PN961

THE DEPUTY PRESIDENT: Good morning.

PN962

MS STOJANOVA: Good morning.

PN963

MR WAINWRIGHT: Good morning, Deputy President.

PN964

THE DEPUTY PRESIDENT: Good morning. Thank you. Now, are there any preliminary matters before we resume the evidence, please?

PN965

MS STOJANOVA: Deputy President, a few moments ago my instructor sent through an email to the union – to the AMWU – and to your Chambers which contains the full version of the email that the AMWU tendered yesterday from Commissioner Cribb.

PN966

THE DEPUTY PRESIDENT: Right.

PN967

MS STOJANOVA: And I intend to take Mr McCain through that email in examination-in-chief.

PN968

THE DEPUTY PRESIDENT: Okay, thank you. Now, just so you know I'm working off two screens. So if I look to the side I am looking at a screen. I'm not meaning any disrespect to the parties. It's just how I have to operate with the camera and my screens. So if I am looking at that screen it will be because the exhibits up on that.

PN969

All right. Well, is Mr Wainwright, is there any matters you want to raise before we get underway with Mr McCain?

PN970

MR WAINWRIGHT: Deputy President, just in relation to the email that has come through this morning, I have no difficulty with that. We mentioned yesterday that we had forwarded a section of the email. I have got no difficulty with the email per se as long as it's acknowledged that the three photos in RK1 were attached to that email.

PN971

THE DEPUTY PRESIDENT: Right.

PN972

MR WAINWRIGHT: Because if you will recall, Deputy President, that's how we got to us providing the edited form of the email because it was questioned whether or not that was the provenance of those photos.

PN973

THE DEPUTY PRESIDENT: Yes. Yes. Well, there's no outstanding issue there is there, Ms Stojanova?

PN974

MS STOJANOVA: Mr Wainwright will have the opportunity to cross-examine Mr McCain about that email.

PN975

THE DEPUTY PRESIDENT: All right. Well, I don't know what all turns on this but perhaps you can – I'll make sense of it once we're all finished I suppose. The other – so where we had yesterday, Exhibit A5, just bear with me. Exhibit A5 yesterday was an email from Anna Lee Cribb of the 12 April 2019 at 10.27.

PN976

Now, I have – why would I have one at 9.27? Is this one of these things with – it says there's a few more things than the other email from yesterday.

PN977

MS STOJANOVA: So deputy - - -

PN978

THE DEPUTY PRESIDENT: Yes.

PN979

MS STOJANOVA: I'll just - - -

PN980

THE DEPUTY PRESIDENT: A5 from yesterday – I'll just make sure I have got the right print out of it because it doesn't have as much text as this latest email.

PN981

MR WAINWRIGHT: Yes, Deputy President, perhaps if I could state. So what we did put yesterday and it will be on transcript is that we provided the email of 12 April 2019 in edited version to demonstrate that it was the email that attached the photo.

PN982

THE DEPUTY PRESIDENT: I see.

PN983

MR WAINWRIGHT: So that was provided in one. My friend - - -

PN984

THE DEPUTY PRESIDENT: So that was not the full text. Is that what you're saying?

PN985

MR WAINWRIGHT: And that's exactly what we said yesterday.

PN986

THE DEPUTY PRESIDENT: Right.

PN987

MR WAINWRIGHT: My friend then provides a full copy of the email today without the attachments. For us the importance of the email is about the attachments. I think the 10.27 versus the 9.27 is a result of, I think, Mr McCain has forwarded this from the northern hemisphere.

PN988

THE DEPUTY PRESIDENT: Right.

PN989

MR WAINWRIGHT: So I think that's daylight savings. The computer has done that for some reason. But I'm happy to acknowledge that that's the same core email that we're talking about from Anna Lee Cribb. And I do think that my friend should acknowledge that this is the email that attached the photos that are RK1.

PN990

MS STOJANOVA: Deputy President, Mr Wainwright, the copy of the email that was sent to Mr Wainwright and Deputy President, your Chambers, at 7.56 am today contains the email in full with the attachments.

PN991

THE DEPUTY PRESIDENT: Yes.

PN992

MS STOJANOVA: And then it also contains a PDF which is - - -

PN993

THE DEPUTY PRESIDENT: Yes.

PN994

MS STOJANOVA: - - -just the email. That's a repeat of the email that's contained in the first attachment, and the reason that my instructor did that is because sometimes people's systems can't open attached complete emails.

PN995

THE DEPUTY PRESIDENT: No.

PN996

MS STOJANOVA: So, if Deputy President, for example, if you couldn't open that first attachment which is the complete email with the attachments then my instructor has provided a PDF of the email. But you could just look to that first attachment from my instructor's email this morning.

PN997

THE DEPUTY PRESIDENT: Yes. And it's got four photos attached.

PN998

MS STOJANOVA: Yes. So the AMWU yesterday did not provide a copy of that email with the attachments. We have provided a copy of the email with the attachments.

PN999

THE DEPUTY PRESIDENT: Right. Okay. All right.

PN1000

MR WAINWRIGHT: So on that basis, Deputy President, I can't open it so that is happening with my system. But on that basis I am content with the witness having a look at this email.

PN1001

THE DEPUTY PRESIDENT: Thank you. All right. Well, I'll just close all those up for now. Okay. All right. Now those matters aside are we ready for Mr McCain?

PN1002

MS STOJANOVA: Yes, Deputy President.

PN1003

THE DEPUTY PRESIDENT: All right. Thank you. I will ask my Associate to admit Mr McCain to the meeting room, please.

PN1004

Good morning, Mr McCain or good evening in your case, I suspect. My name is Deputy President Clancy and I am hearing the dispute in arbitration at the Fair Work Commission. The part of the proceeding we have reached is to receive your evidence. So the first thing that will happen is my Associate will take an affirmation from you. Then Ms Stojanova will deal with your evidence-in-chief and then there may be some cross-examination from Mr Wainwright who is representing the union. All right?‑‑‑Yes, that's great. And good morning, Deputy President.

PN1005

Thank you.

PN1006

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

PN1007

MR McCAIN: Brian Pearson McCain, (address supplied).

<BRIAN PEARSON MCCAIN, AFFIRMED [8.16 AM]

EXAMINATION-IN-CHIEF BY MS STOJANOVA [8.16 AM]

PN1008

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

PN1009

MS STOJANOVA: Mr McCain, you've prepared two witness statements in this proceeding?‑‑‑Yes, I have.

*** BRIAN PEARSON MCCAIN XN MS STOJANOVA

PN1010

Could I please ask you to state your full name, professional address and occupation for the record?‑‑‑Brian McCain (address supplied) and I am Director of Environment and Resource Efficient Operations for McCain Foods globally.

PN1011

Mr McCain, I am going to share my screen and I am going to take you to page 199 of the court book in this matter. Can you see my screen, Mr McCain?‑‑‑Yes, I can.

PN1012

Is this your first witness statement that you made in this matter?‑‑‑Yes, it is.

PN1013

And can I confirm that your first witness statement is 32 paragraphs long?‑‑‑Yes, it is.

PN1014

And can I confirm that you made this statement on 12 May 2022?‑‑‑That's correct.

PN1015

Mr McCain do you have any corrections that you wish to make to your first witness statement?‑‑‑Yes, there was one typo that I found in paragraph 30. I believe it says staff staffing levels and it was supposed to say safe staffing levels.

PN1016

Here, staff staffing levels should be safe staffing levels. Is that correct?‑‑‑That's correct, yes.

PN1017

Mr McCain, do you confirm that to the best of your knowledge and belief your first witness statement is true and correct?‑‑‑Yes, I do.

PN1018

Deputy President, I tender Mr McCain's first witness statement and the accompanying exhibits.

PN1019

THE DEPUTY PRESIDENT: Thank you. Mr Wainwright, subject to cross-examination any objection?

PN1020

MR WAINWRIGHT: No, your Honour.

PN1021

THE DEPUTY PRESIDENT: Thank you. The witness statement of Brian McCain which is in the court book at page 199 comprising 32 paragraphs dated 12 May with attachments will be marked Exhibit R1.

*** BRIAN PEARSON MCCAIN XN MS STOJANOVA

EXHIBIT #R1 WITNESS STATEMENT OF BRIAN McCAIN DATED 12/05/2022 COMPRISING 32 PARAGRAPHS

PN1022

Thank you. Yes, Ms Stojanova.

PN1023

MS STOJANOVA: And Mr McCain, you've made a supplementary witness statement in this matter?‑‑‑Yes, I have.

PN1024

Which was provided to the Fair Work Commission on 29 May 2022?‑‑‑That's correct.

PN1025

Can I confirm that it's nine paragraphs long?‑‑‑Yes, that's right.

PN1026

And that you made the statement on 27 May 2022?‑‑‑Yes, I believe so.

PN1027

Mr McCain do you have any corrections that you wish to make to your supplementary witness statement?‑‑‑No. I do not.

PN1028

Mr McCain, do you confirm that to the best of your knowledge and belief that supplementary witness statement is true and correct?‑‑‑Yes, I do.

PN1029

Deputy President, I tender Mr McCain's supplementary witness statement and the accompanying exhibit.

PN1030

THE DEPUTY PRESIDENT: Thank you. Mr Wainwright, again, subject to cross-examination any objection?

PN1031

MR WAINWRIGHT: No, your Honour.

PN1032

THE DEPUTY PRESIDENT: Thank you. I'll mark the supplementary statement of Brian McCain, which is dated 27 May and has nine paragraphs and one attachment as Exhibit R2.

EXHIBIT #R2 SUPPLEMENTARY STATEMENT OF BRIAN McCAIN DATED 27/05/2022 COMPRISING NINE PARAGRAPHS AND ONE ATTACHMENT

PN1033

Thank you. Ms Stojanova, any additional matters?

*** BRIAN PEARSON MCCAIN XN MS STOJANOVA

PN1034

MS STOJANOVA: Yes, Mr McCain last night I got an email from Mr Wainwright from the AMWU and he asked me to send an email to you. Do you know what I am referring to?‑‑‑Yes, I do.

PN1035

I'll share my screen now. Mr McCain, is this the email that you received that I forwarded to you last night?‑‑‑Yes, it appears to be.

PN1036

And what did you do when I forwarded this email to you?‑‑‑I looked up the original email on my email inbox.

PN1037

Mr McCain, I am going to share my screen with you now and I want you to tell the Deputy President if this is the email that you just referred to? Is this the email that you found in your inbox, Mr McCain?‑‑‑Yes, it is.

PN1038

And can you explain to the Deputy President what is said in this email?‑‑‑This email was a summary from former Commissioner Cribb summarising the day's activities and the agenda for the next meeting which she routinely sent out following our negotiation sessions. There were four photos attached and some which showed the issues and others which were the results of some brainstorming work.

PN1039

So what we had identified was that there were – what we called first tier issues which were issues that the union identified as being necessary for any new agreement to take place. And second tier issues which were once they wanted to get into the agreement but maybe not barriers to getting an agreement. Of those first tier issues, halfway down that email, it talks about the agenda for the next meeting that we would be focusing on some of those first tier issues, the first one being safe manning levels. And the second photo shows the results of a – photo number two – shows the results of some brainstorming work. The majority of that photo is my own handwriting. That shows what we worked on to identify all of the potential causes of unsafe work in the plant and we divided that it into two different categories. What we called permanent issues that were ongoing and were not – were more systematic – and temporary issues that might be the result – that might only occur for a couple of hours or for one shift. And so in the email when it talks about 'above the line' and 'below the line' it refers to whether there's the items above the line, which were kind of the permanent issues we were trying to resolve and below the line being the temporary issues that we were going to resolve. So, as you can see, at point number one in the email it said that it was common ground that a JSA was the appropriate way to deal with below the line events which eventually - - -

PN1040

And what's a JSA Mr McCain?‑‑‑A job safety analysis.

*** BRIAN PEARSON MCCAIN XN MS STOJANOVA

PN1041

Thank you. Continue?‑‑‑Which ended up becoming, I believe, clause 27 in the final EBA and that the union was to put forward a proposal to deal with the above the line clauses which, eventually, became the changes to clause 10 in the final EBA around the major change clause in the final agreement.

PN1042

And was that major change clause in clause 10 also concerned with job safety analysis?‑‑‑It was associated with the ability to bring in a subject matter expert. In the case of a major change to try and resolve potential disagreements in the case of a major change between employees and the union and the company.

PN1043

And did you have anything else that you wanted to say before I interrupted you, Mr McCain?‑‑‑Now, just the – I guess – sorry, the last item being the costs items. We routinely, as we went through the negotiations with the union, we routinely costed out all of the claims that were being made by the union to show this is the full impact of the cost of the agreement and at no point did we cost out adding additional employees to the packing area, over and above what was already in place at the time.

PN1044

And are you able to speak to the text in the body of the email which is on the screen now. Does Commissioner Cribb, in her email, speak about the first tier issues in photo one?‑‑‑Yes. So the first tier issues that were shown in photo one were the issues from the union's point of view where we had to reach an agreement in order for there to be a final agreement. As you can see in photo number one, which I am just going to open if that's okay so I can - - -

PN1045

Yes, of course?‑‑‑- - -make sure I am accurate in my statement. But the first issues when the union raised its initial log of claims they used wording that was set manning levels for each area. As we got into the negotiations and as Mr Kenna routinely asserted that the issue was not really around set manning levels it was about safe manning levels. And this was an area where we found mutual agreement between the company and the union that a set number of employees in a specific area of the plant didn't make sense that it really had to be focused on having a safe number of employees in a specific area of the plant. And that might change over time on a temporary basis or a permanent basis depending on maintenance or equipment issues or investment or training over time. And that's why, in that first photo, it shows safe manning levels in brackets, because really the conversation had moved on from the idea of set manning levels to safe manning levels.

*** BRIAN PEARSON MCCAIN XN MS STOJANOVA

PN1046

And does Commissioner Cribb, in the body of her email talk about photo number two?‑‑‑Yes, she does. So photo number two was to capture the discussion between the parties about the issues for members that are driving the union's proposed safe manning levels clause. So as I highlighted that was the outcome of a brainstorming session where we identified long-term and ongoing issues that would drive a changed workload. And potentially impact safe working conditions and also short term or temporary items. So the majority of that photo is in my handwriting. The only exception would be around standard crewing which from my own recollection was generally more of a reference to prepared foods, the other facility on our site, where they had much more variability in employee numbers, depending on what product they were producing.

PN1047

And does Commissioner Cribb talk about photo number four in her email?‑‑‑Yes. She talks about photo number four which was the agenda for the next meeting, that there four items on that agenda. The first one being that we were going to discuss safe manning levels. The second one that we were going to be discussing the classification structure, followed by redundancy issues and cost items.

PN1048

And, finally, what did Commissioner Cribb say about the discussion in relation to safe manning levels under photo four?‑‑‑She said that the union would put forward a proposal to deal with the above the line clauses. These were the permanent or long-term clauses and that the company may do the same as shown by her question mark. On the below the line issue she stated that it was common ground that a JSA or job safety analysis was the appropriate way to deal with the temporary issues. We had raised some issues – three issues in relation to JSAs – and the union was to review its proposal in light of those issues that were raised by the company at the time and the company was also going to further consider the union's proposal on the use of JSAs to address safe manning levels.

PN1049

Thank you, Mr McCain. Is there anything else that you wanted to add about the questions that you've been asked?‑‑‑No. There is not.

PN1050

Deputy President, I tender the email from Brian McCain that was just being shared on the screen and that was sent to your Chambers this morning at 7.56 am.

PN1051

THE DEPUTY PRESIDENT: Thank you. Mr Wainwright, any comments at this point?

PN1052

MR WAINWRIGHT: No. No, your Honour.

PN1053

THE DEPUTY PRESIDENT: All right. Thank you. Well, I will mark that email as Exhibit R3 and that then includes the two attachments.

EXHIBIT #R3 EMAIL INCLUDING TWO ATTACHMENTS FROM BRIAN McCAIN

*** BRIAN PEARSON MCCAIN XN MS STOJANOVA

PN1054

MS STOJANOVA: Thank you, Deputy President. That is the evidence for this witness.

PN1055

THE DEPUTY PRESIDENT: All right, thank you. Mr McCain, Mr Wainwright might have some questions for you and I should just explain if I am turning to the side I am looking at another screen with documents on it. Thank you. Mr Wainwright?

PN1056

MR WAINWRIGHT: Thank you, your Honour.

CROSS-EXAMINATION BY MR WAINWRIGHT [8.31 AM]

PN1057

MR WAINWRIGHT: Good morning, Mr McCain – good evening, Mr McCain. Thank you for joining us today?‑‑‑Good morning.

PN1058

We appreciate your evidence. Can I ask you can you give evidence about the crewing level in the potato packing area during 2021?‑‑‑No. I cannot.

PN1059

Because it's the case that you can't give evidence about what was occurring at Ballarat after you left in February 2020. Is that correct?‑‑‑I left in March 2020 but, yes, I have not been in routine contact with the site so I can't speak to the details that are currently happening or happened in 2021.

PN1060

Okay, thank you. So just for clarity the evidence that you give today is relevant to the potato packing area up until March 2020. That's correct, isn't it?‑‑‑That's correct.

PN1061

Yes, thank you. And can I ask you do you have the court book with you?‑‑‑Yes, I do.

PN1062

Fantastic. Could I ask you to turn to page 105 of the court book, please?‑‑‑Yes. Sorry. 106 – yes, 105.

PN1063

Okay. And you were just discussing with my friend, you were referring to this as photo one. Do you agree that this was photo one?‑‑‑Yes. That appears to be photo one.

PN1064

Okay. And I think that you will agree that in your email system you retained possession of this photo when you made your first witness statement. Is that correct?‑‑‑Correct.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1065

And you decided not to include this evidence in your first witness statement. That's correct, isn't it?‑‑‑Yes. It's not included in my first witness statement.

PN1066

Yes. And could I ask you to have a look at point three?‑‑‑Yes.

PN1067

Do you see that there? Set manning levels for each area. Could you tell the Commission what, in your view, does the term 'set manning levels for each area' refer to?‑‑‑Set manning levels for each area referred to the original wording that was put forward in the union's log of claims to McCain's for negotiation under the agreement.

PN1068

And where would those manning or crewing levels go in the EBA?‑‑‑We did not have any discussion about set manning levels in the EBA. So we never had any discussion about where they would go in the EBA.

PN1069

Well, your evidence there was a little bit confusing because you began by saying that was the original claim and then you said, 'We never discussed that.' So which was it? Was there an original claim, or was it never discussed?‑‑‑That was their original wording and when we started discussing the claim it became very clear – you know – there has to – Mr Kenna – that what the union was more interested in talking about was safe manning levels. So we never had any discussion regarding specific numbers of employees in areas of the facility.

PN1070

You have a detailed knowledge of the 2016 McCain Ballarat EBA don't you?‑‑‑I know the content of it. I was not involved in the negotiation of it.

PN1071

Yes. And you know where the manning levels at that time were in that EBA, don't you?‑‑‑Yes, I do.

PN1072

And where were they?‑‑‑They were in the appendix.

PN1073

Okay. They were in Appendix 1 and it's correct to say that they're in Appendix 2. That's correct, isn't it?‑‑‑I believe they're only in one appendix relating to the potato facility.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1074

Well, I will come back to that later. I will come back to that later. But you, in reading that term on page 105 of the court book, point three, set manning levels for each area. Is it your evidence that you did not understand that that referred to Appendix 1?‑‑‑It was our expectation when we started that that's what it was going to refer to. But on discussions and negotiations it became clear that Mr Kenna was more interested in discussing safe manning levels. So the end result was not to discuss the contents of Appendix 1.

PN1075

Well, I put it to you that Mr Kenna and the rest of the AMWU negotiators wanted to set manning levels or crewing levels in the EBA. That's correct isn't it?‑‑‑That is not correct.

PN1076

MS STOJANOVA: Objection. This witness is not able to speak to what was intended by the AMWU.

PN1077

MR WAINWRIGHT: Well, that's precisely what we have just been doing, Deputy President. This witness has been saying what Mr Kenna wanted. And Mr Kenna has already given evidence about that. I am required to put that to him.

PN1078

MS STOJANOVA: This witness can give evidence of what Mr Kenna said to him. This witness cannot give evidence of what was in Mr Kenna's mind or the intentions of the union.

PN1079

THE DEPUTY PRESIDENT: Yes. Well, I am aware of that. So put the question in a way that it can be answered one way or the other.

PN1080

MR WAINWRIGHT: Yes, Deputy President. Mr Kenna told you that he wanted to set crewing levels in the EBA, didn't he?‑‑‑No, he didn't.

PN1081

Mr Kenna is capable of doing more than one thing at a time, isn't he?‑‑‑I believe so, yes.

PN1082

So he's capable of seeking set crewing levels and seeking safe crewing levels at the same time, isn't he?‑‑‑Yes. He is capable of that.

PN1083

Yes. And can I ask you to turn to your witness statement at paragraph 22? I will give you a page reference. Page 203 of the court book?‑‑‑Okay, yes.

PN1084

Do you see your evidence there?‑‑‑Yes, I do.

PN1085

That evidence is at odds with what you have just told the Commission, isn't it?‑‑‑I don't believe so, no.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1086

So you have said today that you had an expectation when negotiations started that the AMWU negotiators wanted set crewing levels?‑‑‑I had an expectation but it did not occur.

PN1087

Okay. It did not occur but it was written up in photo one wasn't it?‑‑‑That was the original log of claims that was raised by the AMWU. But we did not discuss it in the context of specific numbers of employees and specific parts of the plant.

PN1088

Well, I put it to you that the AMWU negotiated, sought specific numbers of employees to be employed in specific parts of the plant. That's correct, isn't it?‑‑‑I disagree with that statement.

PN1089

In terms of the use of the phrase 'Appendix Profile' in the context of these negotiations, what do you understand that to mean?‑‑‑I am unclear what that would mean.

PN1090

So what I am asking you to think about and to provide evidence on to this Commission is within the context of these negotiations that you participated in we see the use of the phrase 'Appendix Profile', so I am asking you within that context, within your own knowledge, what do you think that means?

PN1091

MS STOJANOVA: Objection. The question is vague.

PN1092

THE DEPUTY PRESIDENT: It can be asked and answered please?‑‑‑Can you give a specific reference where Appendix Profile is used?

PN1093

MR WAINWRIGHT: Yes?‑‑‑I don't know what you're referring to I'm sorry.

PN1094

Please turn to page 296 of the court book?‑‑‑All right. Almost there. Yes.

PN1095

So you see Appendix 1 there?‑‑‑Yes, I do.

PN1096

So when the term Appendix Profile is used do you think it refers to Appendix 1?‑‑‑Sorry, I don't understand what you mean by 'profile' but I understand this is Appendix 1.

PN1097

Okay. Can I ask you to go back to page 90 of the court book please?‑‑‑Okay.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1098

Do you see there item six?‑‑‑Yes.

PN1099

And can you see the middle column?‑‑‑Yes, I can.

PN1100

Okay. So you see that the item refers to setting manning levels for each area and then you see the use of the term Appendix Profiles?‑‑‑Yes. I do see that term.

PN1101

So, again, I'll ask you. Within that context what do you understand the term Appendix Profiles to mean?‑‑‑Within that context I would assume it is referring to Appendix 1 and the other appendices.

PN1102

Thank you. Mr McCain, you have given evidence today about your witness statement and the attachments?‑‑‑Yes, I have.

PN1103

Thank you. I will ask you to have a look at BM2 at page 211 of the court book?‑‑‑Yes.

PN1104

Do you have that there?‑‑‑Yes, I do.

PN1105

Okay. Was this material provided to the employees when they voted on the 2019 Enterprise Agreement?‑‑‑No. It was not.

PN1106

And can you explain to the Commission what this material demonstrates?

PN1107

THE DEPUTY PRESIDENT: Have we lost the connection there, perhaps – Mr McCain? Can you hear me Mr McCain? It looks like the screen has frozen.

PN1108

MS STOJANOVA: Yes.

PN1109

THE DEPUTY PRESIDENT: I will just ask – what's the best way?

PN1110

MR WAINWRIGHT: Perhaps if we just wait for a moment, Deputy President.

PN1111

THE DEPUTY PRESIDENT: Yes.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1112

MS STOJANOVA: Let me communicate with my instructor, Deputy President. Deputy President, Brian McCain is rejoining.

PN1113

THE DEPUTY PRESIDENT: Okay, thank you.

PN1114

MS STOJANOVA: I am not sure how long it will take.

PN1115

THE DEPUTY PRESIDENT: That's all right.

PN1116

MS STOJANOVA: I mean probably quite quick.

PN1117

THE DEPUTY PRESIDENT: We'll see it come up shortly, hopefully, on the screen. Right?‑‑‑Sorry about that.

PN1118

That's okay. Mr McCain, I'm not sure whether you caught the question that Mr Wainwright put to you but I might ask him just to put it again, please?‑‑‑Thank you.

PN1119

Mr Wainwright, you're on mute.

PN1120

MR WAINWRIGHT: Sorry. Mr McCain, we were looking at BM2 and I was asking you to explain the significance of that material?‑‑‑In 2017 we commenced our employee consultation around the regeneration of the Ballarat Potato Plant, this material was presented to all employees at a meeting on the site to commence the consultation process around the change to the plant and the impact that that would have on employees at the plant.

PN1121

Okay. And prior to this process is it correct that in the potato packing area there were 12 production staff?‑‑‑I believe it was 11 hourly employees at the time on most shifts.

PN1122

Yes. Were there six production staff on the Bosch's machines?‑‑‑Yes, I believe that is correct.

PN1123

Were there two production staff on the case deck?‑‑‑Yes. I believe that was correct.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1124

Were there two production staff in the grading room?‑‑‑There was one production staff in the grading room, and sometimes a second employed depending on products that were being run.

PN1125

I put it to you that there were permanently two production staff in the grading room prior to the regeneration project?‑‑‑That is not my recollection but I would have to go back and verify that.

PN1126

Thank you. And I put it that there two production staff on the row (indistinct) at the time?‑‑‑That is correct.

PN1127

Thank you. And would you say that your vision in the regeneration project was fully realised?‑‑‑I am not quite sure what you're referring to.

PN1128

So what you have outlined for us at B2 is what you were seeking to do with the regeneration project. You had some new machines. You had new technology to be introduced. You had a vision of your goal in terms of the overall project. What I am asking you is was that vision fully realised?

PN1129

MS STOJANOVA: Objection. The question is vague. What is the vision?

PN1130

MR WAINWRIGHT: Well, it's the witness's vision. It was his project. He can answer.

PN1131

MS STOJANOVA: Deputy President the question is unintelligible. What is the vision?

PN1132

THE DEPUTY PRESIDENT: I am not sure that is unintelligible. I mean there is a regeneration project. What was the vision in introducing that project? That seems to be the thrust of the question is it not?‑‑‑I would say broadly speaking which is the goals of the regeneration project.

PN1133

MR WAINWRIGHT: So broadly speaking and speaking in minutiae, in the detail, which parts of the project were not realised?‑‑‑I mean there is always when you're dealing with – you know – a many million dollar project two years beforehand there are always small changes to the project that occur along the way for various reasons. So the list would be quite significant in terms of changes that occurred between 2017 and 2019, but they were not, in my opinion, significant changes.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1134

We have heard evidence that there was a vision that iPads could be used to run lines remotely. That wasn't realised, was it?‑‑‑That was never - - -

PN1135

MS STOJANOVA: Objection. Relevance.

PN1136

THE DEPUTY PRESIDENT: Look, you can make submissions on whether it's relevant or not but I am allowing the question please?‑‑‑That was never an objective of the regeneration project.

PN1137

MR WAINWRIGHT: And you were informed by operators that the regeneration project wasn't delivering on its goals, weren't you?‑‑‑There were various conversations that occurred around the regeneration project. There were always opportunities to improve the performance of certain pieces of equipment.

PN1138

You have given a fairly vague response there in kind of managerial speak. I am asking you for your evidence. You were informed by operators that the goals of the project were not realised, weren't you?‑‑‑I would not say that I was informed that the goals were not realised.

PN1139

What would you say?‑‑‑I would say that operators informed me of issues with various pieces of equipment and processes within the plant.

PN1140

Yes. Well, issues is a very vague term. So we're actually asking you for your evidence about what you recall and what you know. So perhaps if you could be more specific in your responses we could deal with these matters a bit more efficiently. Okay?‑‑‑Okay.

PN1141

So could I ask you to turn to page 296 of the court book please?‑‑‑Yes. Yes, I'm on there.

PN1142

Yes. Can you see clause 2.2.2 there?‑‑‑Yes, I do.

PN1143

That was in addition to the 2019 Enterprise Agreement as compared with the 2016 Enterprise Agreement wasn't it?‑‑‑That is correct.

PN1144

And when employees were voting on the agreement were they given information about that change?‑‑‑They were given the complete agreement and my recollection was that they were given a summary of the various changes that occurred throughout the document.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1145

And have you provided that summary in evidence here?‑‑‑I don't believe I provided it. It may have been – I think there was a document that showed all of the original union claims that was signed by both McCain and Mr McCarthy, was showed all of the union claims and where they were addressed within the agreement.

PN1146

Do you think there was?‑‑‑I know that that is included as evidence and my memory is that that was provided to employees.

PN1147

Yes. Your memory is that that document was provided to employees?‑‑‑That is my memory, yes.

PN1148

Can I ask you to turn to page 298?‑‑‑Yes.

PN1149

Do you see clause nine there?‑‑‑Clause nine. Yes, I do.

PN1150

You made a change in clause nine in your 2019 agreement as compared with the 2016 agreement didn't you?‑‑‑I believe so, yes.

PN1151

And was that change explained to employees when they voted on the agreement?‑‑‑As previously mentioned there was a summary document providing all of the changes to the document so I believe that that was explained to employees.

PN1152

Now, I might ask you to turn to page 300?‑‑‑Yes.

PN1153

Now we have established that you're familiar with the 2016 agreement. There's a change in this section of the Appendix 2, isn't there?‑‑‑I'm just having a look at it again. Which is the change? I would have to refresh my memory?

PN1154

Yes. Well, allow me to assist you. In the 2016 agreement you had quite a lengthy provision at clause 17 headed, 'Mechanics of shift voting process'?‑‑‑Yes.

PN1155

Do you recall what happened with that provision?‑‑‑Yes. I believe that was taken out of the appendix.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1156

And why was that taken out?‑‑‑Because there had been a change to the shift profile that resulted in the eight-hour shifts being included and we no longer felt it was necessary to be in the agreement.

PN1157

And when you say 'we' who are you referring to there?‑‑‑McCain and the union during negotiations.

PN1158

In fact it was agreed that that provision was redundant wasn't it?‑‑‑Yes, I believe that was the consensus.

PN1159

So do you agree with having looked at those changes in Appendix 1, do you agree that Appendix 1 was significantly altered between the 2016 and the 2019 agreement?‑‑‑The appendix was altered, yes.

PN1160

Well, I am going to ask you again if you agree with me that the appendix was significantly altered?‑‑‑I don't know that I would say 'significantly'. I think that's dependent on your opinion.

PN1161

Well, I am only asking for your opinion?‑‑‑I don't agree that it was significantly altered.

PN1162

How would you characterise the alteration to Appendix 1?‑‑‑I would say that the appendix was altered to address some of the issues that were raised by the union.

PN1163

And it resulted to address redundant provisions in it, wasn't it?‑‑‑There were additions to the appendix and removals from the appendix. I wouldn't say that it was redundant because the 24/7 profile still existed in some form but there was now a slight difference in the way that it was implemented.

PN1164

But you've agreed with me that you removed redundant provisions?‑‑‑I agree that we removed provisions.

PN1165

Yes. Thank you?‑‑‑Sorry, can I make one – just hardware change here? I just have to plug in. So I am going to have to reach behind my computer.

PN1166

Of course?‑‑‑So just so you - - -

PN1167

THE DEPUTY PRESIDENT: Yes.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1168

THE WITNESS: I'll turn my microphone off while it's happening just so I don't - - -

PN1169

THE DEPUTY PRESIDENT: Yes.

PN1170

THE WITNESS: Thank you.

PN1171

MR WAINWRIGHT: Thank you. Can I ask you to turn to page 87 of the court book?‑‑‑Yes.

PN1172

I withdraw that. Page 88 – sorry – 87 is the cover sheet?‑‑‑Yes.

PN1173

Do you recall this document?‑‑‑Page 88 appears to be a blank sheet.

PN1174

Well, okay. Perhaps if you turn over. I think we have got different versions?‑‑‑Okay. 89.

PN1175

Yes. There's a document headed, 'Original union list 18 October 2018 updated 24/4/2019'?‑‑‑Yes.

PN1176

Okay. Do you recall this document?‑‑‑Yes, I do.

PN1177

And do you know who prepared this document?‑‑‑Generally, Karsten Munstega was the one who kept it up to date but it was usually amended in discussions.

PN1178

Yes. Can I ask you about the discussions briefly? Over what period was this agreement negotiated?‑‑‑Well, I guess there was – we worked to a new approaches process throughout 2018 but I believe the formal negotiations on the agreement didn't start until 2019 but we had been in continuous conversation for 12 months at that point, facilitated by former Commissioner Cribb.

PN1179

And in terms of the formal negotiations, how many of those meetings did you attend?‑‑‑I don't recall missing any of them but I don't have a record of my attendance at hand.

PN1180

There's been evidence that you were not present for the early stages. Does that accord with your recollection?‑‑‑No, it does not.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1181

Okay. And how many of the meetings do you recall Angela McCarthy attending?‑‑‑I don't have a specific number. I know she was not at all of the meetings.

PN1182

And how many of the meetings do you recall Ross Kenna attended?‑‑‑Again, I don't have a specific number but Ross Kenna attended fewer meetings, in my opinion, than Ms McCarthy.

PN1183

Well, I put it to you that Ms McCarthy attended all of the formal negotiating meetings. Do you accept that?‑‑‑No, I don't.

PN1184

And I put it to you that Ross Kenna attended on all of the formal negotiating meetings leaving only one meeting early in the session. Do you accept that?‑‑‑No, I do not.

PN1185

Okay. And we looked at page 105 earlier. I might take you back there if I can?‑‑‑Yes.

PN1186

And do you have a colour version of that in front of you?‑‑‑Yes, I do.

PN1187

Thank you. Do you recall this negotiating session?‑‑‑In general terms. Yes, I recall these discussions.

PN1188

Okay. And do you recall that it occurred in the dinner plant boardroom?‑‑‑Yes, I do.

PN1189

And can you explain to us the significance of the use of a black marker and a blue marker and what's the significance of the different colours?‑‑‑I can't recall the significance of the different colours.

PN1190

Thank you. But you have given evidence that you do recall receiving these photos in the email from Anna Lee Cribb. Is that correct?‑‑‑Yes, I do.

PN1191

Thank you. Can I ask you to turn to page 113 of the court book, please?‑‑‑Yes.

PN1192

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

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1193

This is a complaint about crewing levels in the potato packing area isn't it?‑‑‑Yes, it is. Although it's a complaint about supervisors. Sorry, I thought this was the next on this. This is a complaint about supervisors operating equipment.

PN1194

And how was the manner of supervisors operating equipment dealt with in the 2019 enterprise agreement?‑‑‑There was a new clause added that salaried staff members were not to operate equipment except in certain situations.

PN1195

So, Mr Aspland communicating with you via this method has, at least in part, in your evidence resulted in the new clause being included. That's correct, isn't it?‑‑‑I believe the new clause had probably already been agreed by this point as it was one we were fairly in agreement with earlier on.

PN1196

Yes. Can I ask you to turn to page 117 of the court book, please?‑‑‑Yes.

PN1197

Do you recall receiving this email?‑‑‑Yes, I recall this email.

PN1198

Now, Mr Aspland is asking for two discussions with you here, isn't it?‑‑‑Yes, it appears that way.

PN1199

And did you hold those discussions with him?‑‑‑I can't remember if I held a specific discussion with him. We obviously had the EBA negotiations but the fact that he sent this email which shows that it was not on the agenda for that negotiation session and, as I have mentioned earlier, we did not specifically discuss set crewing numbers during the EBA negotiations.

PN1200

So if I could take you to the final paragraph of the email? Do you agree that Mr Aspland is asking to have half an hour set aside in the EBA discussions to discuss the issue of supervisors being hands-on?‑‑‑I agree that he is asking for that, yes.

PN1201

Yes. And that demonstrates, doesn't it, that that issue had not, at that stage, been settled in the agreement. That's correct, isn't it?‑‑‑It demonstrates that he felt supervisors were still operating equipment, not that it was in the agreement.

PN1202

Well, perhaps if we can just deal with that a little bit more specifically. You have agreed that he has asked you for a discussion on the supervisors being hands-on in the EBA negotiations. You've agreed with that, haven't you?‑‑‑Yes. I agree that that is in that email, yes.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1203

Yes. And he wouldn't ask for it to be discussed in the EBA negotiations if it had, at this stage, already been settled in the EBA would he?‑‑‑He would. Because he raised it at almost every negotiation session and when asked for specifics he did not provide specifics in terms of names or dates or locations.

PN1204

Yes. Well, I put it to you that you're avoiding the question. So I will ask it again. There is no logical reason for him to discuss this matter in the EBA negotiations specifically if it wasn't relevant to the EBA negotiations would he?

PN1205

MS STOJANOVA: Objection. Speculation.

PN1206

THE DEPUTY PRESIDENT: My general approach with the cross-examination throughout the proceedings has been to allow such sort of questions if the witness is able to answer the question they answer. If they aren't able to answer the question they don't. So I will allow the question?‑‑‑Leigh often brought up topics in the EBA negotiations that were not part of the negotiations. So, yes I can see that he would want to talk about it even if it had already been agreed as a clause.

PN1207

MR WAINWRIGHT: And was the negotiating session on crewing levels in potato packing scheduled?‑‑‑No. Not on set crewing levels.

PN1208

And what happened with regard to his request in that respect?‑‑‑I looked up this email and I saw no reply from myself or response from anyone else from the company or the union on it. And as I have mentioned previously there was no specific discussions around the set number of employees in any part of the plant.

PN1209

Yes, but this is evidence, isn't it, that the set number of employees in potato packing was raised with you by an AMWU negotiator on the 30 April 2019?‑‑‑Yes, it is and that was also in my witness statement that Leigh Aspland occasionally raised this. But the rest of the negotiating team did not take it anywhere.

PN1210

Yet it's in the agreement?‑‑‑What's in the agreement?

PN1211

Eleven staff members for potato packing is in the agreement. So how could you put, logically, that it didn't go anywhere?‑‑‑Because we didn't have any conversations about it. So that clause – that specific clause remained unchanged and we felt we had dealt with it through the major change and consultation process that began in 2017.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1212

In fact, you felt that that part of Appendix 1 was redundant, didn't you?‑‑‑No, I don't believe so.

PN1213

So you felt that it was active and relevant. Is that correct?‑‑‑I felt that it was relevant when the appendix was written and that as the rest of the appendix states it could be altered through changes to the process and investments and equipment and capability and that we had gone through that process, that major change process in 2017 and therefore had changed the numbers.

PN1214

Well, if we could talk about that a bit more in regard to page 273 of the court book?‑‑‑Yes.

PN1215

Do you see clause 20.14 there?‑‑‑Yes, I do.

PN1216

Do you remember negotiating this provision?‑‑‑Yes, I do.

PN1217

Is this provision a new provision, as compared with the 2016 McCain Ballarat EBA?‑‑‑From my recollection, yes, it was.

PN1218

Essentially it introduced a regime of additional breaks for people who work at cold temperatures, that's correct, isn't it?‑‑‑That is correct.

PN1219

It did that on the basis of research and expertise that McCain brought in to examine this part of the work, that's correct, isn't it?‑‑‑I'm not specifically aware of the research that you're referring to.

PN1220

You are aware, in negotiating this provision, that it would require additional labour to cover these additional breaks, weren't you?‑‑‑These breaks were already in place and honoured, and had been for a significant amount of time.

PN1221

Well, we've seen evidence here that they're not being honoured, but we'll move past that, for the moment. I put to you, again, that you were aware that introducing these additional breaks, in the 2019 agreement, would require additional labour to be allocated, weren't you?‑‑‑No. As I stated these breaks were already in place and these breaks generally did not apply to the employees of the packing area.

PN1222

Why did these breaks not apply to employees at the packing area?‑‑‑Because, generally, the employees of the packing area were not spending continuous time inside cold environments.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1223

Are you aware that - I withdraw that, your Honour. I put it to you that in early 2022 the temperature of the grading room was reduced?‑‑‑I can't answer that question, I'm not aware of what the temperature in the grading room is today.

PN1224

That's correct. So if I can ask you, in circumstances where the temperature of the grading room was reduced to 4 degrees that would, within in the context of the new cold breaks regime, that would require the allocation of additional labour, wouldn't it?‑‑‑I believe there were other changes made, than just the temperature, as they did another capital project. So you would have to look at the entirety of the changes, as opposed to just specific changes.

PN1225

Can I take you back to page 85 of the court book, please?‑‑‑Yes.

PN1226

Can I ask you to have a look at paragraph 23?‑‑‑Yes.

PN1227

You see Ms McCarthy's evidence there?‑‑‑Yes, I do.

PN1228

That's correct, isn't it?‑‑‑I mean we agreed to the inclusion of it, as it was already a standard practice.

PN1229

In terms of the crewing levels in the potato packing area, the change to the cold breaks changed the paradigm, didn't it?‑‑‑Sorry, you froze there for a second, so I missed your question.

PN1230

I saw you skip as well, so I'll try and ask that question again. It's the case, isn't it, that in regard to the crewing level in the potato packing area, the introduction of the cold break regime changed the paradigm, that's correct, isn't it?

PN1231

MS STOJANOVA: Deputy President, what does 'change the paradigm' mean?

PN1232

MR WAINWRIGHT: It changed the settings of that work area, didn't it?‑‑‑Sorry, you froze again, in the middle of your question, Mr Wainwright, could you repeat it?

PN1233

Yes, and you seem to be skipping as well. Deputy President, would you like to press on, how do you feel this is?

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1234

THE DEPUTY PRESIDENT: I'm continuing to hear both of you but that might just be my connection.

PN1235

MR WAINWRIGHT: I'm seeing the witness skip, from time to time, and I can see that my friend is saying that her connection is good. So we'll just try and press on. Mr McCain, if you have any difficulty please just let us know?‑‑‑Sure.

PN1236

What I'm asking you is, in regard to the crewing in the potato packing area, do you agree that the introduction of the cold break regime fundamentally changed the labour requirements in that area?‑‑‑(Indistinct) know at the plan, I would not say that, as the packing crew did not receive the cold breaks at that time.

PN1237

And what I'm asking, with your expertise across the industry, if the grading room was to be reduced in temperature, that would lead to a change in the labour requirements, logically, wouldn't it?‑‑‑If that was the only change made, yes, but there were significant other investments in equipment in that room, which may have changed the labour requirements in other ways as well.

PN1238

I'm asking you in the hypothetical, I'm not asking you to give evidence about what's happening in the plant now, because, as we've established, you don't know, you're not in a position to know.

PN1239

MS STOJANOVA: Deputy President, I object to the hypothetical question.

PN1240

THE DEPUTY PRESIDENT: Well, there's a couple of elements to the question to perhaps unpack it a bit, please.

PN1241

MR WAINWRIGHT: I'm happy to move on, Deputy President.

PN1242

THE DEPUTY PRESIDENT: All right.

PN1243

MR WAINWRIGHT: We discussed, earlier, the use of the phrase 'set manning levels', in photo 1, from Anna Lee Cribb, can I ask you, do you agree that a reasonable definition of the word 'set', in that context, is to fix the value at a certain amount or rate?‑‑‑Yes, I agree with that.

PN1244

Thank you. Can I ask you, please, Mr McCain, to turn to page 259 of the court book?‑‑‑Yes.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1245

Just in the context of our earlier discussion, this clause resulted from the concerns that were raised by Mr Aspland, didn't it?

PN1246

THE DEPUTY PRESIDENT: So which clause are we at on 259, please?

PN1247

MR WAINWRIGHT: Excuse me, Deputy President. Speaking specifically about clause 8.4.

PN1248

THE DEPUTY PRESIDENT: Thank you.

PN1249

MR WAINWRIGHT: That clause resulted from the concerns raised by Mr Aspland, didn't it?‑‑‑Yes, it resulted from the concerns raised by the union, as it was one of their original log of claims.

PN1250

Part of the impact of preventing salaried employees from doing this work is that it would increase the demand for labour, from unsalaried employees, that's correct, isn't it?‑‑‑No, it is not, as we were happy to include this as we did not feel that salaried employees were operating outside of these bounds already.

PN1251

I put it to you that this alteration of the agreement impacted on the demand for labour positively, in that more labour was required in the potato packing area, that's correct, isn't it?‑‑‑I disagree with that.

PN1252

Mr Aspland told you that the new machinery wasn't working with the current manning levels, didn't he?‑‑‑Yes, I believe he mentioned that.

PN1253

What did you do about that?‑‑‑I mean that conversation happened a number of times, at the initial stages of the project. As mentioned in my witness statement there were issues with the performance of one of the machines, when first installed, during early commissioning and operation. We had a meeting with union members and with Ms McCarthy, to discuss those and we temporarily put another employee in the area while we worked through the - worked through the issues to get it operating to its design specification. Once we did that, we reduced the number back to three, covering the robot area and the case erector deck. We conducted significant amounts of training and training development for employees working in that area to ensure that we had the right amount of skills in the area. We did some time analysis studies on how long it took to perform specific tasks and whether there was appropriate number of people in the area to perform those.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1254

Your answer there dealt with the regeneration project period, didn't it?‑‑‑It dealt with how we responded to things at any time. The training, for example, took place in the latter half of 2019.

PN1255

If I can ask you specifically about 30 April 2019? Mr Aspland told you, didn't he, that the new machinery wasn't working with the current manning levels?‑‑‑(Indistinct) in that email.

PN1256

I'm sorry, your answer broke up a little bit there, can I ask you to repeat that?‑‑‑Yes, he sent an email stating that.

PN1257

That was while the 2019 enterprise agreement was being negotiated, wasn't it?‑‑‑Yes, that's correct.

PN1258

Yes. And do you accept that that is part of the AMWU negotiators effort to set crewing levels in the appendix profiles?‑‑‑I believe that Leigh wanted to raise that, but the direction of the negotiations was very clearly led by Mr Kenna and Ms McCarthy and at no point did they take up Leigh's point during negotiations.

PN1259

Leigh Aspland, at the time, was an AMWU delegate, wasn't he?‑‑‑That's correct.

PN1260

Ross Kenna, at the time, was an AMWU delegate, wasn't he?‑‑‑That is correct.

PN1261

So they were both equal participants in the negotiation process, weren't they?‑‑‑I would disagree that - they played different participatory roles in the negotiations that I - that I was at.

PN1262

I put it to you that Mr Kenna specifically sought set manning levels, in the appendix profiles, for the 2019 EBA, that's correct, isn't it?‑‑‑I disagree with that.

PN1263

Thank you. I put to you that you know full well that employees wanted to set crewing levels in the EBA, didn't you?‑‑‑I can't tell you what all employees thought.

PN1264

Well, can we agree that you were told, in photo 1, that employees wanted to set crewing levels, that's correct, isn't it?‑‑‑I was told, in photo 1, that the AMWU raised a claim around setting manning levels in the plant.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1265

You were told, in an email from Leigh Aspland, on 30 April 2019, that he wanted to set crewing levels in the potato packing area, weren't you?‑‑‑I was told that he wanted to set half an hour aside, inside of the EBA negotiations, to discuss it.

PN1266

I think that answer is not directly dealing with the question, so if I can ask you again, and perhaps if I can address you to the question itself. You were told, in an email on 30 April 2019, that Mr Aspland, an AMWU shop steward and negotiator, wanted to set manning levels for the potato packing area, weren't you?‑‑‑Can you tell me the page number in the court book so I can specifically reference what he said?

PN1267

Page 117.

PN1268

MS STOJANOVA: Deputy President, I believe page 117 is the respondent's - excuse me, my fault.

PN1269

THE WITNESS: He said as he would like to meet with me regarding the manning levels in the packing room.

PN1270

MR WAINWRIGHT: Yes, he does say that. Did you meet with him - - -?‑‑‑Not specifically as a result of this email, no.

PN1271

Do you see there, he says to you, 'The new machinery is not working with the manning levels we have'?‑‑‑Yes, I do see that.

PN1272

Do you agree with me that it's logical that if a negotiator tells you that the manning levels in the potato packing area are not working with the new machinery that he is seeking to set improved manning levels in that very area?‑‑‑During every negotiation the union would say they were interested in seeking safe manning levels throughout the plant, as opposed to specific numbers of employees in specific areas of the plant.

PN1273

I'm sorry, Mr McCain, I have to suggest again that you're avoiding answering the question. I'm not asking you about walking and chewing gum at the same time, we can negotiate set manning levels and safe manning levels at the same time. You've agreed that the negotiators were capable of doing that, and I fully accept that you're capable of doing that. What I'm asking you is about the specific email, from Mr Aspland, on a specific date, during the negotiations, as we've established, telling you the new machinery is not working with the manning levels we have, and I'm asking you, is it not logical that when a negotiator says that to you, that you understand that he's seeking to set crewing levels in the potato packing area?

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1274

MS STOJANOVA: Objection. Is the question whether that is when it occurred, or is the question whether that is something logical that could hypothetically happen?

PN1275

MR WAINWRIGHT: The question's been answered, the witness said, 'Yes'?‑‑‑I did not say yes.

PN1276

Sorry, Mr McCain, I must have misheard. I press the question, your Honour.

PN1277

THE DEPUTY PRESIDENT: I'm having trouble following what the question was, because of the discussion that followed. So what was the question again?

PN1278

MR WAINWRIGHT: So, Mr McCain, you have page 117 before you, of the court book?‑‑‑Yes, I do. Yes.

PN1279

Thank you. And I'm directing you to the final words of the first paragraph?‑‑‑Yes.

PN1280

(Indistinct) after your regeneration project, that's correct, isn't it?‑‑‑Yes, it is.

PN1281

You agree that at this stage, 30 April 2019, negotiations are ongoing, that's correct, isn't it?‑‑‑Yes.

PN1282

You're the lead negotiator, that's correct, isn't it?‑‑‑I was the co-lead negotiator.

PN1283

With Mr Munstega?‑‑‑Yes.

PN1284

You agree that Mr Aspland is an AMWU negotiator?‑‑‑Yes, I do.

PN1285

Do you agree that Mr Aspland is saying to you that, 'The new machinery is not working with the manning levels we have'?‑‑‑I agree he is saying that, yes.

PN1286

You understood him to be seeking to set manning levels in the new EBA, didn't you?‑‑‑No, because every discussion in the negotiations was about safe manning levels.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1287

I put to you that you understood that he was seeking to set manning levels in the EBA?‑‑‑That's not my recollection or understanding.

PN1288

I put to you that you knew full well that employees wanted 11 staff members per shift, in the potato packing area?‑‑‑I can't tell you want all employees wanted.

PN1289

I'm not asking you to tell me what they wanted, I'm asking you whether or not you knew that was what they wanted?‑‑‑I can't tell you what - I didn't know - I can't tell you what the collective of all of the employees wanted, because we didn't sit down and interview every employee.

PN1290

No. Those employees elected representatives, didn't they?‑‑‑Correct.

PN1291

One of whom was Mr Aspland, wasn't it?‑‑‑Yes.

PN1292

So through their representatives you knew that the employees wanted 11 staff members in the potato packing area, didn't you?‑‑‑No, I did not. Every negotiation was around safe manning levels in the negotiations. Sorry, my wife has just entered the room here with my power cord for my laptop, thank you. She's leaving now.

PN1293

Thank you. Are you okay to proceed, Mr McCain?‑‑‑Yes, I was just noticing my battery was getting low, so I needed that to be brought up to me.

PN1294

I can give you all the time you need?‑‑‑Yes, I'm good.

PN1295

Thank you. I put it to you that you knew full well that AMWU negotiators and Joy McCarthy and Ross Kenna both sought to set crewing levels in the 29 agreement?‑‑‑I disagree with that.

PN1296

I put it to you that it was Michelle Owen who proposed changing 'manning' to 'crewing', in clause 15 of Appendix A, that's correct, isn't it?‑‑‑I disagree with that. She agreed to it once we proposed it, but I made the change.

PN1297

Okay. It was your idea?‑‑‑Yes.

PN1298

To change Appendix 1?‑‑‑To change 'manning' to 'crewing', throughout the document.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1299

It was your idea, if we can be specific, to change 'manning', at clause 16 of Appendix 1, in the 2016 EBA, to 'crewing' in clause 16 of Appendix 1, in the 2019 EBA?‑‑‑That is correct, yes.

PN1300

In doing so, you knew that there were 11 staff members allocated to the potato packing crew, in clause 16 of appendix 1, in the draft 2019 EBA, didn't you?‑‑‑Sorry, I got lost in that question.

PN1301

Okay. Well, let me take you to the page. So if I can ask you to turn to page 300 - I withdraw that and if I can ask you to turn to page 299, first of all?‑‑‑Yes.

PN1302

Do you have that, Mr McCain?‑‑‑Yes, I do.

PN1303

So in the heading of clause 16, that's the change that you made, do you agree?‑‑‑Yes, I agree.

PN1304

It was your idea and not Michelle Owens' that's correct, isn't it?‑‑‑That's my recollection, yes.

PN1305

And is it your evidence that in doing so that you completely ignored that underneath that heading there's a dot point, 'Potato packing, 11 roles'?‑‑‑Yes, I see that there and we did not make a change to it because we felt it had already been changed, under clause 16.2.

PN1306

But you knew that you were negotiating a new agreement, didn't you?‑‑‑Yes, I did.

PN1307

Yes. Deputy President, if I can have a moment just to check with my instructors?

PN1308

THE DEPUTY PRESIDENT: Yes.

PN1309

MR WAINWRIGHT: Mr McCain, in terms of the grading room in the potato packing area, that's attached to the tote room, isn't it?‑‑‑It's the - yes, it is attached to the tote room.

PN1310

The temperature in the tote room is lower than the temperature in the grading room, is that correct?‑‑‑It was, during my time in Ballarat, yes.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1311

So in terms of the - and the grading room operator also operates in the tote room, that's correct, isn't it?‑‑‑They do go into the tote room, from time to time, yes.

PN1312

Is it your evidence that the change in the cold breaks impacted on the grading room operators who had duties in the tote room?‑‑‑No, it didn't, because under normal operations they wouldn't spend sufficient time in that area to be eligible for the cold breaks. They were in and out, usually within less than a minute.

PN1313

In terms of - we've seen correspondence from Leigh Aspland to yourself, was Mr Aspland the only shop steward writing to you during that period?‑‑‑I - I'm sure I probably received other emails from other delegates during that time period, on a variety of subjects. Yes.

PN1314

I asked you questions about the realisation of your vision in the regeneration project. If I could touch on that a little bit more, is it the case that sensors that had been installed were not working and were jamming?‑‑‑I don't know specifically which sensors. There are a large number of sensors throughout the plant and, occasionally, some of them don't work and then we work on fixing them. I'm not aware of one that continuously failed to - failed to operate.

PN1315

Is it the case that the regeneration project had a vision of three robots in the potato packing area?‑‑‑I believe there were four robots in the potato packing area.

PN1316

How many of them were introduced successfully?‑‑‑Those robots had existed for long before the regeneration.

PN1317

I put it to you that Ms McCarthy attended each of the negotiation meetings, that's correct, isn't it?‑‑‑It's not my recollection.

PN1318

I put to you that Mr Kenna attended each of the negotiating meetings, leaving only one meeting early, that's correct, isn't it?‑‑‑That is not my recollection. We frequently had to revisit issues that were discussed in Mr Kenna's absence, because Mr Kenna would return at the next meeting and disagree with the progress that had been made at previous meetings.

PN1319

Deputy President, those are all of my questions.

PN1320

THE DEPUTY PRESIDENT: Thank you. Just before we go to re‑examination, I have some questions.

*** BRIAN PEARSON MCCAIN XXN MR WAINWRIGHT

PN1321

Mr McCain, you were asked about the approval process for the 2019 enterprise agreement, and information provided to the employees, about that agreement, when they were going to vote, do you recall that?‑‑‑Yes, I do.

PN1322

Do you have any recollection of the nature of the information provided, in terms of documentary information?‑‑‑My recollection is that there was, obviously, the agreement, but that there was - I believe that the document - I'll just have to have a look at the court book to find the reference to it. I think it's, let me have a look, page 242. Yes, my recollection is that the documents shown on page 242 and 243 was shared in some - in some form, with the members. That's my recollection. But to be sure, I would have to go back and check my records.

PN1323

All right. I might just ask my associate to share on the screen a document. Some or all of you might have familiarity, maybe none of you have familiarity with it, but it's a pdf document. Now, this document formed part of the documents that were filed by McCain, when application was made to the Commission for the approval of the 2019 agreement and it was included as part of the explanation provided to the employees. So I'll ask my associate just to sort of slowly scroll down that document.

PN1324

MR WAINWRIGHT: Deputy President, might I also ask that it be emailed to the advocates?

PN1325

THE DEPUTY PRESIDENT: Yes. I'll do that in a moment, but I just want to scroll down and, firstly, ask Mr McCain whether he has a recollection or is familiar with his document. Not so much the content, at this point, but just whether he recalls this sort of a document being made available to employees?‑‑‑I'm sorry, I don't recall whether this was shared with employees.

PN1326

Okay, that's all right. I'll ask my associate to email it to the - to parties. If Mr McCain's not familiar with that document I don't have any questions about it. It may be that the representatives want to review that document during the course of today and make submissions on it.

PN1327

All right. Just a moment, please? No, that was the only question I had.

PN1328

Mr McCain, Ms Stojanova may have some questions now for you, in re‑examination, so I'll ask her to address those now, please. Thank you.

RE-EXAMINATION BY MS STOJANOVA [9.38 AM]

*** BRIAN PEARSON MCCAIN RXN MS STOJANOVA

PN1329

THE DEPUTY PRESIDENT: Ms Stojanova, are you ready to proceed with re-examination?

PN1330

MS STOJANOVA: Yes, Deputy President.

PN1331

Mr McCain, I've just got a couple of questions for you. I'll just return to some of the documents that you were taken to, in the court book, during your cross-examination. So if we have a look at page 217 of the court book, and I might just share my screen?‑‑‑Yes, I can see that page.

PN1332

Mr McCain, you've gotten there a little faster than I have?‑‑‑Sorry.

PN1333

I'll just share my screen now, so that the visuals are there for everyone to see. I'll also just flip that around for you. So, Mr McCain, we're back at page 217 of the court book, we're in the Regeneration Project Changes document, and I'm interested in this table. No, excuse me, Mr McCain, I'm not sure if you were - sorry, I don't recall if you were taken to this page, specifically, when you were taken to this document, but can you speak to what you see on the screen, on page 217?‑‑‑This shows the number of employees working in various parts of the plant at the time that we started the consultation, before the regeneration project for the major change.

PN1334

Does part of this document list the number of roles per team?‑‑‑Yes, it shows the number of roles per team and by area of the plant.

PN1335

How many roles per team are there, for potato packing?‑‑‑Eleven.

PN1336

Now, I'm going to go back to a document that you were taken to, I do recall, in this court book, page - Mr McCain, you may be - actually, I won't make a comment, I'll just go back to the document. So this is this email here, from Leigh Aspland, which you were cross‑examined on. Mr McCain, did this email lead to the contents of this email becoming a claim by the AMWU, in the negotiations for the proposed 2019 enterprise agreement?‑‑‑There was no response to this email, from myself or any member of McCain or the AMWU and it didn't change the agenda items for discussion at the negotiations. So, no, I don't - I don't believe that it became another claim within the negotiations.

*** BRIAN PEARSON MCCAIN RXN MS STOJANOVA

PN1337

Mr McCain, did this email from Leigh Aspland lead to agreement between the negotiating parties, for the 2019 enterprise agreement, to revert the current - the crewing levels, as they were then, it should have been eight. Did this email, from Leigh Aspland, lead to agreement between the negotiating parties, to revert from those current crewing levels back to the crewing levels listed in clause 16.1 of the proposed 2019 enterprise agreement?‑‑‑No, it did not. And if you look at the document that was signed by Ms McCarthy and McCain Foods, about the claims, it shows which items had a cost attached to them. As you can see, the claim number 6, around set manning levels, does not have a cost attached to it because it did not, in our opinion or the AMWU's opinion, at the time, have a cost because there was no change to the number of employees working in the area.

PN1338

Mr McCain, did this email from Leigh Aspland lead to negotiations, between the negotiating parties, for the proposed 2019 enterprise agreement, McCain and the AMWU, did this email lead to negotiations between the negotiating parties on crewing levels in clause 16 of appendix 1 of the 2019 enterprise agreement?‑‑‑No, it did not.

PN1339

Mr McCain, did the AMWU raise reverting current crewing levels, as they were at the time, eight, did the AMWU raise reverting current crewing levels back to the crewing levels listed in clause 16 of Appendix 1 as a claim during the negotiations for the 2019 enterprise agreement?‑‑‑No, they did not.

PN1340

Did the AMWU include, in their list of claims, or the demands, for the proposed 2019 enterprise agreement, an increase or a change to actual crewing levels, as they were prior to the commencement of the 2019 enterprise agreement?‑‑‑No, they did not.

PN1341

Did the AMWU include, in their list of demands, an increase or change to actual crewing levels, pursuant to clause 16 of Appendix 1 of the proposed 2019 enterprise agreement?‑‑‑No, they did not.

PN1342

Did the AMWU demand, from McCain, a specific number of people to be employed in specific parts of the plant?‑‑‑No, they did not.

PN1343

Did the AMWU demand - did the AMWU and McCain - sorry, I'll start the question again. Did the AMWU and McCain management negotiate the specific number of employees to be employed in specific parts of the plant?‑‑‑No, we did not.

PN1344

Did the negotiations between the AMWU and McCain, for the 2019 enterprise agreement, set crewing levels in any area?‑‑‑No, I don't believe it did.

PN1345

Did the negotiations between the AMWU and McCain, for the 2019 enterprise agreement, set 11 staff per shift in the potato packing area?‑‑‑No, I don't believe it did.

*** BRIAN PEARSON MCCAIN RXN MS STOJANOVA

PN1346

Did the negotiations between the AMWU and McCain, for the 2019 enterprise agreement, set 11 staff per shift in the potato packing area pursuant to the disputed clause 16, in Appendix 1 for the 2019 enterprise agreement?‑‑‑Sorry, can you repeat that question again.

PN1347

I know the question was very long, I'm sorry. Did the negotiations between the AMWU and McCain, for the proposed 2019 enterprise agreement, set 11 staff per shift in the potato packing area through clause 16 of Appendix 1 of the - - -?‑‑‑No, I don't believe they did.

PN1348

Did the AMW, during negotiations for the proposed 2019 agreement, demand 11 staff per shift in the potato packing area?‑‑‑No, I don't believe they did.

PN1349

Was there agreement, between McCain and the AMWU, to change the current crewing levels, as they were eight in the potato packing area, to revert back to the crewing levels listed in clause 16.1 of Appendix 1 of the 2019 enterprise agreement, which is 11?‑‑‑No, there was no agreement and there was no change that took place during the remainder of my time in Ballarat.

PN1350

So, Mr McCain, can you explain to the Deputy President what McCain management's position was, in relation to the crewing levels listed in clause 16.1 of Appendix 1 of the 2019 enterprise agreement?‑‑‑Our position was that those were the crewing levels that were set when that appendix was first negotiated. That under clause 16.2 we had the right to change those numbers on the - based on investment and changes to process and technology within the facility that we did through the consultation started in 2017, and that had taken place previously in other areas of the plant, such as put away as well, where numbers had changed from that initial agreement.

PN1351

Was that McCain's position, during negotiations for the proposed 2019 enterprise agreement?‑‑‑That was our position was that because we had done the consultation through clause 16.2 that 16.1 was, effectively, changed through that process.

PN1352

I'm not sure if I'm asking you to, or if this question might make you feel like you're repeating yourself, but it's the last one that I should have on this topic. Did McCain management - did McCain, during the negotiations for the proposed 2019 enterprise agreement, did McCain agree to revert back to the crewing levels listed in clause 16.1 of Appendix 1 of the proposed 2019 enterprise agreement?‑‑‑No, we did not.

*** BRIAN PEARSON MCCAIN RXN MS STOJANOVA

PN1353

Mr McCain, I'll just take you to the text of clause 1 of Appendix 1 of the 2019 enterprise agreement, and I do apologise. While I - - -

PN1354

MR WAINWRIGHT: Can I object to that? This witness was not asked about clause 1 of Appendix 1.

PN1355

MS STOJANOVA: That's true, actually, I will withdraw those questions.

PN1356

Now, Deputy President, in relation to the document that I believe your associate may have sent through, and I'm interested in Mr Wainwright's view as well, would it be prudent for there to be - actually, excuse me. So, Deputy President, I'd like to - is it possible for me to share my screen and to share the document that your Chambers has distributed to the associate, so that I can ask Mr McCain some questions about that document? You're on mute.

PN1357

MR WAINWRIGHT: Deputy President, I - - -

PN1358

THE DEPUTY PRESIDENT: Just a moment. I asked Mr McCain whether he was familiar with the document, or he was aware of it, and his answer was, 'No', so I didn't proceed to ask any further questions on it. So, to that extent, I don't know how it can arise for re-examination.

PN1359

The purpose of forwarding it to the parties is that given the path that's been taken during these proceedings, they may want to say something about that document. As I mentioned before, it's from the Commission's file relating to the approval process for the 2019 agreement and it was submitted by McCain's, as part of that process, together with form F17 and the information about the vote and other attachments.

PN1360

Now, we can deal with that, but I make the observation, in any event, that the statutory declaration, in support of that application for approval, was not made by Mr McCain, it was made by Mr Braybrook.

PN1361

I'm proceeding on the basis that when it came to the process of obtaining approval for the agreement, Mr McCain delegated that to others within the organisation, and I can see him nodding to that extent. So I'm not sure that he needs to be taken to this document, in re‑examination.

PN1362

MS STOJANOVA: Thank you, Deputy President, I've got nothing further.

*** BRIAN PEARSON MCCAIN RXN MS STOJANOVA

PN1363

THE DEPUTY PRESIDENT: Thank you.

PN1364

Mr McCain, thank you very much for your attendance and your evidence today. You're excused from further attendance. You're, of course, welcome to observe any part of the balance of this proceedings. But if you do so, I just ask that you have your camera and microphone off. It may be that we're going to be taking a break at this point in any event. Other than that, I thank you for your evidence?‑‑‑Thank you, Deputy President, and thanks for accommodating the time difference. Thank you.

<THE WITNESS WITHDREW [9.53 AM]

PN1365

THE DEPUTY PRESIDENT: Now, in terms of where we're going, I note there's two further witnesses for McCain's. For my part, I have some time before I need to adjourn. Would it be convenient to deal with, and this is totally dependent upon the extent of any cross‑examination and re‑examination, but - and, of course, their availability. Ms Nebozuk's witness statement seems comparatively short. That's not to say the substance of it may take some time, but I just wanted to float whether or not there was time to have her evidence before we adjourn, at approximately quarter past 10, or so?

PN1366

Mr Wainwright?

PN1367

MR WAINWRIGHT: I foresee that my cross‑examination would take more time than you have available, Deputy President.

PN1368

THE DEPUTY PRESIDENT: All right. Well, we'll steer on the safe side of things there. All right, so we'll adjourn now and, to be on the safe side, we'll resume at 12 midday. So if the - Ms Nebozuk and Mr Carter are available then, we will take their evidence there. Depending on what time they finish, or their evidence finishes, my practice is to provide the parties with a short adjournment prior to hearing final submissions. So that may work into either a lunch break or we'll just adjourn once the evidence is complete and provide the parties with a short period to organise their notes and what not for final submissions.

PN1369

All right, if there's nothing further that we need to attend to now, we'll adjourn the Commission until 12 midday, please.

SHORT ADJOURNMENT [9.56 AM]

RESUMED [12.02 PM]

*** BRIAN PEARSON MCCAIN RXN MS STOJANOVA

PN1370

THE DEPUTY PRESIDENT: Thank you. Shall we proceed with the next witness, please?

PN1371

MS STOJANOVA: Yes, Deputy President, I call Desmond Carter.

PN1372

THE DEPUTY PRESIDENT: Thank you.

PN1373

MS STOJANOVA: Mr Carter, you prepared two witness statements - - -

PN1374

THE DEPUTY PRESIDENT: Sorry, just a moment. Mr Carter, we'll just take an affirmation from you first. My associate will do that and then Ms Stojanova will take your evidence‑in‑chief, thank you.

PN1375

THE ASSOCIATE: Mr Carter, please state your full name and address?

PN1376

MR CARTER: Yes. Desmond Stanley Carter, 1059 Ring Road, Mitchell Park.

<DESMOND STANLEY CARTER, AFFIRMED [12.03 PM]

EXAMINATION-IN-CHIEF BY MS STOJANOVA [12.03 PM]

PN1377

THE DEPUTY PRESIDENT: Thank you, Ms Stojanova.

PN1378

MS STOJANOVA: Mr Carter, you prepared two witness statements for these proceedings?‑‑‑Yes, I did.

PN1379

One of those witness statements was titled, 'Statement of Desmond Carter'?‑‑‑Yes, it was.

PN1380

Could I please ask you to state your full name, professional address and occupation, for the record?‑‑‑Yes. Desmond Stanley Carter, my professional address is 1059 Ring Road in Mitchell Park. Sorry, what was the last question?

PN1381

Your occupation, Mr Carter?‑‑‑HR specialist in McCain.

PN1382

Mr Carter, I'm going to share my screen now and I'm going to take you to page 244 of the court book. Can you see the court book on the screen now, can you see where I'm sharing that?‑‑‑Yes, I can.

*** DESMOND STANLEY CARTER XN MS STOJANOVA

PN1383

Is this your witness statement titled, 'Statement of Desmond Carter?‑‑‑Yes, it is.

PN1384

Can I confirm that it is 16 paragraphs long?‑‑‑Yes, it is.

PN1385

And that you made this statement on 12 May 2022?‑‑‑That's correct, yes.

PN1386

Mr Carter, do you have any corrections that you wish to make to that statement?‑‑‑No, I don't.

PN1387

Mr Carter, do you confirm that, to the best of your knowledge and belief, that statement is true and correct?‑‑‑Yes, I do.

PN1388

Deputy President, I tender Mr Carter's witness statement, titled, 'Statement of Desmond Cater' that's being shared on the screen now, and the accompanying exhibits.

PN1389

THE DEPUTY PRESIDENT: Thank you. I will mark the witness statement - - -

PN1390

MR WAINWRIGHT: Deputy President?

PN1391

THE DEPUTY PRESIDENT: Sorry, Mr Wainwright. Yes?

PN1392

MR WAINWRIGHT: Thank you. Deputy President, I object to clause 15 or paragraph 15 of the witness statement, being that those are not matters known to the witness. He says, 'I am informed'. Essentially, Mr Carter is seeking to give evidence on statements made by others, to establish the truth of those statements. He should only give evidence as to what he knows.

PN1393

THE DEPUTY PRESIDENT: Well, that's a submission you can make. I'm not going to strike it out, you can make submissions on it.

PN1394

MR WAINWRIGHT: Thank you, Deputy President.

PN1395

THE DEPUTY PRESIDENT: Thank you. Subject to that, and any matters in cross‑examination, any further objections?

*** DESMOND STANLEY CARTER XN MS STOJANOVA

PN1396

MR WAINWRIGHT: No, Deputy President.

PN1397

THE DEPUTY PRESIDENT: Thank you. I'll mark the witness statement of Desmond Carter, which is dated 12 May, comprises 16 paragraphs and three attachments, and appears at page 244 of the court book, as exhibit R4.

EXHIBIT #R4 WITNESS STATEMENT OF DESMOND CARTER, WITH THREE ATTACHMENTS, DATED 12/05/2022 (COMMENCING AT PAGE 244 OF COURT BOOK)

PN1398

Thank you.

PN1399

MS STOJANOVA: Mr Carter, I just have a couple of additional questions for you. What are the current crewing levels in the potato packing area?

PN1400

THE DEPUTY PRESIDENT: Sorry, I don't mean to interrupt the flow, but were you going to deal with the second witness statement?

PN1401

MS STOJANOVA: No, I won't be tendering the second witness statement.

PN1402

THE DEPUTY PRESIDENT: You won't be tendering that, thank you.

PN1403

Thank you, sorry.

PN1404

MS STOJANOVA: No, thank you for the reminder.

PN1405

Mr Carter, what are the current crewing levels in the potato packing area?‑‑‑They are nine.

PN1406

Mr Carter, in yesterday's hearing there was another witness that gave evidence that crewing levels in the potato packing area were 10 people during 2021, what do you say in response to that?‑‑‑Okay. There was a period, during 2021, where there was a temporary increase of one person in that working area. The purpose of that was on the back of a training needs analysis and the recognition that there was an opportunity to increase our casual skill depth, so we put some people through that area to increase that skill within that area of the plant. Then that person was removed, once the business was comfortable with the depth that had been achieved.

*** DESMOND STANLEY CARTER XN MS STOJANOVA

PN1407

So was your evidence that that worker was a casual person?‑‑‑Yes, sorry. That person that was working there, there was several people that would have worked through that area throughout the year and they were all casuals and they were all on a training opportunity. It wasn't a permanent, fixed additional person to the area.

PN1408

So is your evidence - so did you just say that McCain - so did McCain understand that those casual workers had changed the set crewing levels in the potato packing area?‑‑‑Sorry, can you just rephrase that question for me a little bit?

PN1409

MS STOJANOVA: Yes, I will.

PN1410

In introducing those casual workers, had McCain changed the set crewing levels in the potato packing area?‑‑‑No. So the crewing levels were always nine. The additional was purely from the basis of the need to increase our skill within the area and it was a temporary measure.

PN1411

To your knowledge, for how long had the crewing levels been nine, or since when?‑‑‑Yes. So as per my statement, the flexed between eight and nine, initially, after a PIN that was administered by Ross Kenna. Then there was a further PIN issued, after that, where we were asked to have nine people for all products, and that was from approximately - I think it was around April 2021.

PN1412

Are these casual workers still working in the potato packing area?‑‑‑Sorry, it's probably - those people may work, at times, within that area, but they will be within the nine people crew. So there's not an addition.

PN1413

So when did McCain remove the additional casual labour?‑‑‑Yes. My understanding, that was - - -

PN1414

Why did McCain do that?‑‑‑Because we'd met the required skill depth within our casual pool

PN1415

Deputy President, that is the evidence for this witness.

PN1416

THE DEPUTY PRESIDENT: Thank you.

PN1417

Mr Carter, Mr Wainwright, who's the advocate for the union in this hearing, may have some questions now for you, in terms of cross‑examination, thank you?‑‑‑Okay, no problem.

*** DESMOND STANLEY CARTER XN MS STOJANOVA

CROSS-EXAMINATION BY MR WAINWRIGHT [12.10 PM]

PN1418

MR WAINWRIGHT: Good afternoon, Mr Carter?‑‑‑Hello, Mr Wainwright.

PN1419

Do you have the court book with you?‑‑‑I've got it on my screen just here, yes.

PN1420

Okay. If I can ask you not to access anything else on your screen, other than the court book, please?‑‑‑Yes, of course.

PN1421

Can you please turn to, not turn to, could you please go to page 73 on your court book?‑‑‑Yes, just give me a moment. Yes.

PN1422

When I ask you to go to things, just let me know when you're ready?‑‑‑Yes, I'm there now, Mr Wainwright.

PN1423

Take as long as you need. In terms of looking at that structure: case deck, floor operators, packing machine operators, floor operators, grading room 1 operator, is it your evidence that that structure is an accurate representation of the current potato packing area?‑‑‑So there's currently nine people in the potato packing area, and it is broken up by four, four and one.

PN1424

Yes. You answered some questions to my friend, in terms of these nine staff members, how many of those staff members are casual?‑‑‑That's a very difficult question to answer because it really would depend on the crew on any day that's there. So there would be a mixture of, Mr Wainwright.

PN1425

A mixture, that's right. At McCain's Ballarat you have a high proportion of casual labour, don't you?‑‑‑We have a pool of casual employees that gets filtered throughout the site, yes. It depends on your definition of 'high', I suppose.

PN1426

What's the number of the current pool?‑‑‑There's approximately, and I think it would be just less that 200 casual employees, but that's across the site, not necessarily for potato.

PN1427

Some of those 200 casual employees have been casuals of McCain's for more than 20 years, haven't they?‑‑‑Yes, that's correct.

*** DESMOND STANLEY CARTER XXN MR WAINWRIGHT

PN1428

Yes. So when we look at nine, in the potato packing area, the casuals are indistinguishable from the permanent workforce, aren't they?‑‑‑I don't understand your question, Mr Wainwright, I'm sorry.

PN1429

Okay. So if I'm working in the potato packing area, I'm on the case deck, and I'm a permanent employee, I don't look or act or work any differently to a casual employee who's on the packing machine, do I?‑‑‑No. So they're all our employees and when they work in that area they complete the same tasks, that's correct.

PN1430

So do the casuals, in terms of uniform, do they have a big C on their uniform, or is there any way to see that they're a casual?‑‑‑No, Mr Wainwright.

PN1431

So in terms of this casual that you gave evidence about, who was allocated to the grading room in 2021, if I'm on the case deck can I tell, in any way, that they're a casual?‑‑‑I'm sorry, Mr Wainwright, in terms of when they've done the rostering, the managers and the people working in those areas would be well aware of who the casual employees are.

PN1432

How?‑‑‑How? Because when they do their roster they request casual labour, and if they were doing training, they would have requested the training and casual employees would have been allocated to that area. The shift managers are well aware of who their permanent employees are, that they work with on a daily basis.

PN1433

I'm sure the shift managers are, I was asking, from the perspective of an operator on the case deck. A permanent employee, who is an operator on the case deck, I look in the grading room, there's two people there, I don't know if they're permanents or casuals, do I?‑‑‑I'm sorry, Mr Wainwright, I'm struggling to understand whose perception you're asking me to give.

PN1434

Okay. So you have operators on the case deck?‑‑‑Yes. Sorry, a full-time operator, just to be clear for myself?

PN1435

Well, your casuals are full-time. A permanent employee who is an operator, on the case deck. They're working a shift. There are two people working shifts in the grading room, that operator on the case deck is not to know the casual or permanent status of those employees, would they?‑‑‑I would probably disagree. I think most of them would know who's casual and who's permanent in that area.

*** DESMOND STANLEY CARTER XXN MR WAINWRIGHT

PN1436

How?‑‑‑Because they work with each other every day. So those that are on shift, work with each other on every shift. The casuals are there, ad hocly, based on the requested allocation. Not to mention, I guess to your point earlier, some of the casuals have been casuals for a long period of time, so they know who they are.

PN1437

In terms of the removal of the second grading room operator, there's no way for the rest of the team to know why that person was removed, is there?‑‑‑Sorry, Mr Wainwright, I never said there was a second grading room operator. I suggested that there was an additional person in the packing room, for training.

PN1438

In terms of the removal of the additional person in the packing room, there's no way for the other operators in the crew to know what that person was removed, is there?‑‑‑I can't speak to what correspondence was had, or conversations were had between the management and those on the floor at the time.

PN1439

And you're representing management today, did you correspond with the workforce about the removal of that operator?‑‑‑I directly did not do that, but that would not be part of my role, Mr Wainwright, sorry.

PN1440

Do you know of anyone else who corresponded with the workforce about that?‑‑‑Again, I can't speak for things that I wasn't present for.

PN1441

You're allowed to say you don't know, so I was just asking you, do you know of any correspondence coming from McCain's management to the packing room crew about the removal of this operator?‑‑‑Nothing that I'm directly aware of, no.

PN1442

I put it to you that there was no communication to the packing room crew about the removal of this operator, at the start of 2022, is that correct?‑‑‑I couldn't speak to that.

PN1443

Can I ask you about the temperature of the grading room? Are you aware of issues relating to the temperature settings of the grading room?‑‑‑No.

PN1444

Can I ask you to turn to page 67 of the court book, please?‑‑‑Yes. Yes, I'm there now, Mr Wainwright.

PN1445

Thank you. Are you familiar with this document?‑‑‑No, I'm not.

PN1446

Are you aware of a break schedule being distributed to members of the potato packing area?‑‑‑I'm not. I'm aware that there is a break schedule, but I'm not aware of the specifics or the detail of that schedule.

PN1447

Are you aware of the accommodation that's made for cold breaks, in that break schedule?‑‑‑Mr Wainwright, I'm only aware of what's in the EBA.

*** DESMOND STANLEY CARTER XXN MR WAINWRIGHT

PN1448

Well, if we could turn to the cold break provisions of the EBA, I'll give you a page reference?‑‑‑Yes, please.

PN1449

I believe it's clause 20.14, it's on page 273?‑‑‑Yes, I'm there, Mr Wainwright.

PN1450

You can see that at clause 20.14?‑‑‑Yes, I can.

PN1451

There's standards, in terms of warmth, or lack of warmth, 9 degrees and 1 degree, zero and 30 degrees, do you see those sections there?‑‑‑Are your referring to 20.14.1(b)?

PN1452

I certainly am?‑‑‑Yes.

PN1453

Okay. Are you aware of changes in the settings of the grading room that triggered those provisions?‑‑‑No, Mr Wainwright?

PN1454

So you're broadly aware of the provisions of the agreement, but not how they operate specifically to potato packing area and, in particular, the grading room?‑‑‑As I said, I'm aware of the provisions that are within the agreement, I'm not an operational expert around how that area operates, no.

PN1455

Thank you. Can I ask you to turn to page 54 of the agreement, of the court book, sorry?‑‑‑Court book, sorry. Of course. Yes.

PN1456

Do you see we have a risk-based analysis, dated 15 February 2022?‑‑‑Yes. Sorry, I was just rotating the screen. Yes, I can see that.

PN1457

You received this document at the time, didn't you?‑‑‑No.

PN1458

Can I ask you then to turn to page 246 of the court book?‑‑‑Of course. Yes, Mr Wainwright.

PN1459

Can I ask you to have a look at the evidence, at paragraph 16?‑‑‑Yes, Mr Wainwright.

*** DESMOND STANLEY CARTER XXN MR WAINWRIGHT

PN1460

Your evidence, in relation to what you termed the temporary casual is in conflict with that evidence, at paragraph 16, isn't it?‑‑‑That paragraph was in reference to the permanent structure within that area. I wasn't referencing any training that was required, as part of the business, during a period of time.

PN1461

Okay. What you refer to as training, again how can that be distinguished from what I would refer to as work, in the grading room area?‑‑‑So I guess that's the nature of having an additional person, so they can be freed up to learn and have the opportunity to train in those areas, rather than being set on a particular machine or task.

PN1462

You agree that they're learning by doing, aren't they?‑‑‑That's part of it, yes. There's also some other parts to it, around, I guess, learning through operating procedures, et cetera.

PN1463

Yes. But, essentially, they're on the job, they're working in the grading room, the same as the other operator, that's correct, isn't it?‑‑‑They are working in the packing area, whilst on training. If they're doing some training in the grading room, that could be the case but, generally, they're working in the packing area with the team, and part of that is to work in the area, yes.

PN1464

I'll ask you about paragraph 15, you referred to these events, on 15 August 2020, where were you employed on 15 August 2020?‑‑‑So I would have been the operations officer at that time, Mr Wainwright.

PN1465

Operations officer of what?‑‑‑McCain.

PN1466

Where?‑‑‑Sorry, I apologise. I think - yes, no - yes, that's correct, yes. That was just before I started my role as a HR specialist. So what you say, at paragraph 1 of the witness statement is that you were, since 1 September 2020, employed as a human resources specialist, at McCain's?‑‑‑Yes.

PN1467

I've asked you about 15 August 2020?‑‑‑Yes.

PN1468

Where were you employed then?‑‑‑Yes. So that was prior to my time as a human resources specialist, I was an operations officer at McCain, and I was responsible for labour, across the site.

PN1469

All right. Including potato?‑‑‑Yes, potato was part of that, yes.

PN1470

I'm just going to check with my instructor, Deputy President. Those are all my questions, Deputy President.

*** DESMOND STANLEY CARTER XXN MR WAINWRIGHT

PN1471

THE DEPUTY PRESIDENT: Thank you.

PN1472

Ms Stojanova, anything in re-examination, please?

RE-EXAMINATION BY MS STOJANOVA [12.24 PM]

PN1473

MS STOJANOVA: Mr Carter, does McCain have set crewing levels in the potato packing area?‑‑‑Yes.

PN1474

What are the set crewing levels in the potato packing area?‑‑‑Nine.

PN1475

Is McCain's position, to your knowledge, that McCain's obligations, under the 2019 enterprise agreement - - -

PN1476

MR WAINWRIGHT: Deputy President, can I object. This witness was not asked about that. He wasn't present during the negotiations of the enterprise agreement. He's giving evidence about what he has put in his witness statement. He was not asked at all about those issues, in cross‑examination.

PN1477

MS STOJANOVA: I'm not asking about the negotiations for the 2019 enterprise agreement.

PN1478

THE DEPUTY PRESIDENT: Let's just get to the end of the question and then we'll see what it is asking, before Mr Carter gives an answer.

PN1479

MS STOJANOVA: Mr Carter, do your knowledge, does McCain understand that McCain's obligations, under the 2019 enterprise agreement, are satisfied by having a set crewing level of nine people in the potato packing area?

PN1480

MR WAINWRIGHT: Deputy President, I renew my objection.

PN1481

MS STOJANOVA: I know, Deputy President, that this witness was asked about the cold temperature clauses in the enterprise agreement, his understanding of the enterprise agreement. I'm asking him, in a way, the same question. I'm asking him a question about what he understands his obligations are.

PN1482

THE DEPUTY PRESIDENT: I'll just ask Mr Carter to hop out of the meeting room for a moment?‑‑‑Okay, no problem.

*** DESMOND STANLEY CARTER RXN MS STOJANOVA

PN1483

My associate will admit you back in, shortly?‑‑‑Okay, no problem.

<THE WITNESS WITHDREW [12.26 PM]

PN1484

THE DEPUTY PRESIDENT: If the question is going to what is his opinion of the interpretation of the EBA, or the obligations, I'm not really interested.

PN1485

MS STOJANOVA: It's not.

PN1486

THE DEPUTY PRESIDENT: All right. So what's the nature of the question you want to ask?

PN1487

MS STOJANOVA: If he understands, as a representative of McCain, that the crewing levels that he needs to put in the potato packing area are nine. He may be - that is a separate question from what the enterprise agreement requires. It's just does he understand he's (indistinct) his obligations, irrespective of what those obligations are, under the enterprise agreement.

PN1488

THE DEPUTY PRESIDENT: Mr Wainwright, to the extent he answers it, how is it objectionable?

PN1489

MR WAINWRIGHT: Well, firstly, it's objectionable, in that it's not relevant. He could have led evidence to that regard, about his - - -

PN1490

THE DEPUTY PRESIDENT: Get through relevance. He answers yes or he answers no, so how does it take the interpretative task any further?

PN1491

MR WAINWRIGHT: It doesn't, but I didn't cross‑examine on that point.

PN1492

THE DEPUTY PRESIDENT: All right. I've let examination‑in‑chief, cross‑examination and re‑examination flow reasonably freely, notwithstanding the objections that you've both made, from time to time. I hardly think this is a killer objection, I hardly think it's a killer question. I'd rather just get through the evidence.

PN1493

MR WAINWRIGHT: Yes, Deputy President.

PN1494

THE DEPUTY PRESIDENT: Can we please admit Mr Carter back into the hearing room.

<DESMOND STANLEY CARTER, RECALLED [12.28 PM]

RE-EXAMINATION BY MS STOJANOVA, CONTINUING [12.28 PM]

PN1495

THE DEPUTY PRESIDENT: Thank you. Please put the question?

PN1496

MS STOJANOVA: Mr Carter, is it your understanding, as a member of the HR team at McCain, that McCain's obligations, under the 2019 enterprise agreement, are satisfied by having a set crewing level of nine people in the potato packing area, at this time?‑‑‑Yes.

PN1497

In your cross‑examination you were asked questions about casual workers that were working in the potato packing area, broadly throughout 2021, do you recall those questions?‑‑‑Yes.

PN1498

Were these the same - is it your understanding that you were talking about the same casuals that you first discussed in examination-in-chief, the casuals that you said were put to work in the potato packing area to increase the casual skillset?‑‑‑Yes.

PN1499

Were there occasions when McCain had a casual worker in the potato packing area so that the total number of people in the potato packing area were 10, please, if you don't understand the question I can rephrase?‑‑‑Yes, I'm just not sure what you're asking, if you don't mind asking again?

PN1500

So were there occasions when McCain had the nine people that were part of the set crewing levels and then there was an additional casual worker, so that the number of people in the potato packing area were 10, 10 workers?‑‑‑Yes. So whenever there was the additional person, it was always for the purpose of training and upskilling.

PN1501

So were there occasions when there were more than nine people working in the potato packing area, because of the casuals working up their skillset?‑‑‑I'm so sorry, I don't fully understand the question. There was 10 people in there, throughout periods, but the additional person was always for the purposes of training. Are you asking if they had 10 people in there that wasn't training?

PN1502

No, no, that's what I was asking. That's what I was asking. So on those occasions when there were 10 people, did McCain put that tenth person on because McCain had made a decision to change the set crewing levels in the potato packing area?‑‑‑No.

*** DESMOND STANLEY CARTER RXN MS STOJANOVA

PN1503

So when that tenth person was there, was it McCain's understanding that McCain was still obliged to have nine people?‑‑‑Yes.

PN1504

Nine people as the set crewing level, in the potato packing area?‑‑‑Yes, that's correct.

PN1505

Okay, thank you, Deputy President, that concludes the examination of this witness.

PN1506

THE DEPUTY PRESIDENT: Thank you.

PN1507

Mr Carter, thank you for your evidence and your attendance. You're welcome to remain on the line and observe the balance of the proceedings, if you'd like. I just ask that if you do so, you have your camera off and your microphone on mute. But otherwise thank you for your attendance.

<THE WITNESS WITHDREW [12.31 PM]

PN1508

THE DEPUTY PRESIDENT: Are we ready for Ms Nebozuk?

PN1509

MS STOJANOVA: Deputy President, I'm just communicating with my instructor and we're trying to connect Ms Nebozuk. I believe that she was on standby, so she should be joining shortly, but I don't think she's in the - here she is.

PN1510

THE DEPUTY PRESIDENT: Thank you.

PN1511

Ms Nebozuk, it's Deputy President Clancy. If you're in the hearing room could you please turn on your camera and your microphone?

PN1512

MS NEBOZUK: Yes, Deputy President.

PN1513

THE DEPUTY PRESIDENT: Thank you. Good afternoon. The Commission is ready to hear your evidence in this case. The first thing that will happen is my associate will take an affirmation from you then your evidence will be led by Ms Stojanova. Then, after that, Mr Wainwright, who's the advocate for the union, will have some questions for you, in cross‑examination. So if you could just listen now my associate will take an affirmation. Thank you.

*** DESMOND STANLEY CARTER RXN MS STOJANOVA

PN1514

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

PN1515

MS NEBOZUK: My full name is Michelle Dawn Nebozuk, (address supplied).

<MICHELLE DAWN NEBOZUK, AFFIRMED [12.34 PM]

EXAMINATION-IN-CHIEF BY MS STOJANOVA [12.34 PM]

PN1516

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

PN1517

MS STOJANOVA: Ms Nebozuk, you've prepared a witness statement in this proceeding?‑‑‑I have, yes.

PN1518

Could I ask you to please state your full name, professional address and occupation, for the record?‑‑‑Michelle Dawn Nebozuk, occupation is employee services team lead, and professional address is 1059 Ring Road, Wendouree.

PN1519

Can I confirm that your witness statement is 10 paragraphs long?‑‑‑Yes.

PN1520

And that you made that statement on 27 May 2022?‑‑‑That's right.

PN1521

Ms Nebozuk, do you have any corrections that you wish to make to that statement?‑‑‑No, I don't.

PN1522

Ms Nebozuk, do you confirm that, to the best of your knowledge and belief, that statement is true and correct?‑‑‑Yes, it is.

PN1523

Deputy President, I tender Ms Nebozuk's witness statement.

PN1524

THE DEPUTY PRESIDENT: Thank you. Mr Wainwright, any objection?

PN1525

MR WAINWRIGHT: No, Deputy President.

PN1526

THE DEPUTY PRESIDENT: Thank you. I'll mark the witness statement of Michelle Nebozuk, which comprises 10 paragraphs and is dated 27 May 2022, as exhibit R5. Thank you.

*** MICHELLE DAWN NEBOZUK XN MS STOJANOVA

EXHIBIT #R5 WITNESS STATEMENT OF MICHELLE NEBOZUK DATED 27/05/2022

PN1527

Any additional matters, please?

PN1528

MS STOJANOVA: No, Deputy President, that is the evidence for this witness. I did just want to confirm, although Mr Wainwright may have been about to do this as well, Ms Nebozuk, do you have a copy of the court book with you, or will you need to be taken through, on the screen, to any part of the court book?‑‑‑Yes. Because I'm on leave, I don't have a copy with me.

PN1529

So let's just confirm - - -

PN1530

THE DEPUTY PRESIDENT: I can't imagine why not. Why wouldn't you want to be reading the court book while you're on leave?

PN1531

MS STOJANOVA: Deputy President Clancy takes all his court books when he goes on leave.

PN1532

Ms Nebozuk, can we confirm what you do have in front of you, so that Mr Wainwright knows what he needs to share on the screen for you, if he wants to take you to something?‑‑‑So I - basically the phone that I've got is what I've got with me. I did go back and have a look at my statement again this morning, because I did have a copy on my phone. So I was able to just jot down the main points, obviously, from my statement, but that's what I've got with me today.

PN1533

I think what you're saying is because you're now in this Teams meeting on your phone, you can't access your statement either?‑‑‑That's right.

PN1534

Okay. Okay, thank you. I have nothing further.

PN1535

THE DEPUTY PRESIDENT: Thank you.

PN1536

Mr Wainwright, if it would assist to have the court book on screen, and, at various points, Ms Nebozuk's witness statement, if you could just indicate and my associate will place them on the screen, all right?

*** MICHELLE DAWN NEBOZUK XN MS STOJANOVA

PN1537

MR WAINWRIGHT: Yes, Deputy President. I foresee that that's going to create a range of difficulties, in terms of the size of screen that Ms Nebozuk has access to, but I think the indication you're giving me is you want me to have a go, so I'll do that.

PN1538

THE DEPUTY PRESIDENT: Yes.

CROSS-EXAMINATION BY MR WAINWRIGHT [12.37 PM]

PN1539

MR WAINWRIGHT: Ms Nebozuk, you've given evidence that you participated in the negotiations for the 2019 McCain Ballarat EBA, do you recall that evidence?‑‑‑Yes, I do.

PN1540

We've heard evidence that you came to the negotiations after they had begun, is that correct?‑‑‑Not after they had begun, no. I was part of the negotiation team for the 2019 EBA, yes.

PN1541

So at what time did you join the negotiating team for the 2019 EBA?‑‑‑So I was there - I was there, from the start of negotiations.

PN1542

Do you recall a date when that start was?‑‑‑No, I don't.

PN1543

Were you there from the beginning of 2019?‑‑‑From my recollection, yes, I was.

PN1544

Other witnesses have given evidence that there were two HR professionals who were in the negotiations before you and when they left McCain's you took over from them, do you recall that?‑‑‑At the start of negotiations Erin McGee and myself were there, from HR. At the later parts of the negotiations there was also Praline George, she joined the negotiations at certain meeting. Then Wayne Braybrook came in at the end, when Ms McGee left.

PN1545

For all those comings and goings you're saying you were there for the entirety?‑‑‑I believe I put in my statement that I was there for the negotiations but that I may not have attended all meetings, which is like from 2019 I may have been absent from - for one or two, three or four. It's - I can't say for sure. I don't have minutes or notes from every meeting.

PN1546

All right. I wonder, Deputy President, if your associate could show the witness page 105 of the court book?

PN1547

THE DEPUTY PRESIDENT: Yes, thank you.

*** MICHELLE DAWN NEBOZUK XXN MR WAINWRIGHT

PN1548

MR WAINWRIGHT: Can you see - excuse me. Ms Nebozuk, can you see that photograph?‑‑‑I can, Mr Wainwright, yes.

PN1549

Do you recall the meeting that - where those items were placed up on the whiteboard?‑‑‑I can - I know that - I know what the first tier issues, I can see that. I'm not sure that I would recall everything from the meeting.

PN1550

Yes. Do you recall Anna Lee Cribb emailing yourself, and other McCain representatives, a copy of this photo, after the meeting was held?‑‑‑I would have received a copy of that, yes.

PN1551

Can I ask you, I'm not sure if you can see it clearly, but can you see point 3 there?‑‑‑Yes, I can.

PN1552

As a McCain's representative in the negotiations, what did you understand point 3 to be?‑‑‑I'm not sure what you mean by 'understand what it means'. That was known as a first tier issue at the time.

PN1553

Yes. You can see that it says, 'Set manning levels', I want to read it correctly, so I'll get it as well. I can't read that screen, you're doing better than I can?‑‑‑Yes. So I can see that it says, 'Set manning levels for each area', but also, in brackets, I see that it says, 'Safe manning levels' as well.

PN1554

So what I'm asking you is, as a representative of McCain's in that meeting, what did you understand 'Set manning levels for each area' to mean?‑‑‑My recollection of the conversation around this point is that it was to ensure safety or our employees, not - it didn't - the conversation wasn't around set manning levels for each area, if that's what you're asking.

PN1555

That is what I'm asking?‑‑‑Yes. Each - - -

PN1556

So is it your evidence that while it says, 'Set manning levels', people were not trying to set manning levels?‑‑‑No. The conversation went to safety of our employees and it was important for both negotiating parties to make sure the safety of our employees. Numbers wasn't part of the conversation. I don't recall that numbers were discussed, as part of this particular point.

*** MICHELLE DAWN NEBOZUK XXN MR WAINWRIGHT

PN1557

But you knew that in putting up there set manning levels for each area, and then adding the asterisks and the words, 'Key issue', that what was being communicated was that the employees wanted to set manning levels for each area, didn't you?‑‑‑The piece that came up for me, that I can recollect, is that interest based bargaining was a piece of the conversation and that numbers wasn't the main focus. The main focus was on the safety of employees and how we went around making change. That's the pieces that I can recollect.

PN1558

Yes. So we can both agree that safety of the employees (indistinct) and very important, but what I'm trying to get to is your understanding of the words, 'Set manning levels'? So, again, I'll ask you, what do you understand the term, 'Set manning levels' to mean?‑‑‑Sorry, Mr Wainwright, I can only give you want I can recollect, and that's the conversation around the - the claim, if that's what it was, or the first tier issue of manning levels became more the conversation around just employee safety and how we go around making a change. That's it.

PN1559

All right. I didn't ask you about the conversation, I asked you what you understood it to mean. So let me break it down a bit more. When there's a phrase, 'Set manning levels', what do you understand the word 'set' to mean?

PN1560

MS STOJANOVA: Deputy President, she has answered the question multiple times.

PN1561

THE DEPUTY PRESIDENT: Let's take this to the end. Mr Wainwright, you can continue.

PN1562

MR WAINWRIGHT: So I was asking, Ms Nebozuk, I'll just remind you; in terms of the phrase, 'Set manning levels' that's used there, what do you understand the word 'set' to mean?‑‑‑Well, I would say that they would have wanted safe manning levels.

PN1563

So you understand the word 'set' to mean 'safe'?‑‑‑From my recollections of the conversation, yes, I think that's what it means, 'Safe manning levels'.

PN1564

Can I ask you to turn - excuse me. Deputy President, I wonder if your associate could show the witness, I believe it's page 53 of the court book? Fifty-four, 54 of the court book.

PN1565

THE DEPUTY PRESIDENT: Okay, thank you.

PN1566

THE WITNESS: That one is a bit smaller, I'm sorry.

*** MICHELLE DAWN NEBOZUK XXN MR WAINWRIGHT

PN1567

MR WAINWRIGHT: Yes, let me read the headline for you. It says, 'Processed based risk analysis - McCain's Food Ballarat', and it's a document from Philip Deveraux(?) and Shelly Wilson, and it's dated 15 February 2022?‑‑‑Right, yes.

PN1568

I just wanted to ask you if you received that document?‑‑‑No, I haven't.

PN1569

Thank you. Deputy President, I wanted to show the witness the structure document, and I'm just trying to find a page for that now. Seventy-three.

PN1570

THE DEPUTY PRESIDENT: Yes?

PN1571

MR WAINWRIGHT: Thank you, Deputy President.

PN1572

THE WITNESS: Mr Wainwright, did you want me to be able to see that particular page?

PN1573

MR WAINWRIGHT: I'm sorry, we're still - - -

PN1574

THE DEPUTY PRESIDENT: There it is?‑‑‑Okay.

PN1575

MR WAINWRIGHT: Then it will be rotated. Thank you for your patience, Ms Nebozuk?‑‑‑That's okay.

PN1576

So this is a page in the court book and it is a representation of the way that the potato packing area is currently structured. I wanted to ask you, from your perspective as an employee services team lead, does this structure provide an accurate representation for the current composition of the potato packing area?‑‑‑Okay. So in my current role I couldn't confirm that, that's not part of - that wouldn't be part of my current role.

PN1577

Okay. In terms of your current role, do you have any oversight of the temperature settings of the grading room, or the tote room, in the potato packing area?‑‑‑No, I don't.

PN1578

In your current role do you have, or in any of your previous roles, do you have any knowledge of the employment representation or team composition in the potato packing area in 2021?‑‑‑Not in 2021, no.

*** MICHELLE DAWN NEBOZUK XXN MR WAINWRIGHT

PN1579

Right. Were you aware that there were 10 people employed in the potato packing area, in 2021?‑‑‑The potato plant was not my area in my role or my previous role, no.

PN1580

Are you aware that there are nine people currently employed in the potato packing area?‑‑‑I could look it up, but if you're asking me if I know, off the top of my head, no.

PN1581

That is exactly what I'm asking you, so thank you for that. I wonder, Deputy President, if the witness could be shown page 67 of the court book?‑‑‑Sorry, Mr Wainwright, if that's the page I would need you to read out what - - -

PN1582

Yes?‑‑‑Yes.

PN1583

So, Ms Nebozuk, this is a copy of a break schedule that was distributed in the potato packing area. I wanted to ask you, are you familiar with this document?‑‑‑No.

PN1584

You did not prepare this document?‑‑‑No.

PN1585

In your position you had no visibility about how the breaks are structured in the potato packing area, is that correct?‑‑‑That's correct.

PN1586

Thank you. Could the witness be shown page 273 of the court book, please? So, again, Ms Nebozuk, I acknowledge that that's going to be very small on your screen, as it is on mine. You're broadly familiar with the terms of the 2019 McCain's Ballart EBA, aren't you?‑‑‑Yes.

PN1587

Are you aware of the provisions of clause 20.14, 'Working in cold environment'?‑‑‑That there's needs for breaks, yes.

PN1588

Were you present when that provision was negotiated?‑‑‑I'm sorry, Mr Wainwright, I can't recall whether I was or I wasn't. I don't have any - the notes that I was able to locate, and from my recollection, I couldn't confirm that.

PN1589

But you're broadly aware that a regime for additional breaks for people who work in cold temperatures was introduced in the 2019 agreement, aren't you?‑‑‑Introduced, or discussed, I can't confirm, sorry.

*** MICHELLE DAWN NEBOZUK XXN MR WAINWRIGHT

PN1590

Right. It's been highlighted, on your screen there, to an extent where I think you're able to read it, you see that there is a provision, in the enterprise agreement, I say to you this is a page from the enterprise agreement, 20.14, 'Working in cold environment', you recognise that that's part of the agreement currently?‑‑‑Yes, I do.

PN1591

Are you aware of how that provision works?‑‑‑Yes. It's rest breaks being in cold temperatures.

PN1592

Are you aware that a provision of this nature was in the 2016 EBA?‑‑‑I would need to go back to the EBA to confirm that. But I have - I am aware that we have breaks down in the - for the cold environment, yes.

PN1593

I put it to you that when this provision was being discussed, in the negotiation for the 2019 agreement, that it was acknowledged that additional labour would need to be allocated to fill these breaks. That's correct, isn't it?‑‑‑I can't recollect that, Mr Wainwright.

PN1594

All right. Well, as a HR team leader, employee services team leader, and given your knowledge of this provision, it's logical, isn't it, that if there were to be additional breaks for people working at cold temperatures, then additional labour would need to be allocated to replace them. That's logical, isn't it?‑‑‑I think McCain's has always worked with safe labour levels so if - if labour is required to ensure the safety of our employees, then we would make sure that that would happen.

PN1595

Okay, that's - thank you that's fantastic. What I'm asking about is when you see the breaks regime here, and you can see that it steps up as the temperature goes colder, and people are entitled to 10 minutes per hour and then 20 minutes per hour, do you accept, from your perspective, as a team leader, that those additional breaks would require the allocation of additional labour, to ensure that those positions were constantly filled?

PN1596

MS STOJANOVA: Is the witness being asked to speculate about operational matters which are not in her remit and which she has given evidence of never being in her remit?

PN1597

MR WAINWRIGHT: She's just being asked to give a straight answer to a straight question.

PN1598

MS STOJANOVA: I disagree, I think it's objectionable.

*** MICHELLE DAWN NEBOZUK XXN MR WAINWRIGHT

PN1599

THE DEPUTY PRESIDENT: Would you answer the question, please, Ms Nebozuk?‑‑‑So, Mr Wainwright, from my team, as a team leader of my team, I would understand what I would need to do, as far as labour and breaks are concerned. When you're talking about the cold store, or operational areas, no, I don't know that, off the top of my head.

PN1600

MR WAINWRIGHT: Could I ask the witness to have a look at DN4, at page 242 of the court book, please? Perhaps if we just go to the top of the document, showing the titles, thank you.

PN1601

Ms Nebozuk, are you familiar with this document?‑‑‑I have seen this document before, yes.

PN1602

Did you prepare this document?‑‑‑No, I didn't prepare this document.

PN1603

Did Karsten Munstega prepare this document?‑‑‑Karsten would have been the person that would have prepared this document, yes.

PN1604

Do you see that there are various columns?‑‑‑Yes.

PN1605

There's a column there, headed, the third column from the right, 'Mutually agreed', do you see that column there?‑‑‑Yes.

PN1606

What does that indicate, that column?‑‑‑It means that in some way or shape that the original claim from the union was addressed and agreed to?‑‑‑Right.

PN1607

Do you see the next column, 'Offer location'?‑‑‑Sorry, I can hardly read that one, but if that's the next one to 'Mutually agreed', yes.

PN1608

Karsten Munstega filled in those details, didn't he?‑‑‑To my knowledge, yes.

PN1609

Do you see there's a next column, it doesn't have a heading but it deals with cost, and in some of the items there's a cost highlighted?‑‑‑Yes.

PN1610

Karsten Munstega filled in that column, didn't he?‑‑‑To the best of my knowledge, yes, but I couldn't guarantee that Karsten did every single thing on the document, if that's what you're asking.

*** MICHELLE DAWN NEBOZUK XXN MR WAINWRIGHT

PN1611

Yes. And I just wanted to ask about, you can see a red block on your screen there, I think you said it was for the free Wi-Fi?‑‑‑Yes.

PN1612

The red block signifies, doesn't it, that there was no agreement between the parties and that that item was not included in the EBA?‑‑‑With the free Wi-Fi, I can say that it had already been implemented. I can't say, for sure, that the red block means that it, yes, wasn't included in the negotiations.

PN1613

Okay. Do you know what the red block means?‑‑‑Not a hundred per cent, no.

PN1614

Okay. Thank you. Those are my questions, Deputy President.

PN1615

THE DEPUTY PRESIDENT: Thank you.

PN1616

Is there anything in re-examination?

PN1617

MS STOJANOVA: No, Deputy President, no re-examination.

PN1618

THE DEPUTY PRESIDENT: Thank you.

PN1619

Ms Nebozuk, thank you for your evidence. You're excused from further attendance. You are welcome to observe, but I'd say you'd prefer to be doing something else?‑‑‑Thank you, very much, Deputy President.

PN1620

All right, thank you.

<THE WITNESS WITHDREW [1.01 PM]

PN1621

THE DEPUTY PRESIDENT: Now, Ms Stojanova, does that complete the evidentiary case for McCain's?

PN1622

MS STOJANOVA: Yes, Deputy President.

PN1623

THE DEPUTY PRESIDENT: All right. We've perhaps reached a convenient time to adjourn, prior to final oral submissions, it being 1 o'clock. I'm happy to resume at a quarter past 2, if that's convenient to the parties?

*** MICHELLE DAWN NEBOZUK XXN MR WAINWRIGHT

PN1624

Yes, all right, thank you. The Commission will adjourn until a quarter past 2, thank you very much.

LUNCHEON ADJOURNMENT [1.01 PM]

RESUMED [2.17 PM]

PN1625

THE DEPUTY PRESIDENT: Thank you. We'll just wait for Ms Stojanova. Thank you.

PN1626

Yes, Mr Wainwright?

PN1627

MR WAINWRIGHT: Thank you, Deputy President.

PN1628

In our submission the respondent is seeking to convince the Commission that when the EBA says 11, it actually means nine. They seek to convince the Commission that when the AMWU says 'set' they actually mean 'safe'.

PN1629

In our view this approach is dangerous and should not be allowed to succeed. We say that the respondent is required to allocate 11 staff members per shift, in the potato packing area. We say that's apparent, on the face of the agreement.

PN1630

We respectfully submit that the Commission should answer the defined question in the affirmative.

PN1631

In terms of the respondent's submissions, as outlined at page 170 of the court book and following, we have a few things to say.

PN1632

In regard to paragraph 5(e)(ii), we say that what the respondent is trying to do there is exactly what the Full Bench, in Berri, said should not happen. They're seeking to rewrite the provision and to give effect to an externally derived conception.

PN1633

So Appendix 1 of the agreement becomes the 2014 appendix agreement. That's not what it is, it's not what it's called. The title of the appendix has been changed. The definition of agreement, which is specifically as we've outlined in our submissions, defined in the agreement, is changed. The respondent relies on evidence of reductions of crewing, that occurred in 2018.

PN1634

Those reductions in crewing, you've heard evidence on, Deputy President, they occurred. They are not a blank cheque forever. What happened after those reductions was there was bargaining. We say that that is the way the process is designed to work.

PN1635

They completely ignore the clear evidence of that bargaining of the inclusion of 11 staff in the potato packing area and of the evidence of staff reductions, in potato packing, at the start of 2022.

PN1636

At paragraph 24 they talk about when the dispute was raised. I'd hoped that we moved pass this issue, but we went through a detailed process, with Mancini DP, the parties were directed to do two things.

PN1637

Firstly, the applicant was directed to prepare the draft report, which you find at page 6 of the court book. Deputy President, in our view, the contents of the court book are there for you to use, to inform yourself, as you see fit. But that's what we were directed to do by Mancini DP, and we did it.

PN1638

We were directed to meet together, as parties, in Ballarat, on 3 March. We did that, we spent a day together seeking to resolve the dispute. That was under the directions. In terms of any discussion about how the dispute was raised, as I say, I believe, and I fervently hope, that we'd moved past those issues.

PN1639

We take issue with paragraph 23. We dealt with this, with Mr Carter. There is evidence that the staffing in the potato packing area has changed. The clear evidence is there is a change, and the turnover from 2021 to 2022, in that there were 10 staff members allocated last year and there were nine staff members allocated this year. We believe now, with the evidence of Ms McInerney and Mr Carter, the evidence on that point is clear.

PN1640

Paragraph 30, we're told that it is plain that the word 'agreement' in disputed clause 16 and in the first sentence, means something other than what it says. We say that it is not plain at all, 'agreement' means exactly what it says, it means 'agreement'. 'Set' means 'set', not 'safe' and 'agreement' means 'agreement', not whatever else - - -

PN1641

THE DEPUTY PRESIDENT: So do you maintain the submission that in Appendix 1, clause 1, notwithstanding what the text says there, that when one reads this agreement it's to be the 2019 agreement?

PN1642

MR WAINWRIGHT: What we say about clause 1 is that that is the title of this appendix.

PN1643

THE DEPUTY PRESIDENT: Yes, all right.

PN1644

MR WAINWRIGHT: That's what it says it is. What my submissions go to are the way the agreement is used, in 2.2.1, capital A Agreement there, and the way that 'agreement' is used in 9.1, capital A Agreement, again, and in clause 16, obviously.

PN1645

THE DEPUTY PRESIDENT: See, there's other quirks in this drafting. For example, and you may well both take me to this, but you've got, I think, 2.2.1 seems to be some sort of a drafting error, with, 'Clause 32 of this agreement'.

PN1646

MR WAINWRIGHT: Yes.

PN1647

THE DEPUTY PRESIDENT: One might surmise that that is clause 32 of 'the agreement'. Then, for some reason, when the parties drafted this, they decided to introduce the term, 'the enterprise agreement', which appears in a couple of places within Appendix 1 as well.

PN1648

But for mine, and I'm happy to hear submissions on this, there's a distinction between what 'this agreement is', which appears to me to refer to the Appendix 1 2014, the long title being McCain Foods Ballarat Production Employee Seven Day Continuous Shift Roster Agreement 2014, and 'the agreement' being the 2019 agreement. That's how I read it.

PN1649

Anyway, that might inform what you address or might have just cut into your flow, I don't know.

PN1650

MR WAINWRIGHT: We were addressing paragraph 23 of the respondent's submissions. What we were saying is that they take a too limited approach to the definition. If we read the appendix in its entirety, in 2.2.1 we see a further reference to 'this agreement', as you pointed out, which clearly references the temporary employment clause of 'the agreement'. At 9, 'the agreement' was used.

PN1651

THE DEPUTY PRESIDENT: Yes.

PN1652

MR WAINWRIGHT: So the difficulty of the respondent's approach is they seek to rewrite the provisions in clause 16 of Appendix 1, but use the plain definition of clauses 2 and 9. They seek to derive support from the way shift work, overtime and other matters are displaced or not displaced. But, again, the analysis, at paragraph 36 of their submissions is, in our submission, lacking.

PN1653

The respondent fails to take into account the cross-reference that's built into the agreement. One example is that at clause 20.1.2, on court book page 270, it states, 'Unless clause 20.2.4 provides a carve out'. So that comparison, in our view, cannot be made.

PN1654

The note at clause 20.10.2, at court book 272, again accommodates the inter-relationship between the different parts of the agreement.

PN1655

I refer, again, to paragraph 37 of the respondent's submissions and we say that this is not a definition. It says that it shall be known as the McCain Foods buy-out production clause, seven day continuous shift roster at 2014.

PN1656

The suggestion that this is a definition is again, doing that which Berri tells us not to do. We're being asked to write in a definition in Appendix 1, which the term simply does not exist in that appendix. In regard to paragraph 44, we submit that this conclusion in the respondent's submission is plainly wrong. Clause 1 of Appendix 1, merely gives us the full title; it's not a definition and doesn't purport to be a definition.

PN1657

THE DEPUTY PRESIDENT: So, do you say then that later in Appendix 1, so for example, where one reads clause 16.1 'Prior to the commencement of this agreement, this agreement means the 2019 agreement.' Is that your submission?

PN1658

MR WAINWRIGHT: Yes.

PN1659

THE DEPUTY PRESIDENT: I find that difficult to follow.

PN1660

MR WAINWRIGHT: Well, Deputy President, the agreement defines the word 'agreement'. As you say this has not been drafted one hundred percent tightly. You pointed out some deficiencies in the drafting. But when you define the word 'agreement', at the start of the agreement, and then you use the word through the agreement, then we submit to you that you're bound by that definition.

PN1661

THE DEPUTY PRESIDENT: Yes, I don't know that it's that simple because agreement used in isolation is one thing, but agreement with the words before it, is another, this agreement or that agreement. How do you then explain, for example, the wording in clause 16.2?

PN1662

MR WAINWRIGHT: The wording in 16.2 gives us an ongoing process to have a look at the numbers that are above with regard to any change or technological advancement that's introduced.

PN1663

THE DEPUTY PRESIDENT: Yes, but you've got this agreement and that agreement used in the same subclause.

PN1664

MR WAINWRIGHT: Yes.

PN1665

THE DEPUTY PRESIDENT: So, I think you're straining there to say that there's no difference between this agreement and that agreement, as it's used in 16.2.

PN1666

MR WAINWRIGHT: Well, Deputy President, let me say that if that was accepted, it still does not follow that the potato packing area should not have been allocated 11 staff members upon the introduction of this EBA. The question that you're putting is, in terms of how you define this agreement at 16.1, at 16.2 and the agreement at 16.2. In my submission, calls for a level of drafting that is not appropriate for workplace agreement. I think the Full Bench talks about that in Berri and in Skene.

PN1667

But regardless, what we say is, the process that was carried on in 2017 and 2018 to adjust the numbers in the potato packing area were not set for life. Those processes were - - -

PN1668

THE DEPUTY PRESIDENT: Your proposition is this, that the rights under 16.2 are exercised by McCain during the life of the 2016 agreement and when it got to negotiating the 2019 agreement, the union had a claim about set numbers and what has appeared in the final text of the 2019 agreement insofar as potato packing is concerned, is 11 roles. You say that's what was put up for a vote, what was approved by majority vote and what's then gone to the Commission and that's the agreement. That's your proposition.

PN1669

MR WAINWRIGHT: In a nutshell.

PN1670

THE DEPUTY PRESIDENT: Yes. I understand that, and around all that is the evidentiary case that both parties have presented around the bargaining process. But what both parties have to grapple with is, do they not, is when we start with the text, we could go through the steps in Berri, if there's ambiguity. So, what I'm proposing to you is, I don't see 16.2 as being interpreted the way you put it. But I don't necessarily see that as being fatal to your construction of the agreement.

PN1671

MR WAINWRIGHT: Yes, I agree with your assessment that if you're against me on the 16.2 question, that doesn't pierce the nutshell, but regardless, I press the submission that your capital A Agreement appears in the text through definition and clause 3 of the agreement should be followed.

PN1672

THE DEPUTY PRESIDENT: Yes. Then what's the point of clause 1 of Appendix 1?

PN1673

MR WAINWRIGHT: Is to give us the title of the Appendix.

PN1674

THE DEPUTY PRESIDENT: Why doesn't it say this Appendix?

PN1675

MR WAINWRIGHT: I can't answer why it doesn't.

PN1676

THE DEPUTY PRESIDENT: No.

PN1677

MR WAINWRIGHT: If your question is should it say, then my answer would be, yes it should. But equally - - -

PN1678

THE DEPUTY PRESIDENT: Doesn't that give rise to ambiguity though? I mean, you've got this agreement and this agreement. Don't we both – doesn't everyone have to address how Appendix 1, where it is, where it sits in relevance to the main body of the agreement, what enlivens the need for Appendix 1? Now, is it for example, clause 20.4 in the main body of the agreement and the 2019 agreement, 24.4 on page 271 of the court book is the pro (indistinct) – well, it sets up the seven day continuous shift arrangement. And in that regard, there's almost a repeating of the words in 20.4.1 and 2.1.1.

PN1679

MR WAINWRIGHT: Yes, Deputy President.

PN1680

THE DEPUTY PRESIDENT: That gives birth to Appendix 1. The agreement contemplates the possibility of a seven day continuous roster, subject to obtaining the agreement of a majority of employees. Then Appendix 1 is the product of that agreement to introduce that sort of a roster.

PN1681

MR WAINWRIGHT: Yes. But Deputy President, in my assessment, I feel that you're in danger of feeding too much importance into the fact that these matters are handled in an appendix. I don't believe it signifies what would create a division between the provisions in the body of the agreement and the provisions in the appendix. I rely on the provisions in Appendix 2 that again use an appendix structure to deliver the set levels on the prepared food side of the plant, which you've heard is the other side of the plant to the potato plant.

PN1682

Obviously, this agreement is I think, a mark seven agreement, Deputy President. We're dealing with carry overs from many years of negotiations. But the working approach to this document is the provision that precedes the appendices, has as much force as the provisions in the appendices (indistinct) basis.

PN1683

THE DEPUTY PRESIDENT: I don't parry with that. I was just looking at the relationship and clearly Appendix 2 is referenced in 20.2 of the main body of the agreement. What I was posing was the tie-in between Appendix 1 in the main body of the agreement seems to be 20.4, and in the earlier incarnations in the 2016 and 2014 agreement, they were different clauses. So, that's what I was getting at.

PN1684

MR WAINWRIGHT: Yes. Now, Deputy President, I think that's a good chance to have a look at the changes that occur to Appendix 1 in the 2019 agreement, because they were quite substantial.

PN1685

THE DEPUTY PRESIDENT: Well, I've noted, and you can tell me whether I've missed any, but I've noted that in Appendix 1, clause 2.2.2 is new.

PN1686

MR WAINWRIGHT: Yes.

PN1687

THE DEPUTY PRESIDENT: Then in clause 9.1, the first - - -

PN1688

MR WAINWRIGHT: I was going to, Deputy President, I was going to point to the number and changes that occur throughout, and they begin at 7.1.

PN1689

THE DEPUTY PRESIDENT: 7.1 of the appendix?

PN1690

MR WAINWRIGHT: Yes.

PN1691

THE DEPUTY PRESIDENT: Right, yes.

PN1692

MR WAINWRIGHT: So, basically, in terms of the numbering, see I think you were going to - - -

PN1693

THE DEPUTY PRESIDENT: Yes, for some reason, yes over time, change from 7.1 – 7 to 7.1, yes, I accept that. All right, yes, was the next one at 9.1?

PN1694

MR WAINWRIGHT: Yes, method of accrual was altered at nine. On my assessment there was a numbering change at 11, a numbering change at 12, a numbering change at 13, 14, 15, 16 we've discussed the changes there. The former clause 17 in the 2016 agreement has been removed.

PN1695

THE DEPUTY PRESIDENT: Deleted, yes.

PN1696

MR WAINWRIGHT: Then you have the resulting numbering changes to clause 17. So, we say - - -

PN1697

THE DEPUTY PRESIDENT: And there was a further change there in 17 where if you see 17.2, it finishes, there's a full stop after potato products plant. In the 2016 agreement there were additional words, are set out in subclauses 17.1 to 17.2.2. They were deleted.

PN1698

MR WAINWRIGHT: Yes. Thank you, I'm indebted to you, Deputy President for that. So, we say that that demonstrates the care and attention that was paid to the drafting of this part of the agreement which we say supports our argument that the respondent is required to allocate 11 staff members per shift in the potato packing area.

PN1699

Deputy President, I was going through some comments from the respondent's submissions.

PN1700

THE DEPUTY PRESIDENT: Yes.

PN1701

MR WAINWRIGHT: I just wanted to say in relation to paragraph 51 of their submissions, they say that this argument fails to deal with the fact that at AM3, attached to some Ms McCarthy's witness statement at point six on court book page 90, it demonstrates that the clearing levels in the appendix profiles, and that is a negotiation. Just as the wage levels were agreed in 2016, the use of the same architecture in the agreement can't alter the power or the import of the agreed outcome.

PN1702

We are concerned about the respondent's submissions at paragraph 54. What we say in relation to that is it begs the question what of the evidence of staff reductions at the beginning of 2022. That evidence is clear that's in conflict with what's been put to you at paragraph 54. What's really being argued for here is that blank cheque I was discussing, I just want to argue we went through a process in 2017/2018 and so now we can do whatever we like. We say that that's not the case. That was a process that was entirely proper under the provisions at the time. It was equally proper for the employees to argue for 11 or 12 or 13 staff members in the 2019 agreement.

PN1703

We can ignore the fact that the functionality that was promised in terms of that adjustment in 2017/2018 was not delivered and you've heard evidence about that from Ms McCarthy and from Mr McCain. But what we say in our submission we can't ignore, is the number that ends up on the page in Appendix 1 and that number is 11. Equally Brian McCain was told directly in emails during the negotiations that the existing clearing levels were not working. And of course, the most important thing from our perspective was that there was a document put to the workforce and the workforce voted on that. I'll come to the document that you distributed earlier today, Deputy President.

PN1704

THE DEPUTY PRESIDENT: Yes.

PN1705

MR WAINWRIGHT: In terms of paragraph 67, we say that the seven day continuous shift was not a matter of negotiation. Meaning in relation to paragraph 68 - - -

PN1706

THE DEPUTY PRESIDENT: Sorry, just in 67 which particular part of 67? Is it in (b) or - - -

PN1707

MR WAINWRIGHT: Yes, my notes are saying from (b).

PN1708

THE DEPUTY PRESIDENT: So, you – what's your proposition you disagree that - - -

PN1709

MR WAINWRIGHT: Well, the proposition is about, and I didn't really want to get into this, because it's part of language, but what we've heard in this application is it's about a return to 11, as if our negotiating stance was, we want we got in 2016. Whereas that was what we never put in the negotiations. So, we didn't seem to seek to return to 11, because 11 was the former number. We negotiated for 11, because that was the appropriate number that was decided upon by the workforce and the AMWU membership.

PN1710

So, it's not about changes to the agreement. We didn't seek to retain the number 11 because it was the former number. We sought 11 staff members because that was the appropriate level of staff that we wanted to be set in that area.

PN1711

THE DEPUTY PRESIDENT: Does the evidence bear that out, really? I mean, a lot of the evidence and the examination in chief and cross-examination was conducted without reference to a specific number.

PN1712

MR WAINWRIGHT: Yes.

PN1713

THE DEPUTY PRESIDENT: I mean, you spend some time highlighting set.

PN1714

MR WAINWRIGHT: Yes.

PN1715

THE DEPUTY PRESIDENT: But I didn't understand the evidence to be and we decided the set number as we moved into 2019 would be 11. 11 wasn't seemingly plucked out of the air.

PN1716

MR WAINWRIGHT: No, and Mr Kenna gave evidence that he would have liked to have seen more than 11. That was his evidence. Our case was, we sought to set the staffing level. The number that was eventually arrived at was 11. What I'm putting to you - - -

PN1717

THE DEPUTY PRESIDENT: I just don't know that the evidence establishes that there was dialogue around 11.

PN1718

MR WAINWRIGHT: Yes. Except that it is the number in the agreement.

PN1719

THE DEPUTY PRESIDENT: Except that it's the number in the agreement, that's a different matter.

PN1720

MR WAINWRIGHT: Yes.

PN1721

THE DEPUTY PRESIDENT: But you know, the documents that you've provided don't say 11 for potato packing. There's no numbers for any particular part. I accept the documents say what they say, but they don't say 11, do they?

PN1722

MR WAINWRIGHT: No.

PN1723

THE DEPUTY PRESIDENT: I don't think any of the evidence was we were discussing 11 for potato packing. I think rather more the point is, in the document is 11.

PN1724

MR WAINWRIGHT: Yes.

PN1725

THE DEPUTY PRESIDENT: But I'm happy to let you develop your submission on that.

PN1726

MR WAINWRIGHT: I'm happy to move on, Deputy President, and I'll move on to paragraph 68 of the respondent's submissions at court book 190. We say in relation to that, that these are not the only changes, the changes referred to there in capability and technology. They're not the only changes that are relevant. Changes to workload are also relevant and we've heard the evidence of the change in this EBA, in terms of the warm-up rates at clause 20.14.

PN1727

THE DEPUTY PRESIDENT: 20.14?

PN1728

MR WAINWRIGHT: At paragraph 69, this is, Deputy President, where we want to point you to the decision in HSU v Ballarat Health Services, page 158 of the court book is where we say the relevant passage can be found. For us, our submission here is very much about the nature of the instrument, which we think is also relevant to your consideration of the quirks, as you put it, in the drafting. We think that it's necessary and we're beholden to take into account the nature of the instrument in looking at the common intention and in looking at the way that the document itself has been drafted. This is an industrial instrument that was voted on by people who make prepared meals and potato products for a living. It's designed for that particular task.

PN1729

We say that there is no agreement as to the common intention. If there is inadvertence, then it's unilateral inadvertence. We would say that there isn't inadvertence, and I point you to the evidence of Mr McCain insisting that he was the person responsible for changing clause 16 of Appendix 1. It being difficult to comprehend how he could say that he was instrumental in that change occurring, but in the process to absolutely leave the 11 number alone, if you were to accept his analysis of the case.

PN1730

I want to touch on paragraph 70 of the respondent's submissions which is in terms of the language used and we ask the question there, why does the evidence show that the crewing reduced at the start of 2022. We say that that again is a relevant circumstance, because again, as you pointed out Deputy President, that 16.2 has work to do. If there was to be a reduction, when surely the requirements of 16.2 could and should have been met.

PN1731

At paragraph 71, we dispute that point.

PN1732

THE DEPUTY PRESIDENT: Sorry, which paragraph?

PN1733

MR WAINWRIGHT: Paragraph 71, Deputy President.

PN1734

THE DEPUTY PRESIDENT: Yes.

PN1735

MR WAINWRIGHT: We dispute that point. We rely on the agreement stating that there should be a crew of 11. We rely on the evidence of Sue McInerney in particular in that regard. So further, RK1, 2 and 3 clearly demonstrate that the log of claims sought additional staff in potato packing. Equally in paragraph 73, Mr Kenna and Ms McCarthy gave clear evidence that they did negotiate crewing levels in breaching the 2019 EBA.

PN1736

In terms of paragraph 78(d) on court book page 192, we say that this doesn't take into account the evidence in AM3 and the reference, in particular, to the appendix profiles at item 6 of AM3, that is, clear evidence that when we were talking about setting staffing levels, we recognised that those staffing levels sat in the appendix profiles and it's important to note, plural there, Deputy President, and to keep in mind the importance of Appendix 2 as well. Because of course, if the bona fides of Appendix 1 are to be brought into question, then that questions the bona fides of Appendix 2.

PN1737

Deputy President, in regards to all of these matters, we say that it's necessary to take into account recent High Court decisions handed down in Jamsek and in WorkPac. Jamsek this year and WorkPac last year. Jamsek stated that when a contractor is the contractor and WorkPac, to find when a casual employee is a casual employee. What those decisions did, in our view, was to confirm that the primacy of how valid the clause we contract and restated the unexceptional proposition that the only legal basis of an employment relationship is the contract. The majority in Jamsek went on to say that:

PN1738

An employment relationship is not a psychological or social construct or a friendship and that the legal basis of the employment relationship was the contract.

PN1739

That approach which had been adopted by the courts, was quaintly described as obscurantism by the High Court in WorkPac. That obscurantism gave right to greater uncertainty. The majority in Jamsek said:

PN1740

Where parties have comprehensively committed the terms of their relationship to a written contract the efficacy of which is not challenged on the basis that it is a sham, a wide-ranging review of the parties' subsequent conduct is unnecessary and inappropriate.

PN1741

We think that that guidance provided by the High Court has some efficacy here.

PN1742

Deputy President, we also rely, and I sent to your chambers I think a couple of hours ago, and to my friend, we rely on Commissioner Bissett's decision in [2019] FWC 6083 Ahmadyar v Visy Board which himself relies on the Full Bench decision in Moore Paragon. We seek that inferences be drawn on the respondent' failure to give or provide evidence that was within their power to provide or give. We rely on the Commissioner's summary of the principles at paragraph 42 of her decision and that point about the evidence within their power is, I think, the last point of paragraph 42.

PN1743

On two matters in particular, we say it was within the respondent's power to bring evidence. First, the advice given to employees in voting on 2019 agreement. That is the respondent's document. They distributed it to employees. The issue of what employees were advice in voting on the agreement was raised in the submissions and witness statements that we provided. It was clearly a relevant consideration and we're indebted to your Honour for finding that in the Commission's file.

PN1744

Secondly, the circumstances of labour allocation and temperature setting in the potato packing area in 2021/2022. They obviously had a lot of discussion, Deputy President, about who could or should give evidence. What we've ended up with a paucity of evidence from the potato packing area itself and Ms McInerney is the only witness with any direct evidence from the potato packing area. We say that there are relevant factors for you to consider. We say that the inferences that can be drawn are that the respondent was aware that the explanation document that is now being provided demonstrates that the respondent was aware that the AMWU negotiations sought to set (indistinct) levels.

PN1745

Secondly, by not making witnesses available with direct knowledge of the potato packing area, such as manager, supervisors, we've heard about Tee and other people, the respondent was seeking to obfuscate issues around the labour allocation and temperature setting in the potato packing area.

PN1746

I want to touch on briefly, Deputy President, the witnesses that you've heard from. I say in relation to Ms McInerney's evidence that it demonstrated clearly that there was a reduction of 10 to nine in the potato packing area in 2022, and that that reduction occurred without consultation with the workforce. This coincided, based on her evidence with the temperature of the grading room being decreased and now set at four degrees and the tape room set at -18 degrees. We've gone through the provisions of clause 20.14 that are relevant to that change.

PN1747

It was clear, cogent evidence from an experienced employee who has been promoted in the past by the company to a position of senior controller and you heard that Ms McInerney chose herself not to continue in that position. Her evidence demonstrated that the grading room reduced form two operators to one, and that there was no allowance in the break schedule for warm-up breaks for the single remaining operator. That is something that has simply not been addressed in evidence from the company.

PN1748

So, in relation to Ms McCarthy's evidence that it demonstrated that the negotiating position to set crewing levels was central to the claims of employees when drafting the 2019 agreement. In relation to BM4, Ms McCarthy was unshakeable in her evidence that she agreed only to the claim status in the document. In giving that evidence, she's ably supported by the terms of the document itself, which again, we say are important. The words on paper are important, which relevantly states 'The claim status within the document is agreed by the signatories as the items agreed to'. The third box goes on with more words though they're not relevant here.

PN1749

The totality of Ms McCarthy's evidence is consistent with the proposition that her members sought set crewing levels and achieved set crewing levels in Appendix 1 and Appendix 2, most relevant 11 members of the potato packing crew and they voted in favour of the EBA. To us, that's the central point that we focus on. The document was put in front of workers to vote on. There was an explanatory document that went with it and there can be no dispute that when you look at the document itself and the explanatory document, that a potato packing worker, a pizza maker, would conclude there will be 11 people in the potato packing area.

PN1750

We say that at least in part, because the EBA included set – I'll withdraw that sentence, your Honour.

PN1751

Ms McCarthy was in all the negotiations. It's her job to take instructions from her members and pursue the goals that they outlined. So she, in our submission, is in the best position to know what was being bargained for from the workforce. There were repeated attempts to question her memory of events or her reading of the key documents, but none succeeded. Ms McCarthy's evidence should be accepted and where it differs from the evidence of other witnesses, it should be preferred. Ms McCarthy was not dogmatic in her evidence, as a busy union official who is in multiple negotiations every year.

PN1752

We recognise that she can't be expected to recall every detail of this particular negotiation. The same goes for Mr McCain, what he could remember. Where she did not or could not recall, she readily acknowledged that in cross-examination which in our submission goes to our credit.

PN1753

Now, with regard to Mr Kenna, we say that he gave strong and learned evidence about the bargaining process. As a rank and file representative in the bargaining, it was clear that he took his responsibilities very seriously. Further, it's clear that he's given the process and the methodology of EBA negotiation much thought and consideration. In our submission, his ability to synthesise the theory of bargaining with the lived experience in this particular negotiation, was highly valuable and we hope that the Commission found that evidence valuable.

PN1754

As with Ms McCarthy, the core of his evidence was clear and cogent, consistent and logical, and in our submission, his evidence should be accepted. What was clear with regard to Mr Kenna's evidence is that it is in conflict with other evidence you've heard. That was really around the point of did Mr Kenna want either set crewing levels or safe crewing levels and they were really presented as being two mutually exclusive propositions. Mr McCain agreed that Mr Kenna could do two things at once and we think that that's right.

PN1755

However, even in circumstances where it was found that Mr Kenna did not want to set manning levels, and we say it should not be found, in our submission, nothing would turn on that. Mr Kenna was one of a number of AMWU negotiators. RK1 showed that the key issue was slip manning levels for each area. AM3 seeks set manning levels for each area and the goes further, by clarifying with appendix profiles. For his part, Mr Kenna was adamant that he sought a specific number to be allocated to the potato packing crew.

PN1756

In relation to Mr McCain's evidence, he acknowledged in addressing the email at page 173 of the court book, that the issue of the new machinery not working with the manning levels was raised with him. He acknowledged the fact that that happened. It was raised by an AMWU negotiator on 30 April 2019, while the new agreement was negotiated, he acknowledged that. Mr McCain agreed that a new clause was added in relation to supervisors performing hands-on work. We say that this demonstrates conclusively that the information being exchanged between the AMWU and a key negotiator for the company resulted in provisions being included in the agreement.

PN1757

Mr McCain also gave evidence about what information was given to the employees in voting on the agreement. His evidence was that a form of the document that is BM4 was given to the employees, that is the evidence that he gave. This evidence was shown to be mistaken and the Commission provided material available from their files. We submit that this has two effects. It brings into question the accuracy of Mr McCain's evidence about the negotiating process. It allows an inference to be drawn as I've discussed, about the respondent's submissions in this matter. They had control over this vital information employees were given and they decided not to share it with the Commission.

PN1758

We say that the document demonstrates that employees were not notified of a change to Appendix 1. Specifically, they were not told that 11 in the view of the company no longer means 11. So, if you are seeking a consistent, response from – or approach from the McCains, they've negotiated an agreement; they don't think that there should be 11 in the potato packing room. We say at that point, they have an obligation to tell the employees in voting on the agreement what Appendix 1 actually means.

PN1759

Further, the explanation provided to employees is less than complete. So, for example, the change to 2.2.2 in Appendix 1 is not mentioned. Cold breaks at clause 20.14 are not included in the explanation document that was distributed. We say that Mr McCain agreed quite properly that the use of the word 'set' as in the phrase set manning levels should be defined to mean to fix the value at a certain amount or rate. So, setting manning levels is to have an amount or rate of manning. He agreed that he was aware of the contents of the first photo in RK1. It obviously says set manning levels.

PN1760

The only logical conclusion that could be reached from the totality of that evidence is that Brian McCain did know or at the very least should have known that the AMWU unambiguously sought a specific amount of labour to be allocated to the potato packing area. Finally, Mr McCain gave evidence that he and he alone altered clause 16. We say again, it beggars belief that he decided to simply leave the rest of the clause unaltered, if in fact he believed the crewing levels was agreed to be lower than 11.

PN1761

That, in our submission, is the job of the agreement to reflect what has been agreed between the parties. Mr McCain changed manning to crewing because it was agreed. Mr McCain allocated 11 staff to potato packing, in our submission, because it was agreed. This case is not about the right of McCain to seek to reduce crewing levels when there is technological change. They retain that right in the 2019 agreement at 16.2. This case is about the rights of employees to bargain for and achieve improvements in wages and conditions. It's about the obligation of employers to respect the law represented by the provisions of approved agreements.

PN1762

Mr McCain agreed that in relation to the first tier issue on the first photo in RK1 that the AMWU had notified McCains that an agreement on those issues was, in his words, 'necessary for any agreement'. So, he knew, that with regard to the first tier issues an agreement on those was necessary for any agreement. It's a matter of fact that setting crewing levels was one of those first tier issues and was asterisked as being the key issues amongst the first tier issues.

PN1763

In our submission Ms Nebozuk's evidence in the main should not be relied upon. It was put to her that she knew that AMWU negotiators were seeking set crewing levels. She gave an answer about safety and that happened on my account, three times. When she was asked what set meant, in the context of set manning levels, she said it meant safe, which I found to be an extraordinary answer. It contrasted with the entirely proper answer Brian McCain gave to the same question. So, when you're asked what does the word set mean in the phrase set manning levels, I have no comprehension how the answer could be safe. But regardless, that was her evidence.

PN1764

As an Employee Services Team Leader, she could offer nothing in relation to knowledge of the potato packing area in 2021 or 2022. She had no oversight or knowledge of the labour allocation, the break structure, temperature setting or other matters. Only Ms McInerney has provided direct evidence on those points. Ms Nebozuk could not recall key points of the negotiation. By that, Deputy President, I mean the meeting on the dinner side, in the board room where Anna Lee Cribb took the four photographs. She couldn't remember; all the other witnesses remembered that. She said she was there, but couldn't remember that.

PN1765

Ms Nebozuk gave clear evidence about AM4. She stated that Mr Munstega filled in the offer location column. As we've heard, Mr Munstega was the lead negotiator for McCains along with Brian McCain.

PN1766

In relation to Mr Carter, we say his evidence was of limited value. He could provide no evidence given his role with the respondent, on the structure in the potato packing area or the temperature setting in the grading or tote rooms. Again, the only witness who provided direct evidence on these matters was Sue McInerney. Mr Carter acknowledged that through 2021 there was an additional employee in the potato packing team. The position he outlined was entirely consistent with the definition of an employee, which you can find in clause 3 of the agreement.

PN1767

A casual, at McCains, and they've got 200 of them, you heard, Deputy President, a casual is an employee. They can be a casual employee, as you heard, for 20 years. So, there is no difference to the number 11 in Appendix 1, between that person being a casual or being a permanent. They are an employee.

PN1768

The perceived managerial motivational justification for allocation of the 10th person is, in our submission, not a relevant consideration for you, Deputy President. The import of the evidence was that there was a 10th person in 2021 and they were removed in 2022. There was a slight conflict over the dates. Ms McInerney says it was from the first shift in 2022; Mr Carter said it was a little bit later.

PN1769

Ms McInerney gave evidence that this was the event, the removal of the 10th person that gave rise to this dispute. Mr Carter was not aware of any steps taken to notify employees in the potato packing area of the change. Just to repeat that. In terms of going from 10 to 11 some time around early 2022, Mr Carter was not aware of any steps taken to notify employees of that change. We submit that absent notification, logically there can be no suggestion that there was consultation. Mr Carter was clear on this point. The 10th person was removed 'once the business was comfortable'.

PN1770

In terms of paragraph 15 of his witness statement, those are matters Mr Carter says he was informed of by other people and his evidence cannot establish the truth of those statements made to him. That evidence, in our submission, should not be relied on.

PN1771

Deputy President, I want to touch briefly on the document that you provided to us, the explanation of your enterprise agreement for McCains Foods and I want to point to a few matters whilst saying, obviously, we've had this document only for a number of hours. As I've said earlier, there's no page numbers, Deputy President, but it's the fourth sheet that I have. There is an entry there for clause 20.13.3. We note that there is no entry for clause 20.14.

PN1772

Below that, we think it's relevant to point to how employees were notified about the change gone daylight savings in clause 2, where the employees are told about the change from the old agreement. We think it's relevant in relation to daylight savings, they're given, what we would say is a proper explanation of a change between the old agreement that people are used to working under and the new agreement that they're being asked to vote on.

PN1773

On the next sheet which must be the fifth sheet, Deputy President, in the last column, what is changing in this agreement, I want to bring your attention to the second box. The second box talks about 'in response to employee representative requests, relating to safe crewing levels'. So, what has been put to you is that the safe crewing level provision that was inserted into the EBA and put to you, that that was in response to our request to set crewing levels. What this document actually says is that once we end up with subclause 27.9, which I'm just thinking about cross-referencing, Deputy President, if you could bear with me for a moment. Actually, I won't do that; I won't do that. I'll talk about what the document says.

PN1774

The document says - subclause 27.9 – we're told that subclause is being introduced in response to employee representative requests relating to safe crewing levels. We say that that clarifies that we can walk and chew gum at the same time. We can deal with safe crewing levels but we also had a demand for a setting crewing levels. Two distinct things, related certainly, but equally all of this was related to the cold breaks. All of this was related to the work that supervisors were doing on the tools. Everything in a document like this is related. But they were two distinct negotiating points.

PN1775

The last page, obviously Deputy President, we have Appendix 1 and it refers only to the voting arrangements under the appendix have been removed. That's the removal of the previous clause 17. Doesn't go to any of those changes, including what we would say is quite a substantial change at 2.2.2. It doesn't go to any of those things. So, it cannot be put to you that is in any way an exhaustive list.

PN1776

Deputy President, as the applicant in this matter, the AMWU seeks to take a sensible business-like and pragmatic approach. We're the only party that is willing to countenance a compromise in this matter. We won't stop being sensible and business-like and pragmatic. But there's one thing that we must be dogmatic about, and that is that a deal is a deal. That words mean what they say, numbers mean what they say. The contract is the reality and the reality is the contract.

PN1777

We say that the respondent was required to allocate 11 staff members per shift in the potato packing area. We respectfully submit to you, Deputy President, that your answer to the defined question should be in the affirmative. Deputy President, unless there are any other matters that you want to take me to, that's all that I wish to put.

PN1778

THE DEPUTY PRESIDENT: Thank you. You'll have an opportunity to make any reply submissions after Ms Stojanova, so I'll ask Ms Stojanova to make her final oral submissions, thank you.

PN1779

MS STOJANOVA: Thank you, Deputy President. Deputy President, the task for this Commission in this matter, is to determine the proper construction of the disputed clause 16, in particular the disputed clauses 16.1 and 16.2 in Appendix 1 in the 2018 enterprise agreement based on the objective meaning of that disputed text.

PN1780

McCain's position is that this matter will be resolved by the Commission's construction of the ordinary meaning of the disputed words, read as a while, understood in the light of their industrial context and purpose, and interpreted against the factual scenario relevant to this case. During the parties' first appearance before this Commission on 30 May, the Commission suggested that this case required exploration of the point that the words in clause 16 are largely unchanged between the 2016 and 2019 enterprise agreements. That this posed the question of why the planned crew levels in clause 16.1 should not apply now, upon the commencement of the 2019 enterprise agreement, in the same way that the planned crew levels applied upon commencement of the 2016 enterprise agreement.

PN1781

In summary, and at a high level, McCain responds to that by relying upon clause 16.2. McCain begins by noting that during the operation of the 2016 enterprise agreement, McCain relied upon clause 16.2 to change the planned crew levels in clause 16.1. Clause 16.2 says:

PN1782

Planned crew levels may be subject to change. Such change may be subject to consultation.

PN1783

Whilst clause 16.2 changed the planned crew levels in clause 16.1, the planned crew levels in clause 16.1 no longer reflected the actual reduced current crewing levels, because the actual crewing levels were a change from the planned crewing levels. The actual crew levels were no longer the planned crew levels.

PN1784

The text in clause 16.1 of Appendix 1 of the 2019 enterprise agreement continues to state the numbers of the planned crew levels prior to the change. But those planned crew levels stopped operating when they were changed as part of the consultation and change process in 2017 pursuant to clause 16.2. In 2018, when the planned crew levels were changed, clause 16.1 still looked like it does now. But those planned crew level numbers weren't operational because the planned crew level numbers had been changed.

PN1785

Clause 16.1 continued to list the number 11, after those planned crew levels had been changed. The fact that clause 16.1 listed the number 11, didn't mean that the current crew levels were 11. The current crewing levels weren't 11, they had been changed. That was so in 2018, in 2019 and it has continued uninterrupted. The disputed clause 16 text appears much the same in the 2016 and 2019 enterprise agreements, but the numbers instead in clause 16.1 are still non-operational now, because the planned crew levels which were still unchanged during the consultation and change process in 2017, pursuant to clause 16.2. That hasn't gone away.

PN1786

If McCain was entitled to rely on the disputed clause 16 from 2017 onwards to implement the current reduced changed crew levels as a result of the consultation and change process, if the language in the clause that McCain used to implement the current reduced change crew levels is the same now, as it was during 2018 and 2019, if the parties never agreed to alter the current crew levels, if McCain never agreed to increase the current crew levels, then how could the same clause 16 mean something new upon the commencement of the 2019 enterprise agreement, than it did after the change to the planned crew levels, following the consultation and change process in 2017?

PN1787

How could the same clause 16 mean something new now, compared to what that text meant in 2018 and 2019? The answer is that it doesn't, sadly, mean something new. Clause 16 means exactly what it meant in 2018 and 2019 which is that the planned crew levels have been reduced. The planned crew levels were changed; McCain is entitled to rely on the reduced crew levels now under the same text in the same clause, just as McCain was entitled to do so in 2018 and 2019.

PN1788

The disputed wording of clause 16 didn't change upon the commencement of the 2019 enterprise agreement. There was no agreement between the parties for a change to the current crew levels, so the situation is the same. McCain is still entitled to rely on the reduced crew levels, pursuant to clause 16.

PN1789

What the AMWU needs to establish is that the same language in clause 16 now means something different, upon the commencement of the 2019 enterprise agreement, than that same wording meant in 2018 and 2019 after the consultation and change process. The AMWU needs to establish that changes to planned crew levels, pursuant to clause 16 are not operational from one agreement to another and that McCain needed to revert back to the planned crew levels in clause 16.1, despite the fact that they had been changed pursuant to clause 16.2.

PN1790

But clause 16 doesn't provide that changes to the planned crew levels pursuant to clause 16.2, are temporary. Appendix 1 doesn't say that developments that occurred under Appendix 1 during the life to the 2016 enterprise agreement, under clauses that are worded the same way in the 2019 enterprise agreement, stopped applying upon commencement of the 2019 enterprise agreement. By contrast, numerous clauses demonstrate the continuous operation of Appendix 1, including clause 3.1 which requires McCain to give one month's notice to end the seven day continuous shift arrangement and clause 17 which requires McCain to consult with employee representatives when relevant changes in the 24/7 default roster can no longer be supported.

PN1791

The text of Appendix 1, viewed as a whole, further demonstrates that neither the wording of Appendix 1 nor the common intention of the parties was that the terms and conditions of Appendix 1 would reset upon the commencement of the 2019 enterprise agreement. We see this in clause 2.1 in Appendix 1 which refers to matters that must occur prior to the implementation of the seven day continuous shift arrangement.

PN1792

No one is suggesting that the seven day continuous shift arrangements have reset under the 2019 enterprise agreement, so that the seven day continuous shift arrangements are no longer operating. So too, do the changes to the planned crew levels under clause 16 continue. We see this in clause 2.2.1 of Appendix 1 which refers to the entitlement of job share arrangements. No one is suggesting that the job share arrangements have a reset under the 2019 enterprise agreement, so that they are no longer in effect.

PN1793

So too, do the changes to the planned crew levels under clause 16 continue. We see this in clause 5.2 of Appendix 1 which provides that the start times of each shift may be open to agreement between the parties. No one was suggesting that agreements to date about the start times of each shift have reset under the 2019 enterprise agreement, so that they're no longer of effect. So too, do the changes to the planned crew levels under clause 16 continue.

PN1794

We see this in clause 15 of Appendix 1 which requires the implementation of a first aider on each shift and crew. No one is suggesting that those employees who have been assigned to first aider work, have had their assignments reset under the 2019 enterprise agreement, except the assignments have no effect. So too, do the changes to the planned crew levels under clause 16 continue.

PN1795

Therefore, Appendix 1 was not intended to reset upon the commencement of the 2019 enterprise agreement. Clause 16 was not intended to reset upon the commencement of the 2019 enterprise agreement and McCain was entitled to continue to rely on clause 16 upon the commencement of the 2019 enterprise agreement, in the same way that McCain have relied on that clause for all those years that came before. Clause 16 entitled McCain to continue to operate under the actual current reduced crew levels that were the result of the change process pursuant to clause 16.2.

PN1796

The numbers listed in clause 16.1 have been changed. They do not apply anymore; they have not applied for years and McCain is no longer required to apply those numbers now, than McCain was required to do so from 2018 onwards. McCain is entitled to continue with those changes to the planned crew levels in clause 16, just as employees and McCain are entitled to continue with all of the other changes that have occurred under Appendix 1 between the 2016 and 2019 enterprise agreements. There is nothing in clause 16 or anywhere else that obliged of permitted McCain to revert back to the planned crew levels from the current changed crew levels. That this is so, just as there is nothing that necessarily obliges or permits McCain to revert back to how things were under numerous other parts of Appendix 1, particularly where this would be a detriment to employees.

PN1797

To the question, is McCain required to roster 11 people in the potato packing area, pursuant to clause 16.1? The answer is no because the number 11 in clause 16.1 has been changed by clause 16.2 and therefore no longer applies.

PN1798

Deputy President, McCain's technical construction of the disputed clause 16, is contained in particular, in paragraphs 13 to 78 of the respondent's submissions. The arguments are long and involved and McCain relies on a high volume of arguments to support its technical position and the construction involves quite a dense application of a lot of the facts and technical issues in the dispute, although the conclusion is the same as what I have just provided.

PN1799

In the respondent's outline of submission, McCain traces through the definitions that need to be afforded to different parts of the text in clause 16.1 and 16.2 in order for the Commission to be able to reach a conclusion about the meaning of the disputed clause as a whole. McCain seeks to highlight now at a high level, the steps that McCain moves through to reach its conclusion and the components that McCain says need to be interpreted to resolve the construction of clause 16.

PN1800

We start with a matter that you raised earlier, Deputy President, so first we start with clause 16.1 and that clause begins with the sentence:

PN1801

Prior to the commencement of this agreement, crew levels have been established to reflect workloads, rosters and business means.

PN1802

In relation to the sentence, the Commission must first determine the meaning of the word 'agreement'. Now, McCain says the definition of the words agreement here is the McCain Foods Ballarat Production Employees Seven Day Continuous Shift Roster Agreement 2014, meaning Appendix 1 as opposed to the body of the 2019 enterprise agreement.

PN1803

I'll begin by addressing the Commission on the meaning on the use of the word agreement in Appendix 1. Deputy President, the Commission may have tried to give a greater consistency to the use of the phrases 'this agreement' and 'that agreement', then Appendix 1 2019 enterprise agreement actually provides us. At paragraph 30 to 44 of the respondent's submissions, the respondent makes detailed submissions about the meaning of the use of the word agreement on each occasion that that word is used throughout Appendix 1.

PN1804

If one looks at the use of the phrases 'this agreement' and 'that agreement', the McCain's initial position is that those phrases, unfortunately for everybody, are not used consistently in Appendix 1. McCains says that the only way to interpret the meaning of each use of the word agreement, is to look at the purpose and context of each occasion that the word agreement is used. That is simply because of the lack of consistency in the drafting in Appendix 1. That is what we are left with to determine the meaning of the word agreement on each occasion that it's used.

PN1805

Deputy President, I now turn to paragraph 37 of the respondent's submissions. Would you like me to give you a court book reference or are you able to – I don't intend to share my screen, but I wish to speak to paragraphs 37 to 41 of the respondent's submissions.

PN1806

THE DEPUTY PRESIDENT: I have them.

PN1807

MS STOJANOVA: Thank you, Deputy President. So, 37 to 41 contain the core description of the assessment that the respondent has done. The honest, straight forward assessment that the respondent has completed of each occasion that the word agreement is used in Appendix 1 of the 2019 enterprise agreement and the different meanings that are afforded to the use of the word agreement in Appendix 1.

PN1808

So, at 37, the respondent has analysed and listed the occasions when the word agreement means Appendix 1 and so we see that in clause one, which provides a definition of the word agreement as meaning Appendix 1. We see it in clause 16.1 which refers to the crew levels listed in and regulated by Appendix 1. We see it in the first sentence in clause 16.2 which again refers to the crew levels listed in Appendix 1 and we see it in clause 17.1 which refers to the provisions in Appendix 1 generally.

PN1809

When we look at paragraph 38 of the respondent's submissions, we see another use of the word agreement that is different to what's been discussed in the hearing today. Sometimes Appendix 1 uses the word agreement to mean the act of agreeing, or of coming to a mutual agreement. We see that in clause 2.1.1, 2.2.2 and 5.2. On one occasion, Appendix 1 appears to use the word agreement as meaning both Appendix 1 and the 2019 enterprise agreement.

PN1810

But in clause 40, we see the occasions when Appendix 1 uses the word agreement to refer to the body of the 2019 enterprise agreement and it does that when those clauses, the clauses to which Appendix 1 is referring, don't exist in the Appendix 1 agreement. They only exist in the body of the enterprise agreement. We see this in clause 2.2.1 which refers to the temporary employment clause 32 of the body of the enterprise agreement. There is no clause 32 in Appendix 1.

PN1811

We see it in clause 8.6 which states that the annual leave provisions of the body of the enterprise agreement will apply in addition to the annual leave provisions in Appendix 1. Clause 9.1 says that personal and carer's leave will accrue in accordance with clause 16 of the body of the enterprise agreement and clause 9.2 provides further guidance about how personal carer's leave would be paid under Appendix 1. Clause 11.1 states that the provisions of the body of the enterprise agreement will apply in relation to jury service and compassionate leave and clause 11.1 also provides further guidance about how those entitlements will be adjusted to workers as relevant pursuant to Appendix 1.

PN1812

Then we have the second reference to the word agreement in clause 16.2 which refers to the consultation clause 10, which exists in the body of the enterprise agreement. What the respondent says is that the only way to determine the meaning of the use of the word agreement is to look at the context and purpose in a way that the respondent has done.

PN1813

For the record, what McCain says is that clause one intends to give meaning to the word agreement, not the phrase this agreement. That's another matter of construction for the Commission, but the respondent says that ultimately that matter of construction will be resolved in the same way as the respondent has described thus far, given the drafting issues of Appendix 1 which is to consider the context and purpose of each use of the word agreement in Appendix 1.

PN1814

THE DEPUTY PRESIDENT: I'm sorry, this is the use of the word agreement in clause one of Appendix 1?

PN1815

MS STOJANOVA: Yes, so what McCain says is that clause one gives effect and defines the word agreement, not the phrase this agreement. Can I continue, Deputy President?

PN1816

THE DEPUTY PRESIDENT: Well, I don't find that compelling.

PN1817

MS STOJANOVA: Well, ultimately, the issue that we have with Appendix 1 is that it has not been drafted in a consistent manner. Deputy President, you may have already done this, but Appendix 1 does not consistently apply the phrases this agreement and that agreement.

PN1818

THE DEPUTY PRESIDENT: Appendix 1 does what a lot of things do in agreements that just get rolled over. It suffers from a lack of care and attention from the drafters of the agreement. Everyone gets so exhausted at the end of enterprise bargaining, that they leave in clauses that should be cleaned up and mistakes are made and it just perpetuates time and time again as agreements are rolled over. If it wasn't the case, the Commission would lose a lot of its jurisdiction because what we then get is parties coming to us with disputes and telling us what their poorly drafted documents should mean.

PN1819

But anyway. Yes, I just struggle with that meaning.

PN1820

MS STOJANOVA: Deputy President, you may have already reviewed the use of the word agreement on each occasion throughout Appendix 1. But ultimately McCain's position is that Appendix 1 has been drafted in an inconsistent manner when it comes to the use of the word agreement, amongst other things and it is – the meaning to be given to the word agreement in the disputed clause 16 is a matter of construction for the Commission to determine this dispute. McCain's primary submission is that that can – the truest way and the clearest way and the most accurate way for the Commission to determine the meaning of the word agreement on any given occasion, for our purposes in relation to the disputed clause is to consider the context and the purpose of the use of that word.

PN1821

THE DEPUTY PRESIDENT: One of the challenges you've got though, as stated in Mr McCain's evidence, in effect says I didn't think it was necessary to make any changes to 16.1 because it was redundant. Yet there were many other changes made, a number of other changes made to the Appendix, including the removal of redundant provisions.

PN1822

MS STOJANOVA: Why McCain's first witness statement provides more nuanced description of why McCain did what McCain did in negotiations for the 2019 enterprise agreement in relation to clause 16.1, and that was, why McCain said from the outset - - -

PN1823

THE DEPUTY PRESIDENT: They didn't want to fight on every point, they wanted to quickly get an agreement done and they wanted to agree on fundamentals and move on.

PN1824

MS STOJANOVA: That is part of what Brian McCain said, but Brian McCain also said that McCain was focussed on dealing with the union's log of claims and that McCain did not put forward claims of any substance outside of the union log of claims because just wanted to deal with the things that the union wanted. If a matter was in the union log of claims, and it was something that the union wanted, then McCain wouldn't be in a position to anticipate that there would have been less resistance on those points.

PN1825

What McCain is saying is that clause 16.1 and the crewing numbers were not raised by the union, therefore McCain did not go on to raise a bargaining issue, the updating of clause 16.1 crew members, which McCain did think were redundant. Brian McCain's evidence is also that he didn't feel the need at that point, because the crew numbers were redundant, therefore it was of no detriment to McCain to continue to have them in there.

PN1826

I should also say, Deputy President, that McCain's submission about the interpretation of the use of the word agreement, that the only way the meaning can be obtained in Appendix 1 is to look at the existing purpose of the word. That is McCain's primary submission, and that is the submission that McCain says is straightforward and honest and reasonable that if the Commission finds against McCain on that position, then McCain's in the alternative argument is that clause one renders every reference to the word agreement to mean Appendix 1.

PN1827

THE DEPUTY PRESIDENT: How does that make sense if one looks at the use of the word agreement in 16.2? The other uses in the leave clauses, the jury service clause, for example.

PN1828

MS STOJANOVA: Well, McCain says - - -

PN1829

THE DEPUTY PRESIDENT: And 2.2.1 clause 32 of this agreement, when Appendix 2 clearly doesn't have a clause 32.

PN1830

MS STOJANOVA: So, McCain's primary submission is that Appendix 1 has not been drafted in a consistent manner and the phrases this agreement and that agreement are not applied consistently throughout Appendix 1. Therefore, it is the context in purpose, interpretative principle that should be applied by the Commission. But if the Commission rejects that approach, which is the respondent primary submission and which the respondent says is the (indistinct) rejects that interpretative approach, then the Commission will still have to have some sort of principle, some sort of rationale to determine how the word agreement is applied in the disputed clause. In those circumstances McCain's in the alternative argument is that clause one should be applied to render every reference to the word agreement as meaning Appendix 1.

PN1831

Now, as you said, Deputy President, you've pointed to a clause that I also would have pointed to, clause 2.2.1. There are some references to the phrase this agreement which do clearly appear to be referring to Appendix 1 and that reference to this agreement in clause 2.2.1 does not appear to be referring to Appendix 1. If you look at the context and purpose of that word, it appears to be referring to a clause which doesn't exist in Appendix 1 which comes from the main body of the enterprise agreement.

PN1832

Again, what McCain asks the Commission to do, is to consider the context and purpose of each use of the word agreement. McCain suggest that is the preferable approach. But that if that is rejected, and then McCain suggests, I guess, a black-letter approach, a more mechanical approach to the determination of the use of the word agreement in Appendix 1.

PN1833

THE DEPUTY PRESIDENT: Right.

PN1834

MS STOJANOVA: So, I believe I said that – I made the point when I was looking at taking you through the respondent's submissions that the respondent says that it's plain that the word agreement in clause 16.1 means Appendix 1 because clause 16.1 refer to the plant chronicles stated in clause 16.1. So, returning to the first sentence in clause 16.1:

PN1835

Prior to the commencement of disagreement, crew levels have been established to reflect workloads, rosters and business needs.

PN1836

That first sentence is giving us the formula for a date or a point in time when the planned crewing levels that we see in Appendix 1 were established. We need to work out what that date is to understand the meaning of that clause. The Commission must therefore determine when the crew levels were established in the disputed clause 16.1. The crew levels were established prior to the commencement of this agreement, so the Commission must determine when this agreement commenced.

PN1837

The Commission must interpret the meaning of the words 'prior to the commencement of this agreement'. What point in time or date do those refer to. The respondent has argued that the word agreement means Appendix 1 and therefore the question becomes when Appendix 1 commenced. Now the first version of Appendix 1 appeared in the McCain Foods (Australia) Pty Ltd Ballarat Production Enterprise Agreement 2014, but that version, in the 2014 agreement of Appendix 1 did not have the disputed clause 16, that is the basis of today's hearing. It was in the 2016 enterprise agreement that we had an appendix that was similar to our disputed Appendix 1 and that contained a similar version of the disputed clause 16.

PN1838

Therefore, to the question, when did Appendix 1 commence? The answer is no later than the 2016 enterprise agreement on 1 March 2017 and to the question when were the planned crewing levels in the disputed clause 16 established? The answer is, the planned crewing levels in the disputed clause 16.1 were established no later than the commencement of the 2016 enterprise agreement on 1 March 2017. The word 'established' means found, bring into being or brought into existence. The clause 16.1 planned crewing levels were brought into existence in Appendix 1 of the 2016 enterprise agreement.

PN1839

The crewing levels in the disputed clause 16.1 simply and in actuality were not brought into existence with the commencement of the 2019 enterprise agreement, because they'd already been brought into existence in the 2016 enterprise agreement.

PN1840

The first sentence in clause 16.2 says:

PN1841

The planned crewing levels may be subject to change due to changes in investment in capability and technology from those in place at the commencement of this agreement.

PN1842

It's plain that the reference to the word agreement in clause 16.2 means Appendix 1 because this sentence in clause 16.2 refers to the planned crewing levels listed in clause 16.1 of Appendix 1. Therefore, the first sentence in clause 16.2 can be interpreted as:

PN1843

The planned crewing levels may be subject to change due to changes in investment in capability and technology from those in place upon commencement of Appendix 1.

PN1844

This means that a relevant change in investment that led to a change to the crewing levels could be a relevant change in investment since the commencement of the 2016 enterprise agreement on 1 March 2017. Under the 2016 enterprise agreement McCain lawfully reduced the planned crewing levels, subject to the consultation and change process in 2017.

PN1845

McCain is not required to consult again under the 2019 enterprise agreement for changes to the planned original crewing levels under the 2016 enterprise agreement. Those changes remain operational. Again, we then ultimately return to the same key arguments that I was making at the beginning of the closing, which is that Appendix 1 as a whole does not reset between the 2016 and 2019 enterprise agreements. There were numerous provisions of Appendix 1 in the 2016 enterprise agreement that are expressed in the same way under the 2019 enterprise agreement. No one is suggesting all of those provisions simply reset under the 2019 enterprise agreement, and I went through those clauses earlier in the closing.

PN1846

So, we come to the same conclusion which is McCain is no more required to increase crewing levels under the 2019 enterprise agreement than McCain was required to do so after it changed the planned crewing levels under the 2016 enterprise agreement. The planned original crewing levels are still as listed in 16.1, but McCain changed those planned crewing levels in 2017 and 2018 and McCain is entitled to continue with those changes to the planned crewing levels in clause 16, just like employees and McCain are entitled to continue with all of the other relevant changes that have occurred under Appendix 1 between the 2016 and 2019 agreements.

PN1847

Deputy President the respondent intends to now move to make comments about the ANW case and the ANW witnesses.

PN1848

THE DEPUTY PRESIDENT: All right, what do you say about the second sentence in 16.1?

PN1849

MS STOJANOVA: The respondent says that the second sentence in clause 16.1, which I will just read out:

PN1850

Any such change will be subject to consultation under clause 10 of the agreement.

PN1851

THE DEPUTY PRESIDENT: No, no, second sentence of clause 16.1; that's clause 16.2.

PN1852

MS STOJANOVA: Sorry.

PN1853

Crewing levels for the potato products plant are as follows:

PN1854

MS STOJANOVA: Is that the sentence?

PN1855

THE DEPUTY PRESIDENT: Yes, that's the sentence.

PN1856

MS STOJANOVA: Potentially, submissions are relevant on the use of the word 'are', as a present tense in that second sentence. What McCain says about the second sentence of clause 16.2 is consistent with what McCain has said about the planned crewing levels in 16.1 to date. The use of the word 'are' to describe the crewing levels in the potato products plant refers to the point in time when the plant was introduced, which I have just said, McCain has just said, was no later than prior to the commencement of the 2016 enterprise agreement.

PN1857

When the planned crewing levels were introduced, when the planned crewing levels were wide and current, it was accurate for the word 'are' to be used, just like it was accurate for the numbers of the planned crewing levels to be used. But since that point in time, the planned crewing levels were changed in accordance with the change procedure set out in clause 16.2. Since that point in time, the planned crewing level numbers in clause 16.1 are redundant and the word 'are' is redundant too and for the same reasons.

PN1858

The planned crewing levels are only able to last until they are changed, pursuant to the change process in clause 16.2. That process is contemplated by the disputed clause as it stands. So, McCain's response to why the second sentence in clause 16.1 is redundant is the same as McCain's arguments about why those numbers, those planned crew levels are redundant.

PN1859

The second sentence of 16.1 doesn't use planned crewing levels, it says crewing levels and it uses the present tense. Why wouldn't it have said crewing levels for potato products plant were as follows?

PN1860

MS STOJANOVA: Well, that goes back to the same submissions that I made earlier about why McCain and why Brian McCain didn't make any changes to - - -

PN1861

THE DEPUTY PRESIDENT: I know why he didn't make any changes, but why wouldn't it have said that?

PN1862

MS STOJANOVA: In what context, Deputy President? Why wouldn't it have said that - - -

PN1863

THE DEPUTY PRESIDENT: Well, leaving something in an agreement that clearly doesn't work.

PN1864

MS STOJANOVA: So, why wouldn't – why didn't McCain change the word 'are' to the word 'were' during negotiations for the 2019 enterprise agreement?

PN1865

THE DEPUTY PRESIDENT: Yes.

PN1866

MS STOJANOVA: So, the answer to that is the same answer that I gave before.

PN1867

THE DEPUTY PRESIDENT: Or, why didn't they say what they had been changed to in 2017?

PN1868

MS STOJANOVA: That is entirely the matter that Brian McCain gave evidence about and discussed this - - -

PN1869

THE DEPUTY PRESIDENT: Because they didn't want to bell the cat.

PN1870

MS STOJANOVA: Correct. If McCain - - -

PN1871

THE DEPUTY PRESIDENT: I mean, I'm just putting that as a supposition. They didn't want to bell the cat.

PN1872

MS STOJANOVA: Well, that's Brian McCain's evidence.

PN1873

THE DEPUTY PRESIDENT: If they had have belled the cat, the agreement wouldn't have been forthcoming. If the parties had gone through the consultation process and there was some residual disquiet about it, you're going through to negotiate the 2019 agreement. I mean I don't know why it wasn't cleaned up in drafting. The parties had enough meetings to do so.

PN1874

MS STOJANOVA: But Deputy President, Brian McCain has given evidence directly on this point, which is that McCain made a decision that McCain would not seek to negotiate outside of the union's log of claims. He says that expressly in his first witness statement.

PN1875

THE DEPUTY PRESIDENT: Yes, I know what he said, but then they're left with the wording on the other terms, in the balance of the terms which weren't changed as it's written.

PN1876

MS STOJANOVA: Deputy President, if your suggestion is that it would have been preferable for the parties to update clause 16.1 in order to avoid this type of arbitration, then I don't think you're going to find any resistance from McCain. Now, Deputy President, before I forget, there was another point that you made about the wording of clause 16.1 just now, which was the fact that clause 16.1 uses the words crewing levels one two occasions. In response to that, and in a manner that's consistent with the redundancy arguments that McCain has made about clause 16.1, what McCain says is that, as McCain just discussed, the Commission has to interpret the meaning of the words 'prior to the commencement of this agreement' in order to construe the meaning of clause 16.1.

PN1877

McCain said just now, made submissions and has made these submissions through the respondent's written submissions that clause 16.1 and the words 'prior to the commencement of this agreement' mean prior to the commencement of the Appendix on 1 March 2017. That it was at that point in time that the crewing levels that are listed in clause 16.1 were established. But that the entire purpose of clause 16.2 is there to change the crewing levels that were originally established in clause 16.1.

PN1878

McCain further says that the reference to planned crewing levels in clause 16.2 is reasonably applied to mean the one and only seat of original planned crewing levels that has ever existed, to our knowledge, in the history of this enterprise agreement and all of the predecessor enterprise agreements that came before.

PN1879

Deputy President, subject to questions and until those questions come, I'll continue with my closing.

PN1880

THE DEPUTY PRESIDENT: Yes.

PN1881

MS STOJANOVA: The respondent will now make comments about the AMWU case and AMWU witnesses. So, beginning with comments about the AMWU case. This dispute is about the construction of a clause in an enterprise agreement, and as a result, the Commission is limited in the kind of evidence that the Commission can rely upon to resolve this interpretation dispute and the respondent will make comment about that in a moment. But putting that to the side for now, what the AMWU has put to this Commission is that Angela McCarthy and Ross Kenna and other AMWU negotiators, specifically and expressly negotiated the set crew levels to increase to a 11 people in the disputed potato packing area, pursuant to the disputed clause 16 in negotiations for the 2019 enterprise agreement.

PN1882

The AMWU has made a positive claim that that occurred. The AMWU therefore bears the evidentiary burden of establishing their positive claim. That is a contested assertion that the Commission cannot accept, because the AMWU has not produced any evidence to support this belated assertion by the witnesses referred to, namely Angela McCarthy and Ross Kenna. The AMWU has not produced a file note or an email or a log of claim that shows that the AMWU ever did that – nothing. The AMWU can't demonstrate when they purportedly said this, who they said this to, or how they communicated this, because it didn't happen.

PN1883

During cross-examination Angela McCarthy admitted that she didn't know how many people were employed in the potato packing area during negotiations for the 2019 enterprise agreement. So, it isn't believable that Angela McCarthy was negotiating as a central issue to change the number of people in the potato packing area. This lack of evidence is inconsistent with the assertions that the AMWU has made to this Commission that having 11 people in the potato packing area was an essential demand of the AMWU. No, it wasn't. No one ever brought it up and that's why there's no evidence that anybody ever brought it up during negotiation. That's despite the fact that that assertion that the AMWU negotiated on this point, is the centre-piece of the AMWU's evidence in this case.

PN1884

The AMWU never negotiated on having 11 workers in the potato packing area during negotiations between the AMWU and McCain for the 2019 enterprise agreement. The AMWU never raised that the AMWU wanted 11 workers in the potato packing area during negotiations. The union used this phrase 'set manning levels in each area'. The respondent has provided cogent evidence, including admissions made by Angela McCarthy and Ross Kenna during cross-examination that the phrase set manning levels in each area referred to safety related amendments to the main body of the 2019 enterprise agreement, not Appendix 1. Specifically, the inclusion of clause 27.9 into the 2019 enterprise agreement, noting this clause was originally drafted as clause number 26.10.

PN1885

In any case, besides the AMWU's belated assertions in this hearing there is not one piece of evidence, not one exhibit, not one document, not one record that the Commission has received in this hearing that ties the words set manning levels in each area, to either the disputed clause 16 or that ties those words to there being 11 people in the disputed potato packing area. The AMWU's claim that the words set manning levels in each area, is related to either the disputed clause 16, or there being 11 people in the disputed potato packing area is unverified before this Commission.

PN1886

The AMWU have not produced any evidence that demonstrates that there was a common understanding of intention between the negotiating parties for the 2019 enterprise agreement about the meaning of the disputed clause 16. The AMWU has not produced any evidence to support the claim that the AMWU ever discussed crewing levels in the disputed clause 16 during negotiations for the 2019 enterprise agreement. The AMWU has not produced any evidence to support the claim that the AMWU raised crewing levels in the disputed clause 16 as a claim during negotiations for the 2019 enterprise agreement.

PN1887

The AMWU did not include in their list of claims, an increased or change to crewing levels, pursuant to clause 16.1 of the 2019 enterprise agreement. The AMWU did not demand a specific number of people to be employed in specific parts of the plant and the negotiating parties for the 2019 enterprise agreement did not discuss or negotiate the specific number of employees to be employed in specific parts of the plant. The negotiations for the 2019 enterprise agreement did not set crew levels in any area including 11 per shift in the potato packing area pursuant to the dispute of clause 16 or otherwise. There was no agreement between the negotiating parties to change the current crew levels in the potato packing area to revert back to the crewing levels listed in clause 16.1 of Appendix 1.

PN1888

The AMWU did not, at all times, put full and complete information before this Commission and the example that McCain gives in that respect is when the AMWU sent an edited version of Commissioner Cribb's email to this Commission during Ross Kenna's evidence, which had cut out all of the references by Commissioner Cribb in the body of that email, to the negotiations that were concerned with safe manning levels. McCain suggests that the AMWU remove this language because Commissioner Cribb's repeated references to the words 'safe manning levels', supports the respondent's position that the words 'set manning levels' for each area meant introducing safe manning levels and that's what the parties were negotiating about.

PN1889

Turning to the AMWU witnesses, Angela McCarthy and Ross Kenna did not appear to be witnesses of credit at all times. They were evasive on multiple occasions and both of these witnesses repeatedly did not answer questions that were asked of them. McCain suggests that they were not straightforward, that they were with an agenda and that they changed answers that they had given when they realised that their answers didn't accord with that agenda.

PN1890

Angela McCarthy repeatedly gave evidence that it was critical to Angela McCarthy, an essential demand of the AMWU to get staff in the potato packing area to 11. But that's inconsistent with the fact that she didn't know how many people were working in that area and that she never produced a record to the Commission that supported this central demand. During cross-examination when Ms McCarthy was taken through the in-principal agreement that she signed by McCain's fourth exhibit, when Ms McCarthy was taken through the meaning of each part of items 6 and 29, she agreed to everything that I said about the meaning of each column. But when I put it to her that she had signed to all of those things, she tried to say that she hadn't.

PN1891

Ms McCarthy tried to allege that her signature was limited to only the things that weren't damaging to the AMWU case, namely that the words set manning levels for each area meant making changes to clauses that were not the disputed clause 16. Ms McCarthy admitted in paragraph 27 of her witness statement, the word 'we' in a sentence 'we were content that 11' in clause 16.1 of Appendix 1 actually meant 11, was referring to the AMWU. But then when she was cross-examined on the fact that we therefore did not include McClain management, she resiled from her answer and suggested that 'we' meant everyone.

PN1892

Ross Kenna agreed that the union demand set manning levels for each area, meant the inclusion of clauses 27.9, 8.4 and 20.14 in the 2019 enterprise agreement. He agreed that the union demand set manning levels for each area meant safety changes. Then when it was put to him that the union demand set manning levels for each area, therefore it did not mean change to the disputed clause 16, he changed the answers that he had just given.

PN1893

Mr Kenna was questioned on paragraph 36 of his second witness statement, when he said 'I was clear in my mind that the agreement was delivering a crewing level of 11 in potato packing'. When he was asked if the words 'clear in my mind', meant clear in his mind, he agreed. But when it was put to him that those words said nothing of what McCain thought, he went back on the evidence he had just given and appeared to suggest that the words clear in my mind, also related to what McCain understood.

PN1894

Sue McInerney did not appear to have knowledge that was of assistance to this Commission. This dispute is about the set or mandatory of dedicated crewing levels in the disputed potato packing area. This witness did not know what those set crew levels were. She said she didn't know that they were originally 11. She said that they had never been 11 and that they had only been 10, although of course, this is inconsistent with the view of both parties, and one notes that for example, the AMWU states in their form F10 at paragraph 2.1 that the crewing levels in the potato packing area were 11, at some point.

PN1895

This witness gave evidence that she did not know about the fact that in 2017 McCain undertook a consultation and change process in relation to crew levels, which is unusual, given that she should have been part of the large scale consultation process, as set out in paragraphs 5 to 15 of Brian McCain's first witness statement. This witness gave evidence that she was not aware that in January 2018, and as a result of that major consultation and change process, set crewing levels in the disputed potato packing area dropped from 11 people to eight people.

PN1896

The witness gave evidence that she was not aware that since 30 April 2021, set crewing levels for all product lines in the potato packing area of the potato products plant went up to nine people. This witness did not appear to understand the nuance in this dispute of McCain training casuals on a shift for a certain period of time as being something distinct from McCain agreeing to commit to a different higher set of crewing levels.

PN1897

In response to certain pieces of evidence given by the AMWU witnesses, McCain also notes that the disputed clause 16 does not have fairness, safety or break scheduling criteria. Safety and break requirements exist in other sections of the 2019 enterprise agreement, in particular, clauses 27.9 and 20.14, is I believe the whole break schedule, not the disputed clause 16.

PN1898

The respondent turns now to the admissible evidence that's available to the Commission to determine this dispute. Deputy President, I know that you're aware of the law in this area, but I just want to set out these principles to make points about how McCain has presented its case and the kind of evidence that it relies on. The Commission in this dispute will consider the ordinary meaning of the relevant words the Commission may have regard to the context and purpose of the disputed language in the agreement. The Commission may consider the text of the agreement as a whole. The Commission may consider the disputed provisions place and arrangement in the agreement. The Commission may consider the legislative context in which this agreement is made. The Commission cannot rewrite the agreement. The Commission is entitled to identify what a reasonable person would understand by the language the parties have used to express the agreement. The Commission is not entitled to have regard to the subjective intentions or expectations of the parties.

PN1899

Now, as you sat in this hearing, Deputy President, the subjective views of what any of the witnesses thought, the meaning of the disputed clause 16 is information upon which the Commission cannot rely on the Commission's construction of the disputed clause 16. The Commission will need to determine if the agreement has a plain meaning or an ambiguous meaning, and to make this determination, the Commission may rely on evidence of surrounding circumstances. The Commission holds that the agreement has a plain meaning that the Commission cannot admit evidence of surrounding circumstances to contradict that plain meaning, if the language of the agreement is ambiguous and the Commission may rely on evidence as to surrounding circumstances to aid interpretation.

PN1900

That the law uses the expression 'surrounding circumstances' but that only means that the Commission can rely on evidence that establishes objective background facts known to both parties and which inform the subject matter of the agreement. The Commission must disregard the evidence that it has heard from the AMWU and other statements and actions of the AMWU witnesses, that are supposed to be reflective of their intentions and their expectations of the disputed clause 16.

PN1901

In recognition of the fact that the Commission may rely on evidence of surrounding circumstances to make the determination about whether the agreement has a plain or ambiguous meaning, McCain has provided evidence which demonstrates that the negotiations for the proposed 2019 enterprise agreement never discussed, let alone agreed anything about crewing levels in the disputed clause 16. McCain has also established the occurrence of the 2017 consultation and change process which reduced the set crew levels in the disputed potato packing area during the 2016 enterprise agreement.

PN1902

None of the evidence of the AMWU presented to this Commission went to objective facts that were known to both the AMWU and McCain and which informed the subject matter of the disputed clause 16. The AMWU evidence can't reach this threshold because the AMWU doesn't have the evidence to reach this threshold. The AMWU couldn't provide the Commission with evidence of prior negotiations for the disputed clause 16 to the extent that the negotiations tended to establish objective background facts known to all parties that inform the subject matter of the agreement because negotiations for the 2019 enterprise agreement never discussed, let alone agreed anything about crewing levels in the disputed clause 16.

PN1903

The AMWU couldn't provide the Commission with meritorious facts or which knowledge is to be presumed, because negotiations for the proposed 2019 enterprise agreement never discussed or agreed anything about crewing levels in the disputed clause 16. The AMWU couldn't provide the Commission with evidence of matters in common contemplation and constituting a common assumption because negotiations for the 2019 enterprise agreement never discussed, let along agreed anything about crewing levels in the disputed clause 16.

PN1904

The AMWU case did not include any evidence that the AMWU raised crewing levels in the disputed clause 16 in any log of claims in any agenda item, in any negotiation notes, in any negotiation meetings and that's because they didn't. The evidence that the AMWU presented to the Commission in this hearing, did not even establish that the AMWU had a negotiating position about the set crewing levels in the disputed clause 16. The evidence that the AMWU presented to the Commission in this hearing, did not establish that the AMWU talked to McCain about the set crewing levels in the disputed clause 16 as part of negotiations for the 2019 enterprise agreement.

PN1905

Even if the AMWU was able to establish any of those matters, the law still restricts the Commission's ability to admit and rely upon evidence of prior negotiations and that's because the ultimate task for this Commission in this matter is to determine the proper construction of the disputed text based on the objective meaning of the disputed language. The respondent's case is based on the proper construction of the disputed text based on the objective meaning of the disputed language.

PN1906

Now, the respondent has referred to the history of the disputed clause 16 in predecessor enterprise agreements because the text in the disputed clause 16.1 referred to that history in the wording, prior to the commencement of this agreement. This is permissible under authorities such as Hercus which allows the Commission in the case of an expression with a known source to look at its creation, understand its original meaning and then see how it's used now. We know that the disputed clause 16.1 has a known source because it refers to its own history with the words prior to the commencement of this agreement and we can see that the disputed clause 16 was worded in a similar way in the 2016 and 2019 enterprise agreements, except for the gender neutral change of the word 'manning' to 'crewing'.

PN1907

The Commission is permitted to consider the history of disputed language, but here it is the disputed text itself, which refers to its own history and therefore there is a greater than usual impetus on the Commission to consider the history of the disputed language. The respondent has not led a common understanding argument. By contrast the respondent's case today is that negotiations for the proposed 2019 enterprise agreement never discussed, let alone agreed anything about crewing levels in the disputed clause 16 including the potato packing area.

PN1908

Likewise, the respondent's case did not rely on the post-agreement conduct of the AMWU, however, McCain led evidence about the post-agreement conduct of the AMWU in order to demonstrate that the evidence of the AMWU, in particular, the purported subjective intentions of Angela McCarthy and Ross Kenna and the importance of the set crewing levels in the disputed clause 16, the purported importance to those witnesses of the set crewing levels was not accurate.

PN1909

The respondent confirms that the majority of the AMWU witness evidence in this matter is irrelevant so that it cannot rationally affect the assessment of any factored issue. In addition, much of the AMWU's witness evidence was so unreliable as to be irrelevant to the Commission's assessment of evidence, such as hearsay and opinion evidence about the meaning of clause 16 that relates only to an individual's thoughts about the topic and no more. The respondent will move to make comment as discussed in yesterday's hearing about the inadmissibility and unreliability of the AMWU witness statements that were tendered in the Commission yesterday.

PN1910

In relation to the witness statement of Angela McCarthy, this is the first witness statement beginning on page 30 of the court book, the key issue that McCain takes with that witness statement can be dealt with quickly. It is in relation to clause 13 of that statement which McCain says is hearsay and unreliable hearsay at that. In relation to the witness statement of Sue McInerney, at the beginning of the court book on page 63, McCain says that the entire witness statement and what were, in the end, all three exhibits, that the AMWU tendered through this witness are all irrelevant. There's no need to provide a summary of that statement, that's available to the Commission.

PN1911

Just to confirm that my memory of the exhibits that were tendered are correct. The first exhibit to this witness statement is located on page 67 of the court book and appears to be a breaks schedule. I believe the second exhibit for this employee was located on page 73 and it appeared to be a document prepared by the AMWU titled AMWU update that appeared to describe the kind of work being done and the number of people doing work in the disputed potato packing area. I believe that the third exhibit is located on page 54 of the court book and is a risk analysis that did not involve this witness. If I recall correctly, this witness said yesterday that they were not involved in this risk analysis document.

PN1912

Now, this hearing concerns a construction dispute, the interpretation of the dispute at clause 16 of Appendix 1 of the 2019 enterprise agreement. The entirety of this witness statement, including all exhibits are not relevant evidence in any respect. This statement is not relevant to this hearing because it does not contain evidence that if it were accepted, could rationally affect directly or indirectly, the assessment of the probability of the existence of the facts in issue in this proceeding, namely the meaning of the disputed text, in particular, clauses 16.1 and 16.2. The Commission can't rely on this witness statement to resolve the construction dispute about the disputed clause 16 and therefore this witness statement is not a relevant consideration for this hearing.

PN1913

Resolution of the interpretation of the disputed clause 16 will not involve the Commission balancing safety criteria or break scheduling criteria. The Commission is not entitled to have regard to the subjective intentions or expectations of this witness and the respondent seeks that the Commission does not rely on any part of this witness statement or the accompanying exhibits.

PN1914

In relation to the witness statement of Ross Kenna. The first witness statement which begins at the court book on page 74, McCain's objections in relation to inadmissibility aren't the same as the objections that McCain has just made for the witness statement of Sue McInerney which is that the entire witness statement and any exhibits are irrelevant. McCain seeks that the Commission does not rely on this witness statement or any exhibits that it has for the same reasons that McCain just gave for Sue McInerney.

PN1915

Then in relation to the further witness statement of Angela McCarthy, beginning at the court book at page 83, the respondent objects to the following aspects and provisions and paragraphs of that witness statement. Paragraph 11 which is entirely unreliable, hearsay evidence and irrelevant to this dispute. Paragraph 16 which is entirely unreliable hearsay evidence and irrelevant to this dispute. Paragraph 18 which is hearsay and unreliable. Paragraphs 19 to 26 which are irrelevant and in relation to paragraph 27, where Ms McCarthy makes statements about knowledge that we – Ms McCarthy gave evidence that 'we' means the AMWU having relation to the dispute at clause 16.

PN1916

All of that evidence is inadmissible because the Commission is not entitled have regard to the subjective or expectations of the parties and at best, this paragraph only speaks to the subjective intentions of the AMWU. It's also unfounded opinion evidence led to prove the existence of a fact about the existence of which the opinion was expressed, being the knowledge of the AMWU as an undefined entity. It's also hearsay if Ms McCarthy is referring to things that other people of the AMWU says. The respondent seeks that the Commission does not rely on those provisions of Ms McCarthy's second witness statement.

PN1917

Finally, in relation to the further witness statement of Ross Kenna, beginning at the court book at page 99, the respondent objects to the last paragraph, paragraph 36 where Mr Kenna says I was voting on the agreement, it was clear in my mind that the agreement was still agreeing a crew level of 11. This evidence is inadmissible because the Commission is not entitled to rely on the subjective intentions of the parties in this construction dispute, and Mr Kenna's evidence in paragraph 36 speaks only to his mind. McCain seeks that the Commission not rely on that paragraph of Ross Kenna's second witness statement.

PN1918

The respondent also seeks findings that the AMWU did not fulfil Browne v Dunn obligations during cross-examination in relation to ultimately all three of McCain's witnesses. In relation to these failures by the AMWU to fulfil it's Browne v Dunn obligations the respondent seeks the Commission afford less weight to the points in dispute that I'm about to speak to, on the basis that the McCain witnesses were not given an opportunity to deal with the AMWU's contradicting assertions during cross-examination.

PN1919

Starting with Brian McCain, Brian McCain was not cross-examined on his evidence in his witness statement that there was no agreement to change the definition in clause 1 of Appendix 1 of the 2019 enterprise agreement, to mean anything other than a reference to Appendix 1 of the 2019 enterprise agreement. Brian McCain's evidence in that respect, was contained in paragraph 24 of this first witness statement. Brian McCain was also not cross-examined on his evidence that his email to Angela McCarthy and others dated 27 June 2019 with the subject line 'Safe manning clauses 10 and 26.10' was not about the disputed clause 16 in Appendix 1 of the 2019 enterprise agreement. That it was instead about safety related amendments to clauses 10 and 27.9 of the 2019 enterprise agreement. Brian McCain's evidence in that respect is contained in paragraph 30 of his first witness statement.

PN1920

In relation to Desmond Carter, the AMWU did not put to Desmond Carter – he was not cross-examined on his evidence. The AMWU did not raise the content of the form F10 application dispute being the dispute about the crew levels in clause 16 of Appendix 1 of the 2019 enterprise agreement on the date alleged by the AMWU.

PN1921

Finally, the AMWU did not put to Michelle Nebozuk that Ms Nebozuk does not recall agreement to revert back to the crewing levels listed in clause 16.1 of Appendix 1 in the 2016 enterprise agreement or the 2019 enterprise agreement.

PN1922

Deputy President the Commission distributed a document to the parties during Brian McCain's cross-examination. This document appears to explain the effects of the terms of the proposed 2019 enterprise agreement, compared to employee entitlements under the relevant award being the Food, Beverage and Tobacco Manufacturer Award 2010. The document expressly states that page one of the document is not comprehensive of every single clause and every single agreement condition. There is a document in the table with the third column titled what is changing in this agreement and at page 5 the document refers to the insertion of the new clause 27.9 as follows. It describes it as:

PN1923

An agreed process ensures safe crewing levels are in place in any work area at any time.

PN1924

There's a further discussion about that clause in the table. The document does not state that there will be a change to the crewing levels in the disputed potato packing area under the proposed 2019 enterprise agreement.

PN1925

During Mr Wainwright's closing, he referred to some decisions. Deputy President, I will now move through McCain's response to the case law that Mr Wainwright traversed and I know that you will do this anyway, Deputy President, but if it any point that you believe that I've misunderstood any of those cases, from what I was able to recall and write down during Mr Wainwright's closing, then I hope you will put any questions that you have to me.

PN1926

First, Mr Wainwright as I understood, relied on the decision of Health Services to say that there wasn't a common understanding or intention between the parties during the negotiations for the 2019 enterprise agreement. I believe that's what he said. If that is so, that is good. The respondent also says that there wasn't a common understanding or intention between the parties between the negotiations for the 2019 enterprise agreement in relation to the meaning of the disputed clause 16.

PN1927

Mr Wainwright also relied on and discussed the decisions of Jamsek and WorkPac. The respondent says that those decisions have no relevance here in the way that Mr Wainwright sought to rely on them. The applicant relied on those decisions based on what those decisions say about the law in relation to the interpretation of employment contracts. This is not a common law case about the interpretation of an employment contract. It is a dispute about the interpretation of an enterprise agreement, the kind of case law that is relevant to the Commission in the respect of this kind of decision, a dispute about the interpretation of an enterprise agreement, is settled and it is contained unremarkably, I would suggest, in the summary of the law that the respondent provides in its written decisions.

PN1928

The AMWU referred to the Visy decision, an unfair dismissal case before Commissioner Bissett. Now, my understanding is that the rule in Jones v Dunkel that inferences may be able to be drawn against a party if the giving or calling of evidence must have been expected of that party and the failure to call evidence is unexplained. No inference can be drawn against a party for not giving or calling evidence that is not expected if the party, including of course evidence that is irrelevant to a proceeding.

PN1929

Now, I've referred to the rule in Jones v Dunkel. I don't believe Mr Wainwright referred to the case, Jones v Dunkel, but my understanding is that Mr Wainwright's reliance upon the Visy decision was simply a reliance on the principles derived from the rule in Jones v Dunkel, as I have just described. I understand that Mr Wainwright may have found those principles in the Visy decision but that there is nothing unique about the Visy decision in that respect. That ultimately what Mr Wainwright was calling for was a Jones v Dunkel finding against the respondent.

PN1930

I understand that there were two examples that Mr Wainwright gave in the Jones v Dunkel inferences that he was calling for. That the first example was that the AMWU seeks a Jones v Dunkel inference against McCain because McCain did not include in these proceedings, or submit as evidence in these proceedings, the document that the Commission provided to the parties during the cross-examination of Brian McCain, which McCain understands is a document comparing the terms of the proposed enterprise agreement to the underpinning modern award.

PN1931

McCain's position is that it's unclear as to how that document is relevant to this case. That it cannot be said that there was an expectation that McCain would produce that document and therefore, it's not possible for there to be a Jones v Dunkel inference on the basis that McCain did not produce that document. There was also a second Jones v Dunkel inference that the union sought, which was about cold break scheduling issues, as I understood, as I believe I recall from Mr Wainwright's evidence.

PN1932

What McCain says is that anything about the cold breaks schedule, the inclusion of cold break provisions in the 2019 enterprise agreement. That they are irrelevant to this dispute and this arbitration's construction of the disputed clause 16, on the basis that it's irrelevant evidence McCain did not lead that evidence, and there can have been no expectation that McCain would have led that evidence.

PN1933

Clause 16 does not have safety criteria; it does not have break scheduling criteria. The crewing levels that parties set via the disputed clause 16 maybe safe and maybe helpful to maintain break scheduling requirements or they may not be. Clause 16 has no work to do in that respect. Those issues, the safety of crew levels and the break scheduling entitlements of workers are dealt with in other clauses such as clause 27.9 and 20.14 of the 2019 enterprise agreement.

PN1934

In relation to the first example, the reference to the document that the Commission provided to the parties during Brian McCain's evidence, it's unclear to McCain why McCain should have been anymore obliged to produce that document than the union, given that the union would have been in equally as good a position to access that document. McCain is concerned that there were occasions when the AMWU misstated the evidence given by McCain witnesses during the AMWU's closing. For example, in relation to Brian McCain's evidence, it was said that Brian McCain's evidence that employees may have received distribution of exhibit 4, the in-principal agreement to Brian McCain's first statement, was not true, was false evidence, as I understood it, because the Commission distributed the document that the Commission distributed during Brian McCain's evidence.

PN1935

McCain's position is that that's a non sequitur. The first concept does not follow and is not proved by the second concept. Both of those things could be true, that employee received exhibit 4 and that they received the document distributed by the Commission. Michelle Nebozuk didn't say that the words 'set' means 'safe'. What she said was that the union claimed in the photo being presented to her that was named set manning levels, to her knowledge, meant a claim for safety provisions for manning levels.

PN1936

I won't labour on each misstatement, because the transcript says what it says, and the Commission will rely on the transcript if the Commission seeks to rely on any witness testimony.

PN1937

I do make a final point which I raised when I made submissions and when I objected to the admissibility of Sue McInerney's evidence and witness statement and for clarity, I did object to both. There was submissions made by the AMWU in relation to the evidence given by Desmond Carter about the removal of a casual worker by McCain doing work to improve the casual skillset during 2021. This dispute is about the set crewing levels under clause 16. The AMWU wants McCain to recognise, wants McCain to acknowledge, to commit to having set or dedicated or mandatory crew levels of 11, in the disputed potato packing area and McCain does not recognise this obligation. That has been the entirety, the focus of this arbitration.

PN1938

McCain rostering a worker or workers on a shift temporarily is not the same as McCain recognising a change in set crewing level obligations, or McCain changing the set crewing level obligations that Mc Cain recognises. That concludes the respondent's opening.

PN1939

THE DEPUTY PRESIDENT: Or closing.

PN1940

MS STOJANOVA: Closing.

PN1941

THE DEPUTY PRESIDENT: Thank you. All right, Mr Wainwright, anything in reply, please?

PN1942

MR WAINWRIGHT: Yes please, your Honour. I'm hoping we're not opening again, Deputy President. A few points for me to go through and I, in no way, Deputy President, mean to be flippant but it seems to us that an AMWU member in voting on the agreement that was before them, would need a decoder and a time machine to understand the position of the company. That is unacceptable. In 2022, the Fair Work Act 2019 operation, that suggestion is unacceptable.

PN1943

It's disappointing to us that McCain, in this matter, and perhaps generally, doesn't want to hear from their employees. Ms McInerney comes along here to give her evidence and I think she deserves to be treated with respect. I think she deserves to be listened to. I think in terms of the law, she is the epitome of a reasonable person. That is, that's the way that I think. I'm different to everyone else, I understand that. But when I think of a reasonable person, I think of this workplace concept. I think precisely of a person like Sue McInerney. But when you say you don't want to hear from her, and what she says is irrelevant, I'm concerned about that. I think we all should be. But that's a matter for McCains to reflect on.

PN1944

My friend has said that this case is about set crewing levels; that's not correct. Set crewing levels is the term that was on a whiteboard. We had the advantage of the fact that Anna Lee Cribb stood in front of a whiteboard, took a photo and emailed it to everyone, and you can see it, Deputy President. It says what it says. It says that we wanted set crewing levels. Now this is a bit of a shapeshifting case. Set crewing levels become safe crewing levels, nine becomes 11, the agreement becomes appendix. But that's a fact. The set crewing levels was about the negotiation. It's not about the question. The question is about, is the respondent required to allocate 11 staff members per shift in the potato packing crew.

PN1945

Not a set crew. Not a permanent crew and no casuals. Just 11 staff members. That's the question. From our perspective when an employee comes to vote on an agreement that says 11, they should be entitled to understand what they're voting on, without a decoder, without a time machine to go back to 2014, or 2016 or any other time. As I've said, this does not impact on the employer's right to start a process under 16.2 yesterday or tomorrow. They have that right under the agreement. They're not interested in abrogating that right in any way, shape or form; it exists; it's real.

PN1946

The other thing that exists and is real, is the number 11 in the EBA. I think it should be accorded some respect, as I've said. The other thing that has happened in this shapeshifting model, is we're told that the AMWU's goal was to revert back or reset. We didn't want to revert or reset anything. We wanted to achieve a fair level of employment so that the task we're being asked to achieve, we're being asked to do, could be done and could be done safely. Could be done effectively and efficiently. This is not a dispute under the 2016 agreement about the implementation of 16.2. If we had a dispute about that, we would have taken that dispute at the time. This dispute is about the provisions of the 2019 agreement.

PN1947

In terms of when workers are voting on the agreement, were voting on the agreement, they did not have the benefit that the submissions, that had been made in this matter by the respondent, at paragraphs 30 to 44. If they did have, the benefit of those submissions, I don't think it would have helped. I don't think it would have changed the understanding of the agreement. But they didn't. We agree that there is a lack of consistency in the drafting of Appendix 1. Where does that leave you, Deputy President? I think that leaves you to recognise that which is apparent on the page in terms of the crewing in the potato packing area.

PN1948

Mr McCain said – actually I'll withdraw that submission. We say that in terms of (r) in 16.1, means exactly what it means, just as 11 means exactly what it means. I think Deputy President, you made some comments about belling the cat, and then my friend made some comments about cleaning up and drafting. We don't feel that there was any cause for the number 11, as it is listed in the draft at the end of negotiations, to be cleaned up. In our assessment, it is what we bargained for. I just want to remind you, in relation to the submissions that my friend made about numbers, remind you about Ross Kenna's second statement and about what he said at paragraph 8. There's a number in there.

PN1949

In Mr Kenna's evidence, paragraph 8 of his second witness statement, in fact, I recall arguing for more than 11 people to be included in the potato packing team. So, that goes to a few things. We've heard a suggestion that there were no numbers sought and there was no specificity in relation to clause 16. Well, this is a specific number relating to clause 16 and what was showing in terms of bargaining, that 11 is the number that was achieved. It was not the number, at least in relation to Mr Kenna, that was originally sought. But the claim that was made, there's no evidence of any specific numbers, well I say that that is evidence of a specific number.

PN1950

In terms of a further example, Mr Aspland raised in an email that is admissible through the recipients of the email, by the way, the specific issue of crewing levels. My friend took exception to our provision of an edited version of the email. So, I want to go through what occurred. Ross Kenna made a further witness statement. He attached to the further witness statement three photographs. He was then cross-examined about the provenance of the three photographs. It was suggested that they did not in fact come from where he said they came. We provided, and stated at the time, that we provided an edited version. We provided the header of the email to demonstrate precisely where they came from. Which, as it turns out, was precisely where they came from. But that's why that was done.

PN1951

In terms of the points that my friend wants to make about that, she's entitled to do that. But from our perspective, that was the trajectory of that evidence. We are mindful of the fact that Anna Lee Cribb sent those photos to Mr McCain, as well as to Mr Kenna, as well as to Ms McCarthy. So, I think what we should be doing is concentrating more on what the photos show, than some of these side issues.

PN1952

Brian McCain didn't give any evidence about Sue McInerney's participation and consultation during the 2017/2018 change of process. So, to take issue with Sue McInerney's evidence on that point, is, in my submission, unfounded. In terms of her participation in that consultation process, she's the only person who's given evidence on that and there are no grounds at all to challenge that evidence. She's also, Sue McInerney, is also criticised for not understanding the nuance of training casuals. That is a submission that fails to take into account the industrial reality of working at McCains. I'll leave it there.

PN1953

I want to – in terms of the closing submissions that my friend made, I want to try and amplify the point that the goal of the enterprise bargaining negotiations by the AMWU and its representatives, in trying to set crewing levels, was not all about Appendix 1 and clause 16, then have crewing levels, as is apparent, in Appendix 2. So, this application is all about Appendix 1, clause 16, so obviously, we're going to be focussed on it.

PN1954

But take yourself back to the negotiations. In setting crewing levels, those crewing levels in Appendix 2 were as important as the crewing levels in Appendix 1. So, we should not get, in terms of our consideration of the evidence, tunnel vision about that. It's important to keep in mind the industrial reality of what was occurring at the time.

PN1955

A submission was made that Angela McCarthy's evidence in her first witness statement at paragraph 13, is hearsay. We disagree with that submission. Ms McCarthy gave evidence about what her goal is, in the bargaining process, which is to take instructions from her members. We say that that evidence reflects that reality. In regard to equally the Aspland email, Ms McCarthy was copied in to that email and is entitled to bring it as evidence.

PN1956

With regard to submissions that my friend made about Mr Kenna's last paragraph of his second statement, paragraph 36. When I was voting on the agreement, I was clear in my mind that the agreement was delivering a crewing level of 11 in potato packing. That is perhaps the most relevant evidence in this matter, in my submission.

PN1957

In terms of the submissions that were made about Browne v Dunn, the AMWU put all appropriate matters to all of the respondent's witnesses and gave all of those witnesses an opportunity. The matters were put appropriately and comprehensively in our submission. My friend said that clause 16 does not have a safety criteria and I agree. Clause 16 also does not say there should be nine employees in the potato packing area.

PN1958

In terms of the explanation document, that your Honour has provided, that is not the AMWU's document. That document sits within the Fair Work Act; it plays a specific mandated role. It is the respondent's document. There can be no responsibility upon the AMWU in terms of provision of that; we don't own the document, and in my investigations of the file, we don't have the document. The suggest on that we are equally responsible for providing that document to the Commission is mistaken, in my submission.

PN1959

Deputy President, is there any questions – that's all that I want to put?

PN1960

THE DEPUTY PRESIDENT: Thank you. Thank you, I don't have any questions. At this point I'll indicate that my intention is to reserve and I will issue a decision in writing as soon as I am able to do so.

PN1961

I would than the parties for their attention to the directions, the material they've produced. I thank the advocates for their assistance over the last two days. I understand today was a longer day due to varying factors, but I thank them for making themselves available now, so that we could conclude the matter inside the allocated days. So, I appreciate that.

PN1962

I will now adjourn the Commission and wish everyone a good weekend. Thank you.

PN1963

MS STOJANOVA: May it please the Commission.

ADJOURNED INDEFINITELY [4.57 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

BRIAN PEARSON MCCAIN, AFFIRMED..................................................... PN1007

EXAMINATION-IN-CHIEF BY MS STOJANOVA....................................... PN1007

EXHIBIT #R1 WITNESS STATEMENT OF BRIAN MCCAIN DATED 12/05/2022 COMPRISING 32 PARAGRAPHS................................................................... PN1021

EXHIBIT #R2 SUPPLEMENTARY STATEMENT OF BRIAN MCCAIN DATED 27/05/2022 COMPRISING NINE PARAGRAPHS AND ONE ATTACHMENT............ PN1032

EXHIBIT #R3 EMAIL INCLUDING TWO ATTACHMENTS FROM BRIAN MCCAIN............................................................................................................................... PN1053

CROSS-EXAMINATION BY MR WAINWRIGHT....................................... PN1056

RE-EXAMINATION BY MS STOJANOVA.................................................... PN1328

THE WITNESS WITHDREW........................................................................... PN1364

DESMOND STANLEY CARTER, AFFIRMED.............................................. PN1376

EXAMINATION-IN-CHIEF BY MS STOJANOVA....................................... PN1376

EXHIBIT #R4 WITNESS STATEMENT OF DESMOND CARTER, WITH THREE ATTACHMENTS, DATED 12/05/2022 (COMMENCING AT PAGE 244 OF COURT BOOK)............................................................................................................................... PN1397

CROSS-EXAMINATION BY MR WAINWRIGHT....................................... PN1417

RE-EXAMINATION BY MS STOJANOVA.................................................... PN1472

THE WITNESS WITHDREW........................................................................... PN1483

DESMOND STANLEY CARTER, RECALLED............................................. PN1494

RE-EXAMINATION BY MS STOJANOVA, CONTINUING....................... PN1494

THE WITNESS WITHDREW........................................................................... PN1507

MICHELLE DAWN NEBOZUK, AFFIRMED............................................... PN1515

EXAMINATION-IN-CHIEF BY MS STOJANOVA....................................... PN1515

EXHIBIT #R5 WITNESS STATEMENT OF MICHELLE NEBOZUK DATED 27/05/2022............................................................................................................................... PN1526

CROSS-EXAMINATION BY MR WAINWRIGHT....................................... PN1538

THE WITNESS WITHDREW........................................................................... PN1620