affirmation from you. Thank you.

PN881

THE ASSOCIATE: Ms McInerney, please state your full name and address?

PN882

MS McINERNEY: Susan Kim McInerney of (address supplied).

<SUSAN KIM MCINERNEY, AFFIRMED [1.41 PM]

EXAMINATION-IN-CHIEF BY MR WAINWRIGHT [1.42 PM]

PN883

THE DEPUTY PRESIDENT: Thank you, Mr Wainwright.

PN884

MR WAINWRIGHT: Thank you, Deputy President. Ms McInerney, could you please state your name and your work address for the record?‑‑‑Susan Kim McInerney, and I work at McCain Foods in Ring Road, Wendouree.

PN885

Have you made a witness statement in this matter numbering 33 paragraphs and with one attachment?‑‑‑Yes, I have.

PN886

Do you have that statement and the court book with you?‑‑‑Yes, I do.

PN887

Are the contents of your witness statement and the attachment true and correct to the best of your knowledge?‑‑‑They're true.

PN888

Deputy President, I'd seek to have that statement marked.

PN889

THE DEPUTY PRESIDENT: Yes, thank you. Ms Stojanova, subject to cross‑examination, any issues?

PN890

MS STOJANOVA: No objections other than what have already been raised.

PN891

THE DEPUTY PRESIDENT: Thank you. I'll mark the witness statement of Sue McInerney, which appears in the court book at pages 63 to 65, with its one attachment and 33 paragraphs as exhibit A6.

EXHIBIT #A6 WITNESS STATEMENT OF SUSAN McINERNEY PLUS ONE ATTACHMENT

PN892

THE DEPUTY PRESIDENT: Thank you. Anything further, Mr Wainwright?

PN893

MR WAINWRIGHT: A few matters, Deputy President. Ms McInerney, how long have you worked at McCain's?‑‑‑I've been there approximately 16 years.

*** SUSAN KIM MCINERNEY XN MR WAINWRIGHT

PN894

Could you briefly outline for the Deputy President your work history over those 16 years?‑‑‑For the first four years I spent as a casual at McCain working across both potato and prepared food pizza site. In 2010 I received a position within the packing room on day shift. I went to - a couple of years after that I was made a senior controller, which is, for example, a leading hand, and then we moved to the 12‑hour rotating shifts, and during the restructure of 2017 I went back to the floor as a packing controller as the company restructured and used supervisors rather than senior controllers. I'm still there to this day.

PN895

Could I ask you to have a look at page 73 of the court book, please?‑‑‑Yes.

PN896

Can I ask you if that structure of the potato packing area outlined in that document, is that accurate as to the way the potato packing area operates today?‑‑‑Yes, it is.

PN897

Deputy President, I would seek to have what was SW1 marked.

PN898

THE DEPUTY PRESIDENT: Yes. Ms Stojanova, any comments on that?

PN899

MS STOJANOVA: Deputy President, I have one question. Can I - - -

PN900

THE DEPUTY PRESIDENT: Sorry, just on the attachment there in court book 73, any comments on that?

PN901

MS STOJANOVA: No objections other than what have been raised thus far.

PN902

THE DEPUTY PRESIDENT: All right. I'll mark the court book page 73, AMWU update, as exhibit A7.

EXHIBIT #A7 AMWU UPDATE AT COURT BOOK PAGE 73

PN903

Thank you. Mr Wainwright, anything further?

PN904

MR WAINWRIGHT: A few further things, Deputy President.

PN905

THE DEPUTY PRESIDENT: Yes.

PN906

MR WAINWRIGHT: Ms McInerney, was this the structure that was in place during 2021?‑‑‑No, it wasn't.

*** SUSAN KIM MCINERNEY XN MR WAINWRIGHT

PN907

What structure was in place in 2021?‑‑‑In 2021 it was essentially the same, except we had two operators in the grading room.

PN908

When to your knowledge did the two operators in the grading room change to one operator?‑‑‑It changed on the first shift of this year, which I believe was on or around 6 January. We came back to work, and there had been no consultation whatsoever; it was a changed environment and we only had one operator in that area.

PN909

Could I ask you to have a look at page 67 of the witness statement?‑‑‑Yes.

PN910

Could you tell the Deputy President what this document is?‑‑‑Yes. This was a company‑issued example of what breaks that we were supposed to take. Given that there are four people either on the case deck or on the packing floor, plus one in the grading room, these were the times that we were supposed to take breaks. So, for example, if I was person number one, my break would start at 8 am and finish at 8.20, and go through the rest of the people. Generally the grading room operator, which was number five, would get their break when they were relieved at 9.20, which always caused us an issue because they are supposed to have 10‑minute whole breaks, because of the environment had been changed and there's no facilitation for that within this structure.

PN911

You said there, 'the environment had been changed.' What did you mean by that?‑‑‑So previously the grading room had been at an ambient temperature. Usually it was probably around about 10 degrees. The temperature had been changed so that now it's a cooled environment and it is set at or around 4 degrees. The grading room operator also works in the choke room, so they fill up the chokes in the grading room at 4 degrees, and then they have to move back into an environment that's minus‑18 degrees.

PN912

To the best of your knowledge, when did that change come about?‑‑‑That change came about over the Christmas '21/'22 shutdown, so for us, as workers, it essentially was the first shift back this year.

PN913

In terms of page 67, the break schedule, can you point to where the cold breaks are there?‑‑‑No, I can't, because there is no, and never has been, any allowance for cold breaks for the grading room worker.

PN914

Those are all the questions I have, Deputy President.

*** SUSAN KIM MCINERNEY XN MR WAINWRIGHT

PN915

THE DEPUTY PRESIDENT: Thank you. Yes, Ms Stojanova. Ms McInerney, Ms Stojanova, who's the advocate for McCain's, will have some questions for you now. Thank you?‑‑‑Certainly.

CROSS-EXAMINATION BY MS STOJANOVA [1.49 PM]

PN916

MS STOJANOVA: Ms McInerney, is that how I pronounce your last name, McInerney?‑‑‑Yes, it is.

PN917

Ms McInerney, did you participate in the negotiations for the McCain Foods (Aust) Pty Ltd Ballarat Production Enterprise Agreement 2019 as a bargaining representative?‑‑‑No, I didn't.

PN918

Ms McInerney, is it your understanding that on 1 March 2017, and upon the commencement of the McCain Foods (Aust) Pty Ltd Ballarat Production Enterprise Agreement 2016, so upon the commencement of the 2016 enterprise agreement on 1 March 2017, that set crewing levels in the potato packing area of the potato products plant were 11 people; is that your understanding? And I know there's a lot of contents; I can say it again?‑‑‑Look, to be honest with you, I didn't actually have a defined number in the packing room at that time. We worked to what we did have, which was 11, and I, to be honest, didn't take any notice of the EBA. It's the EBA that we are currently on that concerns all of us on the floor, not necessarily what was in the 2016 EBA.

PN919

Ms McInerney, I'm not asking you about what the EBA said, and again, you might not know the answer to this, because we're talking about something that's happening a few years ago, so if you don't know you can just say you don't know. I'm not asking you about the enterprise agreement. I'm just asking, at the time that the 2016 enterprise agreement came into effect, which was 1 March 2017, I'm putting it to you that there were 11 people that were set by McCain working in the potato packing area of the potato products plant. Do you agree, do you know that - what's your response to that?‑‑‑So you're asking me how many were in the potato packing area in 2017, is that correct?

PN920

Yes. What were the set crewing levels – well, I'm putting to you that the set crewing levels in the potato packing area of the potato products plant at 1 March 2017, that the set crewing levels were 11 people. What do you say to that?‑‑‑No, what was in the EBA.

PN921

But I guess, you also don't know what was actually happening at that time. Don't worry about what was in the EBA. How many people were there?‑‑‑There were 10 people in 2017. In 2016 there were 12 people in the packing room.

*** SUSAN KIM MCINERNEY XXN MS STOJANOVA

PN922

Well, I put it to you then that on 1 March 2017 set crewing levels in the potato packing area of the potato products plant were 11 people. That's what I'm putting to you. How do you respond to that?‑‑‑We were actually at 10 people under a large amount of stress, because we had a whole room full of new equipment, and we kept asking for an extra person. We were just absolutely – you have to understand that in 2017 they did the upgrade, removed two people away from our area, we had a room full of new equipment and we really didn't have any idea how it all worked in together, and the company put us under a huge amount of stress and we kept asking for the 11th person.

PN923

So I put to you that there were 11 on 1 March 2017, and your answer is that you think there were 10, correct?‑‑‑That's correct.

PN924

I put it to you that on 30 August 2017 McCain undertook a consultation and change process in relation to investment capability pursuant to clause 16.2 of Appendix 1 of the 2019 enterprise agreement. Are you aware of that?‑‑‑No, I'm not.

PN925

I put it to you that in approximately January 2018, and as a result of that consultation and change process, set crewing levels in the potato packing area of the potato products plant was eight people. Are you aware of that?‑‑‑No, I wasn't, and we've never worked to eight people in that room as far as – every shift that I've worked on, we have never been able to work at eight people, and you honestly could not.

PN926

I think what you are saying, and correct me if I'm wrong, is that you don't know what the set crewing level numbers were for that area?‑‑‑I'm unaware - - -

PN927

(Indistinct) officially set by McCain?‑‑‑No. I am only aware of what they should have been in this particular EBA.

PN928

I put it to you that since 30 April 2021, the set crewing levels for all product lines in the potato packing area of the potato products plant are nine people?‑‑‑Incorrect. We had not run as nine people previous to 2021 – sorry, previous to this year, 2022. Last year, in 2021, we always had 10 people.

PN929

Ms McInerney, I'm not asking you how many people are working in that area at any given moment. I'm asking you about the set crewing levels, the levels that are officially set by McCain, and it sounds like you don't know what the set crewing levels are?‑‑‑I know the set crewing levels according to Appendix 1 are 11 people, and the company will not allow us to have that many. In fact, they reduced that.

*** SUSAN KIM MCINERNEY XXN MS STOJANOVA

PN930

I put it to you that since approximately January 2021 McCain regularly rostered an additional casual worker in the potato packing grading room, are you aware of that?‑‑‑Yes, and that made up our 10th person.

PN931

And I put it to you that since approximately 24 January 2022, McCain removed that additional casual worker, are you aware of that?‑‑‑Yes. They removed them right from the beginning of the shifts and – 6 January.

PN932

Deputy President, that concludes my questioning for this witness.

PN933

THE DEPUTY PRESIDENT: Thank you. Mr Wainwright, anything in re‑examination?

PN934

MR WAINWRIGHT: No, thank you, Deputy President.

PN935

THE DEPUTY PRESIDENT: Thank you. Ms McInerney, thank you for your evidence. You're excused from further attendance. You're welcome to remain as an observer, but if doing so, we just need the microphone off. Thank you?‑‑‑Thank you, Deputy President.

PN936

Thank you.

<THE WITNESS WITHDREW [1.57 PM]

PN937

THE DEPUTY PRESIDENT: Now, Mr Wainwright and Ms Stojanova, I don't want to hold you, Mr Wainwright, if you need to be somewhere else, but that I take it completes the evidence for the union, is that correct?

PN938

MR WAINWRIGHT: Yes, Deputy President. I am mindful that you haven't marked our submissions. I'm not sure what your approach is in relation to marking of submissions.

PN939

THE DEPUTY PRESIDENT: No, I don't intend to mark them.

PN940

MR WAINWRIGHT: And I do want to acknowledge then the typographical errors and the wording errors in the draft questions that I put together.

PN941

THE DEPUTY PRESIDENT: All right. Is that the extent of the evidentiary case then?

*** SUSAN KIM MCINERNEY XXN MS STOJANOVA

PN942

MR WAINWRIGHT: Yes.

PN943

THE DEPUTY PRESIDENT: All right.

PN944

MR WAINWRIGHT: So what I (indistinct) that we adjourn for the day and reconvene tomorrow at 10 o'clock, if that's appropriate.

PN945

THE DEPUTY PRESIDENT: Okay. In terms of tomorrow, we've got – Ms Stojanova, have you got a preferred order of witnesses, or does it not matter?

PN946

MS STOJANOVA: No, I do. With Brian McCain in Canada, it would be most convenient to have him first I believe, if I can him on as soon as possible at 10.

PN947

THE DEPUTY PRESIDENT: Okay. I've got a commitment, which is going to take me out of circulation from about 20 past 10 through to almost 11.45 I think, so with Mr McCain's time zone and commitments in mind, would an earlier start to the day's proceedings facilitate that?

PN948

MS STOJANOVA: Yes, it would.

PN949

THE DEPUTY PRESIDENT: Well, Mr Wainwright, to the extent you're able to indicate with Mr McCain's evidence, your cross‑examination of him, how long do you anticipate that might be?

PN950

MR WAINWRIGHT: I should think at least an hour, and I can indicate, Deputy President, that I'm available to start at 8 am or 9 am tomorrow.

PN951

THE DEPUTY PRESIDENT: Yes. I was going to suggest, as a matter of prudence, we might look at an earlier start. So if our aim was to be able to have Mr McCain's evidence completed by 20 past 10 I would have thought perhaps the most prudent thing to do would be, if it's convenient to everyone, to start at 8 am.

PN952

MS STOJANOVA: Yes, Deputy President.

PN953

THE DEPUTY PRESIDENT: And then we'll complete Mr McCain, and then perhaps resume, to be on the safe side, at midday then with Mr Carter and Ms Nebozuk, and then my intention would be to hear any final closing arguments, oral arguments, before the completion of the day. All right?

PN954

MS STOJANOVA: Yes. Deputy President, what is the chance that I could get a copy of today's hearing on transcript?

PN955

THE DEPUTY PRESIDENT: Well, if McCain wants to request same day transcript that can be requested. I'm not sure whether that needed to have been done in advance. I'd have to ask my associates on that. Certainly I wasn't going to be ordering same day. Just a moment, please. I'm not sure it's going to be possible to get same day transcript such that you can use it tomorrow. We can make inquiries, but it would seem to me that it might not be possible.

PN956

MS STOJANOVA: Okay, Deputy President.

PN957

THE DEPUTY PRESIDENT: Is there anything further before we adjourn for today?

PN958

MR WAINWRIGHT: No, thank you.

PN959

THE DEPUTY PRESIDENT: All right. We'll adjourn for today and we'll resume at 8 am tomorrow morning. Thank you very much.

PN960

MS STOJANOVA: May it please the Commission.

ADJOURNED UNTIL FRIDAY, 17 JUNE 2022 [2.02 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ANGELA MCCARTHY, AFFIRMED.................................................................. PN97

EXAMINATION-IN-CHIEF BY MR WAINWRIGHT...................................... PN97

EXHIBIT #A1 WITNESS STATEMENT OF ANGELA MCCARTHY DATED 07/04/2022 (COURT BOOK PAGE 30).................................................................................. PN106

EXHIBIT #A2 FURTHER WITNESS STATEMENT OF ANGELA MCCARTHY DATED 05/2022 (COURT BOOK PAGE 83).................................................................... PN111

CROSS-EXAMINATION BY MS STOJANOVA.............................................. PN147

RE-EXAMINATION BY MR WAINWRIGHT................................................. PN496

THE WITNESS WITHDREW............................................................................. PN525

ROSS ANDREW KENNA, AFFIRMED............................................................. PN531

EXAMINATION-IN-CHIEF BY MR WAINWRIGHT.................................... PN531

EXHIBIT #A3 WITNESS STATEMENT OF ROSS KENNA.......................... PN538

EXHIBIT #A4 FURTHER WITNESS STATEMENT OF ROSS KENNA AND THREE ATTACHMENTS.................................................................................................. PN544

CROSS-EXAMINATION BY MS STOJANOVA.............................................. PN585

RE-EXAMINATION BY MR WAINWRIGHT................................................. PN804

EXHIBIT #A5 EMAIL FROM ANNA LEE CRIBB TO VARIOUS RECIPIENTS INCLUDING MR KENNA DATED 12/04/2019......................................................................... PN853

THE WITNESS WITHDREW............................................................................. PN860

SUSAN KIM MCINERNEY, AFFIRMED......................................................... PN882

EXAMINATION-IN-CHIEF BY MR WAINWRIGHT.................................... PN882

EXHIBIT #A6 WITNESS STATEMENT OF SUSAN MCINERNEY PLUS ONE ATTACHMENT.................................................................................................... PN891

EXHIBIT #A7 AMWU UPDATE AT COURT BOOK PAGE 73.................... PN902

CROSS-EXAMINATION BY MS STOJANOVA.............................................. PN915

THE WITNESS WITHDREW............................................................................. PN936