PN1

THE COMMISSIONER: Good morning parties, it's Commissioner Cirkovic speaking. I'll just confirm the appearances this morning, please.

PN2

MR MOHSENI: May it please the Commission, it's Mohseni, initial P for the applicant and my instructor is Mr Evans, he's an official of the union and with me is a member of the union on his behalf who brought the application, Mr Xuereb who's also a witness in the proceeding.

PN3

THE COMMISSIONER: Thank you, Mr Mohseni.

PN4

MR POLLOCK: Yes, if the Commission pleases, Pollock, initial A of counsel instructed by Kingston Reid for the respondent. Commissioner, I'm not certain whether permission has already been granted, as I understand the position the question of permission is not opposed but my learned friend may have a different view now.

PN5

THE COMMISSIONER: Mr Mohseni, was - it was my recollection that permission had granted, am I mistaken there on that?

PN6

MR MOHSENI: I can't remember if it's been granted but it's not opposed.

PN7

THE COMMISSIONER: If you could just speak up a little too, gentlemen, it's (indistinct).

PN8

MR MOHSENI: Sorry, Commissioner. I can't remember if it's been granted either but it's not opposed.

PN9

THE COMMISSIONER: Thank you. Mr Pollock, perhaps for the sake of the matter proceeding in the proper manner, if you could address me on the issue of permission.

PN10

MR POLLOCK: Yes.

PN11

THE COMMISSIONER: I know the (indistinct).

PN12

MR POLLOCK: Thank you, Commissioner. Well, perhaps I can advance it on two bases. Firstly under section 596A and under C, that is that the matter would have been more efficiently dealt with taking into account its complexity and from a comparative fairness standpoint noting of course my learned friend's indication that he doesn't oppose permission being granted.

PN13

As the first, Commissioner, you will have had the opportunity to review the materials. There is a degree of complexity in the constructional questions that are raised. Factually the matter is not terribly complex, I think we can all accept that but there are several constructional questions that, Commissioner, you would be assisted in submissions from legal representatives particularly in circumstances of where those representatives have been involved in the preparation of those materials and can speak to the submissions that they drafted.

PN14

As to the comparative fairness question, again, my learned friend doesn't oppose it. My learned friend is, as I understand it, is a legal officer of the union, the union's a sophisticated industrial organisation and in those circumstances fairness would indicate that advocates be opposed to advocates. I think you're on mute now, Commissioner.

PN15

THE COMMISSIONER: Yes, I am, Mr Pollock. Thank you very much. I was on mute. Thank you. Permission is granted (indistinct) the matter.

PN16

MR POLLOCK: Thank you.

PN17

THE COMMISSIONER: Before we start I'd just like to address the issue of (indistinct) my end so if you'd just bear with me parties, I won't be adjourning the matter but if you could just bear with me for a moment and, Mr Associate, if we could go off the record for one moment while the (indistinct) issue.

PN18

THE ASSOCIATE: Yes, Commissioner. Recording's been ceased.

PN19

THE COMMISSIONER: Thank you.

OFF THE RECORD [10.03 AM]

ON THE RECORD [10.03 AM]

PN20

THE ASSOCIATE: Commissioner, recording has recommenced.

PN21

THE COMMISSIONER: Thank you very much.

PN22

Parties, I understand my chambers sent through in the last few days a court book prepared by chambers to assist the matter proceeding as efficiently as possible. Is that something that you've both received, first of all, and are you content to use the court book?

PN23

MR POLLOCK: Yes, Commissioner, we've received it and certainly grateful for the assistance that the Commission's provided. For my part, I'm content to proceed on that basis.

PN24

THE COMMISSIONER: And Mr Mohseni?

PN25

MR MOHSENI: Yes, and as for us, Commissioner. Thank you.

PN26

THE COMMISSIONER: Yes. I note though, that it was prepared before the amended statement of facts were received so that all - has that been actually included, just one moment it was (indistinct) around the time that - the statement of agreed facts has been included.

PN27

MR POLLOCK: It's in there.

PN28

THE COMMISSIONER: No, that's fine, so that's a document that we can use moving forward. Are there any other sort of matters that need to be dealt with, housekeeping matters before we commence?

PN29

MR POLLOCK: Just one matter, Commissioner. I can indicate to my learned friend that I won't require either of Mr Evans or Mr Xuereb for cross‑examination but there may be one or two very minor points that I'll deal with by way of submissions but I don't propose to otherwise cross‑examine them and don't have any objections to materials being admitted.

PN30

To that end, it might be - or subject to your preference, I'd be content for those statements to simply be read into evidence rather than those witnesses be required to be sworn in and swear up till I start and, Commissioner, if - I'm not sure whether you have any particular questions for these witnesses or what your practice would be but I'm in ‑ ‑ ‑

PN31

THE COMMISSIONER: I don't have a particular preference either way, save that I do want an indication though from the parties that if that's the course that's taken, I note that the amended statement of facts is quite brief. One of the things I was going to ask the parties was, you know, the extent to which the matters raised in the respective witness statements are subject to contention and the extent of that contention, whether the parties would be asking me to make any findings of fact to dispose of the question to be arbitrated.

PN32

So you know, around particularly the types of work and the types of employees performing the work and those sorts of matters. So I'm really in your hands there how you both wish to proceed and I haven't heard from Mr Mohseni yet on the issue broadly.

PN33

MR MOHSENI: Well, Commissioner, I don't think anything - that the substance of any of the facts in the witness statements are contentious but there are, I guess, a couple of questions of more characterisation of those facts and to the extent permissible, that's what my brief cross‑examination of Mr Jefferies is going to go to so I don't think you'd need to make any particular findings.

PN34

There's one other matter, looking at Mr Jefferies' statement at paragraphs 19 and also I think, 27. There was no provision in the directions for it to apply and there's just a few comments Mr Xuereb wants to make in response to them, additional facts. Again, I don't think they're too controversial but on the off chance that my friend might want to cross‑examine Mr Xuereb on them would you rather I drew those out by examination‑in‑chief or is it fine for me to just put them to Mr Jefferies as I've been instructed, through cross?

PN35

THE COMMISSIONER: Well, I don't know what (indistinct) to. I think the - look, I think given the way this is progressing, what I'd like to do is I'll admit the statements in the normal course, the statements in the normal course. I'll give both parties an opportunity to cross‑examine each other and leave it to you for the transcript to record whatever it is that you wish it to record and then I will be, at the conclusion of the matter, asking you certainly to draw my attention to those matters that are the subject of any factual findings that you wish me to make.

PN36

Of course putting aside the issue of the characterisation of the facts (indistinct) put that but if there are any specific findings you wish me to make, I will be asking both parties to draw my attention to those but let's just proceed in the normal course and see where that takes us. Is that convenient, Mr Mohseni, to you?

PN37

MR MOHSENI: Yes, it is.

PN38

THE COMMISSIONER: So Mr Xuereb - is it Xuereb, sir, I apologise if I haven't pronounced that correctly.

PN39

MR XUEREB: No, that's fine. It's Xuereb.

PN40

THE COMMISSIONER: Xuereb, Xuereb.

PN41

MR XUEREB: Yes.

PN42

THE COMMISSIONER: Thank you.

PN43

If Mr Xuereb wishes to give any additional evidence then subject to what Mr Pollock has to say, it would be my intention, Mr Pollock, to allow that to happen by way of evidence‑in‑chief, give you an opportunity to cross‑examine on that evidence, is that ‑ ‑ ‑

PN44

MR POLLOCK: Yes. I would - that's what I assumed the ordinary course would be provided of course it's contained and properly replied and - I have no issue with that.

PN45

THE COMMISSIONER: Yes. Of course.

PN46

Is that all right? Does that suit your preference, Mr Mohseni?

PN47

MR MOHSENI: That's fine. Thank you, Commissioner.

PN48

THE COMMISSIONER: All right. Thank you. If there's nothing else then, over to you, Mr Mohseni.

PN49

MR MOHSENI: Sorry, just for clarity, do I need to read Mr Xuereb's statement into evidence or is that already (indistinct).

PN50

THE COMMISSIONER: No, what I'd like you to do is Mr Xuereb will be giving evidence.

PN51

MR MOHSENI: Yes.

PN52

THE COMMISSIONER: I'll have my associate administer the oath and then I'll ask Mr Xuereb whether or not he wishes to rely on the witness statement that's been filed. I'll then turn to Mr Pollock and ask if he's got any objections to that statement and depending on what happens I'll admit that statement into evidence.

PN53

You will then have an opportunity to ask Mr Xuereb any further questions that you say have arisen by virtue of the respondent's response to which you've not had - and you quite rightly point out the directions did not provide for reply, you'll have an opportunity to do that and Mr Pollock will have an opportunity to cross‑examine if he so wishes.

PN54

MR MOHSENI: Thank you, Commissioner.

PN55

THE COMMISSIONER: Thank you. So my associate now will administer the oath if that's convenient.

PN56

THE ASSOCIATE: Thank you, Mr Xuereb. Could you please state your full name and address for the record?

PN57

MR XUEREB: Yes, it's Dean Xuereb at (address supplied).

PN58

THE ASSOCIATE: Thank you. Please repeat after me.

<DEAN XUEREB, AFFIRMED [10.11 AM]

EXAMINATION-IN-CHIEF BY MR MOHSENI [10.11 AM]

PN59

THE COMMISSIONER: Thank you. Just state your full name and address for the record, Mr Xuereb?‑‑‑It's Dean Xuereb and the address is (address supplied).

PN60

Thank you very much.

PN61

Mr Mohseni, would you like to admit the statement or ‑ ‑ ‑

PN62

MR MOHSENI: Yes, please, Commissioner.

PN63

THE COMMISSIONER: (Indistinct). Thank you. It could - if you prefer I could just ask ‑ ‑ ‑

PN64

MR MOHSENI: No.

PN65

THE COMMISSIONER: All right. You ‑ ‑ ‑

PN66

MR MOHSENI: So, Mr Xuereb, you've prepared a statement for these proceedings?‑‑‑Yes, I have.

PN67

You've got a copy with you?‑‑‑Yes, I do.

*** DEAN XUEREB XN MR MOHSENI

PN68

That statement has 11 paragraphs and one annexure, it's a serious of photographs?‑‑‑Yes, that's correct.

PN69

Have you read the statement recently?‑‑‑Yes, I have.

PN70

Would you like to make any changes to it?‑‑‑No.

PN71

And is it true and accurate to the best of your knowledge and belief?‑‑‑Yes, it is.

PN72

All right. I tender that statement, Commissioner.

PN73

THE COMMISSIONER: Thank you very much.

PN74

And Mr Pollock, any objections to that statement?

PN75

MR POLLOCK: Well, Commissioner, I think as I'd indicated there are a couple of paragraphs that are - to which I object, whether you deal with them as matters of weight or as admissibility is going to be really a question for you, Commissioner.

PN76

Those paragraphs are paragraphs 7 and 8. Obviously paragraph 7 there Mr Xuereb describes the respondent often engaging in external contracts to perform repairs on light towers and reefer outlets and then talks about a schedule of some of the dates on which he's observed contractors performing work.

PN77

Now, Commissioner, the objection here really is one of relevance in circumstances where no attempt is made to identify who these external contractors are, the nature of these - well, it was a sort of general description of the nature of the repairs but it's certainly not clear how one could ascertain from that evidence who these contractors are and more importantly, how that's said to be relevant to the material facts in issue.

PN78

THE COMMISSIONER: Thank you.

*** DEAN XUEREB XN MR MOHSENI

PN79

MR POLLOCK: A similar (indistinct) of objections arises with respect to paragraph 8. There are several annexed photographs of tags attached to equipment that's broken down but when you examine the photographs, Commissioner, they provide no context. They don't tell you very much really at all. Now, again, if you're inclined to admit those matters, Commissioner, I'd certainly be making submissions that you would place limited weight on them.

PN80

THE COMMISSIONER: Thank you very much, Mr Pollock. I intend to admit the statement in its entirety and we'll deal with the paragraphs that you've outlined and of course you can make further submissions, Mr Pollock, as to the weight down the track in the hearing.

PN81

So I'll admit the statement of Mr Xuereb dated 7 December '21 of 11 paragraphs and one annexure exhibit A1 subject to the (indistinct) I've made in relation to paragraph 7 and 8 and the objection taken to those.

EXHIBIT #A1 STATEMENT OF MR XUEREB OF 11 PARAGRAPHS AND ONE ANNEXURE DATED 07/12/2021

PN82

So, Mr Mohseni, if there are any questions you have - further questions you have for Mr Xuereb.

PN83

MR MOHSENI: Thank you, Commissioner.

PN84

THE COMMISSIONER: Thank you.

PN85

MR MOHSENI: Mr Xuereb, you've read the statement of Mr Jefferies, correct?‑‑‑Yes, correct.

PN86

And at paragraph 19 of that statement Mr Jefferies says:

PN87

Although the work that the employees perform is different, they're all treated by DP World Melbourne Limited as one group of employees -

PN88

- and then gives a list of examples. The first example is that they all report through to the operations manager and ultimately to him. Who do you report to? Is it the operations manager?‑‑‑No, so we have a maintenance manager. I thought he might be here but I believe he was in the last call, Ryan McMurray. He's who I directly report to.

PN89

And does he in turn report to the operations manager?‑‑‑I don't believe he reports to the operations manager. I think he reports straight to Sean Jefferies himself.

*** DEAN XUEREB XN MR MOHSENI

PN90

All right. And so if you had an issue with, for example, your roster, who would you go to?‑‑‑I would be going to Ryan or someone who reports directly to him. I wouldn't be going to Sean, for example.

PN91

Thank you.

PN92

THE COMMISSIONER: And, Mr Xuereb, Ryan McMurray did you say or - I ‑ ‑ ‑?‑‑‑Yes, Commissioner.

PN93

Thank you.

PN94

MR MOHSENI: Next he says they're all covered by the same Enterprise Agreement, are there any other electricians like yourself who aren't covered by the DP World Melbourne Agreement 2020?‑‑‑Yes, there is, Commissioner. There is a handful of other electricians that are covered under the ETU Agreement. I believe it was dated 2016. I'm not 100 per cent on the date but there are other people running under a different EA.

PN95

And he then says you're in the same work groups for the purposes of health and safety. Are you in the same work group as any operational employees for the purpose of health and safety?‑‑‑I don't believe so, no. We have our own employee representative on the safety committee who's a maintenance member. He's currently doing the job on his own but he is a separate entity compared to the operational side of things.

PN96

Thank you, Mr Xuereb. Mr Jefferies then says that all employees attend the same toolbox meetings each shift, do you attend the same toolbox meetings as operational employees?‑‑‑No, I don't. The operational employees have their toolbox meetings in their amenities area. We have ours in the maintenance compound, it's for maintenance staff only. We address different things. They happen at different times, they're completely separate toolboxes.

PN97

Then we'll skip (e). At (f) he says you all use the same amenities, I mean, where - do you enter and exit the site through the same gate as the operational employees?‑‑‑No. We have our own gate that leads directly to the maintenance compound which I believe operational staff cannot use, they don't have access to it. We have our own amenities, we have our own lunch rooms. We have a separate toilet block. We have - it's a separate area.

*** DEAN XUEREB XN MR MOHSENI

PN98

Do you wear the same uniform as operational employees?‑‑‑No, not particularly. We have to order our uniform from a separate area that the operational employees order from. We wear different colours, we have different uniforms.

PN99

What colour do the maintenance employees wear?‑‑‑Currently maintenance employees are wearing orange. I believe operational employees wear yellow. We have different sets of overalls because the work's different. We just have - yeah, we have differences.

PN100

Thank you, Mr Xuereb. The last thing I'll ask you about is paragraph 27 of Mr Jefferies statement where he says:

PN101

Sometimes DP World Melbourne Limited can upgrade or downgrade one or more employees to avoid skill shortages, for example, an employee whose primary skill is operating machinery, might be required to act in the maintenance store person role.

PN102

To act in a maintenance store person role, do you need a trade certificate of any special qualifications?‑‑‑No, none at all. It's more a logistical store role as opposed to a trade role. There is no trade background required to do it and the only time that I'm aware of that an operational employee has been posted into the store is usually when they're on a return to work order and they don't have the capacity to do their normal duties so they are put to work in the store helping to do with paperwork or sorting stuff. Low physical activity things they can do while they're on a return to work order.

PN103

And at any given time what's the most number of people who will be working in the maintenance store?‑‑‑The store currently has three employees as far as I'm aware. There was a fourth but that's been changed so, yes, I think it's three at the minute. Yes.

PN104

All right. Thank you, Mr Xuereb.

PN105

Commissioner, that's my examination‑in‑chief of Mr Xuereb.

PN106

THE COMMISSIONER: Thank you very much, Mr Xuereb.

PN107

Mr Pollock?

*** DEAN XUEREB XN MR MOHSENI

PN108

MR POLLOCK: Well, Commissioner, there's a substantial amount of material in that, that I'd appreciate of course you have made directions to reply materials but given the nature of some of that then one might have expected the matter to be called on for those directions or a reply statement to be filed. As it stands, I'm going to need to have the matter adjourned for a short period so I can take some instructions.

PN109

THE COMMISSIONER: Certainly.

PN110

MR POLLOCK: (Indistinct) on that.

PN111

THE COMMISSIONER: Certainly. How long do you need, Mr Pollock?

PN112

MR POLLOCK: 10 minutes I think would be sufficient.

PN113

THE COMMISSIONER: Thank you.

PN114

MR POLLOCK: Thank you.

PN115

THE COMMISSIONER: I'll adjourn now until 10.45 and Mr Pollock, if you do need more time, please feel free to contact my associate and that will be allowed.

PN116

MR POLLOCK: Thank you, Commissioner. Thank you.

PN117

THE COMMISSIONER: Thank you. We'll adjourn now until 10.45. Thank you.

<THE WITNESS WITHDREW [10.22 AM]

SHORT ADJOURNMENT [10.22 AM]

RESUMED [10.45 AM]

PN118

THE COMMISSIONER: Thank you, Mr Pollock.

PN119

MR POLLOCK: Thank you, Commissioner.

PN120

THE COMMISSIONER: Was that sufficient time?

PN121

MR POLLOCK: Yes, I can make do with that, Commissioner. No terrible difficulty with that. Are you content for me to proceed?

*** DEAN XUEREB XN MR MOHSENI

PN122

THE COMMISSIONER: Yes, please.

<DEAN XUEREB, RECALLED [10.45 AM]

CROSS-EXAMINATION BY MR POLLOCK [10.45 AM]

PN123

MR POLLOCK: Thank you.

PN124

Mr Xuereb, you can see and hear me well enough?‑‑‑Yes.

PN125

Thank you. Mr Xuereb, you gave some evidence in response to some questions from my friend before the break about paragraph 19 of Mr Jefferies' statement and you were taken through various parts of that paragraph, the first was subparagraph (a) where Mr Jefferies says that:

PN126

All of those employees report through to the operations manager and ultimately to me

PN127

And you said, 'No, you report to the engineering manager.' You don't suggest that the engineering or maintenance area is a completely separate part of the business, do you?‑‑‑No, it's on the same terminal.

PN128

Yes, but beyond that, you'd agree, wouldn't you, that it's the operations manager who determines the vessel schedule?‑‑‑Yes.

PN129

And it follows from that determination of the vessel schedule what there is in terms of the availability of operational equipment?‑‑‑To a point, yes.

PN130

And what might be available from a maintenance and servicing standpoint?‑‑‑Yes.

PN131

And it's once the operations manager determines all of those things, then the engineering manager can go about rostering people to ensure that appropriate maintenance staff are informed?‑‑‑Yes, based on availability of the equipment, yes.

PN132

Yes. So you'd agree that the work performed by each of those two teams is interdependent, we'd say?‑‑‑Yes.

*** DEAN XUEREB XXN MR POLLOCK

PN133

Now, you gave some evidence about subparagraph 19)(c) where Mr Jefferies says:

PN134

They are all in the same work groups for the purposes of health and safety.

PN135

And as I understood your answer, you said, 'No, because maintenance has a representative on the site safety committee.' That was the effect of your evidence, wasn't it?‑‑‑More or less but they're two different scopes of work, you know what I mean. They don't have the same hazards that we do.

PN136

Well, you would agree, wouldn't you, that under the Enterprise Agreement, that is the 2020 Enterprise Agreement that we're dealing with here, that Enterprise Agreement treats operations and maintenance as a single work group for the purposes of health and safety representation. You'd agree with that, wouldn't you?

PN137

MR MOHSENI: Commissioner, can I object there? Sorry, and can the relevant clause of the agreement be put to Mr Xuereb before he answers that because he might not have read that part of the agreement.

PN138

MR POLLOCK: Certainly can. If - I'm not sure whether Mr Xuereb has the Enterprise Agreement.

PN139

THE COMMISSIONER: Do you have a copy of the court book, Mr Xuereb, there?‑‑‑No, I might have one. Yes, one second.

PN140

MR MOHSENI: No, I can just put a copy of the agreement in front of him. I can take him to the clause.

PN141

THE COMMISSIONER: If you can do that, please, Mr Mohseni. So if Mr Xuereb can be given a copy of either the court book or the agreement, please.

PN142

Just a minute, Mr Pollock.

PN143

Mr Mohseni, has that been done?

PN144

MR MOHSENI: Sorry, Commissioner, I was waiting for Mr Pollock to ‑ ‑ ‑

*** DEAN XUEREB XXN MR POLLOCK

PN145

THE COMMISSIONER: I'd like Mr Xuereb to be given a copy of either the court book or access to the court book or the agreement. Thank you. And when you're ready just let us know.

PN146

Mr Pollock, was that clause 19(b) or (c) that you were just addressing?

PN147

MR POLLOCK: It's paragraph 19(c) of Mr Jefferies statement.

PN148

THE COMMISSIONER: Thank you.

PN149

MR POLLOCK: And I can indicate the relevant provision in the Enterprise Agreement is clause 21.10.1 which can be found on court book page 150.

PN150

THE WITNESS: I've got a copy of 20.10.1 here:

PN151

A nominal ratio of one HSR to 20 employees agreed between the parties as sufficient to appropriately cover the work group. The work group includes both maintenance and operational employees.

PN152

MR POLLOCK: Yes.

PN153

THE COMMISSIONER: Mr Pollock, what page was that of the court book?

PN154

MR POLLOCK: 150.

PN155

THE COMMISSIONER: Thank you.

PN156

MR POLLOCK: So you'd agree with me that the Enterprise Agreement treats the relevant work group for the purposes of determining the number of health and safety representatives as including both maintenance and operational employees, wouldn't you?‑‑‑That's how it reads here, yes.

*** DEAN XUEREB XXN MR POLLOCK

PN157

Yes. And you also suggested that maintenance has its own representative on the health and safety committee but you'd agree, wouldn't you, that it's not the case that maintenance has one representative and operations have one representative, is it? It's - rather it's the maintenance may have a representative but there are a range of different representatives across operations dealing with different categories of employment and different types of skills. That is, there might be crane drivers, there might be other skillsets within operations that are represented in that committee, might there?‑‑‑Yes.

PN158

Yes. Thank you. Now, you also gave some evidence about toolbox meetings and you suggested that maintenance employees attended different toolbox meetings to operational employees. As to the substance of those meetings, you don't suggest, though, do you, that the toolbox meetings that apply to the maintenance employees is wholly different to that which might be delivered to operation employees? That is, there may well be many common matters that are addressed across the toolbox meetings that are required at site, mightn't there?‑‑‑There may be some crossover, but our toolbox talks are very maintenance focused.

PN159

You also gave some evidence about the use of amenities, and you said, 'Well, we have our own - maintenance has its own amenities and operations have their own amenities.' You don't, of course, suggest that the maintenance amenities are - or that you're limited to using the maintenance amenities or vice versa? That is, you could use the operational amenities if that was convenient, couldn't you?‑‑‑Yes. We have access to them, yes.

PN160

Yes, and operational employees would have access to the maintenance amenities, wouldn't they?‑‑‑They do have access to them, yes.

PN161

So it's simply just a function of where you're located at the site at any given time, isn't it, in terms of which one you ‑ ‑ ‑?‑‑‑That's correct, however the maintenance compound is accessed by qualified, authorised people only, so there'd be no reason for an operational employee to just be wandering around the maintenance compound without a reason.

PN162

You gave some evidence about the uniforms that are worn. You'd agree, wouldn't you, that two of the uniforms that are worn at the site have the same DP World branding on them, don't they?‑‑‑Yes, that's correct. Yes.

PN163

And they are obtained from the same (indistinct) suppliers, aren't they?‑‑‑Yes, that's correct.

PN164

Insofar as they vary between different parts of the site, that's just a function of the particular tasks that they perform, isn't it? For example, electricians might wear particular types of safety boots with particular steel caps, mightn't they?‑‑‑Yes.

*** DEAN XUEREB XXN MR POLLOCK

PN165

So it's not a situation, is it, that maintenance staff have a separately issued type of uniform to every other part of the site?‑‑‑It's separately issued in the sense that it's ordered from a separate section on the website. We aren't able to order from the operational side of things and they are not able to order from the engineering side of things.

PN166

Lastly, you gave some evidence in relation to paragraph 27 of Mr Jefferies' statement, and you suggested that the only scenario on which someone might act in the maintenance storeperson role was if they were, as I understood your evidence, returning to work, for example, from an injury or similar. That was the effect of your evidence, wasn't it?‑‑‑That was one of my examples, yes.

PN167

Well, you went further than that, didn't you? As I understood your evidence, you said that that was the only circumstance that someone might act in that role?‑‑‑That's the only time I've seen it happen, yes.

PN168

So you wouldn't be in a position, as might Mr Jefferies, to give evidence more broadly about the types of people who have performed that role. You're limited to your direct observations, aren't you?‑‑‑Yes, I'm limited to my observations, but I work directly with the store people, so my observations are - is all I can provide, yes. I don't have any other information.

PN169

So you'd agree with me that in his role, Mr Jefferies would be better placed to know the types of people and types of roles, or previous roles, that the people who have performed the maintenance storeperson role have performed?‑‑‑I suppose. I'm not sure what he is privy to or, you know, what he takes note of. It's probably a little bit below his pay scale, but, you know.

PN170

Nothing further, Commissioner.

PN171

THE COMMISSIONER: Thank you very much. Anything further, Mr Mohseni?

PN172

MR MOHSENI: No, thank you, Commissioner.

PN173

THE COMMISSIONER: Thank you. Thank you for your evidence, Mr Xuereb.

<THE WITNESS WITHDREW [10.57 AM]

PN174

THE COMMISSIONER: Mr Mohseni, I take it there are no other witnesses for the ‑ ‑ ‑

PN175

MR MOHSENI: There's the statement of Mr Evans, but I don't think that needs to be read into evidence. I don't have any further questions for him.

*** DEAN XUEREB XXN MR POLLOCK

PN176

THE COMMISSIONER: Is Mr Evans available today?

PN177

MR MOHSENI: Yes, he is.

PN178

THE COMMISSIONER: What we'll do is I'll have my associate call in. I'll have him administer the oath, admit the evidence and see if Mr Pollock wants to cross-examine.

PN179

MR EVANS: Commissioner, I'm on the line now.

PN180

THE COMMISSIONER: Good morning. How are you, Mr Evans?

PN181

MR EVANS: I'm good, thank you.

PN182

THE COMMISSIONER: I'll have my associate administer the oath now, Mr Evans.

PN183

THE ASSOCIATE: Mr Evans, please state your full name and address for the record.

PN184

MR EVANS: Adrian Evans, 2-4 Kwong Alley, North Fremantle.

<ADRIAN EVANS, AFFIRMED [10.58 AM]

EXAMINATION-IN-CHIEF BY MR MOHSENI [10.58 AM]

PN185

THE COMMISSIONER: Thank you, Mr Evans. Just state your name and address for the record, please?‑‑‑Yes. Adrian Evans. I gave the Fremantle address, actually, 2-4 Kwong Alley, North Fremantle. Also in our national office in Sydney.

PN186

Thank you, Mr Evans. Mr Mohseni?

PN187

MR MOHSENI: Thank you. Mr Evans, you've prepared a statement for these proceedings?‑‑‑Yes, I have.

PN188

Have you got a copy with you?‑‑‑Yes, I do.

*** ADRIAN EVANS XN MR MOHSENI

PN189

That statement has 34 paragraphs and one annexures?‑‑‑Yes.

PN190

Have you read the statement recently?‑‑‑Yes, I have.

PN191

Any changes you'd like to make?‑‑‑No.

PN192

And it's true and accurate to the best of your knowledge and belief?‑‑‑Yes, it is.

PN193

I tender that statement, Commissioner.

PN194

THE COMMISSIONER: Thank you very much, Mr Mohseni. Mr Pollock, do you have any objection?

PN195

MR POLLOCK: No objections.

PN196

THE COMMISSIONER: Thank you. I'll mark the statement of Mr Evans of 34 paragraphs and one annexure - undated. Is that correct, Mr Mohseni?

PN197

MR MOHSENI: Correct, Commissioner. Sorry.

PN198

THE COMMISSIONER: Thank you. I'll mark that exhibit A2.

EXHIBIT #A2 WITNESS STATEMENT OF ADRIAN EVANS CONTAINING 34 PARAGRAPHS AND ONE ANNEXURE

PN199

Thank you. Mr Pollock, do you have any cross‑examination?

PN200

MR POLLOCK: No cross‑examination, Commissioner.

PN201

THE COMMISSIONER: Thank you very much. Thank you for attending today, Mr Evans?‑‑‑Thanks, Commissioner.

<THE WITNESS WITHDREW [11.00 AM]

PN202

THE COMMISSIONER: Thank you. Mr Mohseni, anything further from the applicant?

*** ADRIAN EVANS XN MR MOHSENI

PN203

MR MOHSENI: No further evidence from us, thank you, Commissioner.

PN204

THE COMMISSIONER: Thank you. Mr Pollock?

PN205

MR POLLOCK: Thank you, Commissioner. I hadn't intended to labour you with an opening in circumstances where the written materials have been filed and are fairly comprehensive. I had intended simply to get into the evidence.

PN206

THE COMMISSIONER: I do hope you'll labour me with a final submission, though.

PN207

MR POLLOCK: I certainly will, Commissioner.

PN208

THE COMMISSIONER: Thank you.

PN209

MR POLLOCK: Fear not, I will assist you on that front. Unless there are any other matters, I would simply seek to call Sean Jefferies.

PN210

THE COMMISSIONER: Thank you. Good morning, Mr Jefferies. It's the Commissioner speaking. Can you hear me?

PN211

MR JEFFERIES: I can Commissioner. Good morning.

PN212

THE COMMISSIONER: Can you see the parties?

PN213

MR JEFFERIES: I can see most of the parties.

PN214

THE COMMISSIONER: Thank you. I'll just have my associate administer the oath, Mr Jefferies.

PN215

THE ASSOCIATE: Mr Jefferies, please state your full name and address for the record?‑‑‑Sean Bruce Jefferies. Address care of DP World Fremantle,

<SEAN BRUCE JEFFERIES, AFFIRMED [11.02 AM]

EXAMINATION-IN-CHIEF BY MR POLLOCK [11.02 AM]

*** SEAN BRUCE JEFFERIES XN MR POLLOCK

PN216

THE COMMISSIONER: Thank you, Mr Jefferies. Just state your full name and address for the record?‑‑‑Sean Bruce Jefferies, care of DP World Fremantle, Rudderham Drive, North Fremantle.

PN217

Thank you, Mr Jefferies. Mr Pollock?

PN218

MR POLLOCK: Thank you, Mr Jefferies. Can you just tell the Commissioner the nature of the role that you hold with DP World?‑‑‑Currently the general manager of operations for the DP World in Fremantle terminal.

PN219

Have you previously had any involvement or oversight of the DP World terminal in Melbourne?‑‑‑I have. I spent three years as the general manager of operations for the DP World Melbourne Terminal.

PN220

What did that role involve on a day‑to‑day level?‑‑‑Day‑to‑day level, ultimately responsible for all aspects of terminal operations throughout the terminal, financial operational performance, safety.

PN221

You've made a witness statement in this proceeding, haven't you?‑‑‑I have.

PN222

Do you have a copy of the court book in front of you?‑‑‑I've got a copy. Not right in front of me at the moment, but ‑ ‑ ‑

PN223

I'm going to take you to your witness statement?‑‑‑Yes.

PN224

I can take you to the version that is in the court book?‑‑‑Yes.

PN225

If you have an electronic copy of that handy, if I could take you to page 104 of the court book?‑‑‑Is that of my statement, 104?

PN226

THE COMMISSIONER: It should be, yes.

PN227

MR POLLOCK: If you can take a look at that and just confirm that the document commences at page 104, runs through to page 112, runs to 38 paragraphs and then has two annexures labelled SJ1 and SJ2 which then follow it. That is the witness statement that you prepared in this proceeding?‑‑‑It is.

*** SEAN BRUCE JEFFERIES XN MR POLLOCK

PN228

You've had an opportunity to review that statement recently?‑‑‑Yes, I have.

PN229

Is that statement true and correct?‑‑‑Yes. There are some adjustments in relation to clause 19.

PN230

Paragraph 19?‑‑‑For some clarity.

PN231

Perhaps I can take you to those?‑‑‑Or paragraph 19, I should say.

PN232

Yes. If I can take you to paragraph 19. If I could perhaps take you first to subparagraph 19(a), 'They all report through to the operations manager and ultimately to me.' Can you just explain to the Commissioner what you mean by that?‑‑‑The operations manager's is the 2IC in the business, so whilst there's - and I didn't make this clear. There's separating reporting lines. Maintenance operations report through to the engineering manager and both the operations manager and the engineering manager do directly report to me, but as the 2IC in the business, the operations manager is - or he determines the vessel schedules and ultimately the availability of operational equipment to allow the maintenance department to service and maintain as required. Based on the equipment availability that's given to the engineering manager from the operations team the roster and, you know, people and skills are allocated to perform that task - or those tasks.

PN233

THE COMMISSIONER: Just so I'm clear - I'm a little confused now, Mr Jefferies?‑‑‑Yes ‑ ‑ ‑

PN234

Is the operations manager reporting to you?‑‑‑Yes.

PN235

So the maintenance and engineering, I think you said ‑ ‑ ‑Engineering manager also reports directly to me, but functionally the operations manager, you know, effectively gives the engineering manager the - you know, makes sure that the equipment is available for them to be able to work on when we need to work on it.

PN236

MR POLLOCK: Sorry, just so I understand that evidence, is it that the reporting line is separate but functionally the engineering manager works underneath the operations manager. Is that the substance of it?‑‑‑For the purposes of making equipment available, yes.

*** SEAN BRUCE JEFFERIES XN MR POLLOCK

PN237

I see?‑‑‑You know, they work side by side, but the maintenance manager can't get access to the equipment if the engineering manager is not making it - sorry, the operations manager isn't making it available.

PN238

Thank you. Are there any other clarifications you wish to make to paragraph 19?‑‑‑Yes. On the toolbox talks, talking about they attend the same toolbox talk on each shift, maintenance toolbox talks are conducted in the workshop to address, you know, their issues directly. Whilst there are similarities between the toolbox talks where they - you know, where we need to transfer messages across the two, but traditionally the maintenance staff do their toolbox talk in the workshop.

PN239

So do I understand that evidence that where there are common issues to be addressed, that those issues will be addressed commonly across ‑ ‑ ‑?‑‑‑Correct.

PN240

‑ ‑ ‑ maintenance toolbox talks, but there will be certain content that ‑ ‑ ‑?‑‑‑Correct.

PN241

(indistinct) to each. Are there any further matters in paragraph 19 that you would like to clarify?‑‑‑19(f), in relation to the amenities. You know, maintenance operation staff, there's multiple amenities around the terminal and the maintenance operations staff have amenities areas in both of their areas, close to their locker rooms. They're not segregated, and as such, maintenance staff can and sometimes do attend operations amenities, and to a lesser degree vice versa. There's not too often operations would go to maintenance for facilities, but similarly there amenities in the, you know, management admin area where - you know, stevedoring staff use that as well. So there's multiple amenities around the facility.

PN242

Any further clarifications?‑‑‑Uniforms, it talks about the same uniform. That was more just for clarity. All staff are provided with the same uniform from a branding quality perspective, and supplies, for that matter, but individual items vary subject to the task performed. Electricians, as an example, you know, would wear - you know, don't wear steel‑capped boots, would wear composite‑toe safety boots, as do cargo care employees. Maintenance staff traditionally wear orange overalls, but it's the same uniform package, you know, although the uniforms are appropriate for the task they do.

PN243

Is that the extent of the clarifications you wanted to make to paragraph 19?‑‑‑It is, Andrew.

PN244

Commissioner, subject to those clarifications, I'd seek to tender the statement and the annexures.

PN245

THE COMMISSIONER: Thank you. Mr Mohseni, are there any objections?

*** SEAN BRUCE JEFFERIES XN MR POLLOCK

PN246

MR MOHSENI: No objections.

PN247

THE COMMISSIONER: Thank you. I'll mark the statement of Mr Jefferies of 38 paragraphs and two annexures, SJ1 and SJ2, subject with the noting on transcript the further comments made to clarify paragraph 19 of that statement. I'll mark that exhibit R2 - or R1, actually. It's R1.

PN248

MR POLLOCK: R1, I think it is, Commissioner.

PN249

THE COMMISSIONER: R1, yes. Thank you. R1.

EXHIBIT #R1 WITNESS STATEMENT OF SEAN JEFFERIES COMPRISING 38 PARAGRAPHS AND ANNEXURES SJ1 AND SJ1, NOTING CLARIFICATIONS TO PARAGRAPH 19 OF STATEMENT

PN250

Thank you.

PN251

MR POLLOCK: And with leave, just one or two further questions that arise out of cross‑examination.

PN252

THE COMMISSIONER: Thank you.

PN253

MR POLLOCK: Mr Jefferies, you give some evidence at paragraph 27 of your statement ‑ ‑ ‑

PN254

THE COMMISSIONER: Just a minute, Mr Pollock. Apologies. You said 'arise out of cross‑examination'. There has not been any cross‑examination.

PN255

MR POLLOCK: I'm sorry, that arose ‑ ‑ ‑

PN256

THE COMMISSIONER: Otherwise I've missed something very important.

PN257

MR POLLOCK: No, I'm sorry, Commissioner, that arose out of the further reply evidence that Mr Xuereb gave.

PN258

THE COMMISSIONER: Mr Mohseni, is there any objection to that further ‑ ‑ ‑

*** SEAN BRUCE JEFFERIES XN MR POLLOCK

PN259

MR MOHSENI: No, Commissioner.

PN260

THE COMMISSIONER: Thank you. Go on, Mr Pollock.

PN261

MR POLLOCK: Mr Jefferies, at paragraph 27 of your statement you say this:

PN262

Sometimes DP World can upgrade or downgrade one or more employees to avoid skill shortages. For example, an employee whose primary skill is operating machinery might be required to act in a maintenance storeperson role. I don't recall specific dates, but I'm aware that this happens from time to time.

PN263

Mr Xuereb gave some evidence earlier this morning that to his knowledge the only people that have performed that maintenance storeperson role in those circumstances have been on a return to work arrangement following an injury, for example. What, if anything, can you say in response to that? What can you say about the circumstances in which someone might perform that maintenance storeperson role?‑‑‑No, well, I mean, the latest person to have been appointed into a permanent role in that function came from the operational roster, a gentleman by the name of Tim Gaynor. I can't off the top of my head tell you the date that he came into that role, but he was appointed to that role in the last, you know, probably 18 months, and he came from an operational roster. And prior to him being there a lady by the name of Joanne Veltman, I think her name was, was also a casual stevedore who filled in that role on a casual basis.

PN264

Thank you. Nothing further in chief, Commissioner.

PN265

THE COMMISSIONER: Thank you. Mr Mohseni?

CROSS-EXAMINATION BY MR MOHSENI [11.13 AM]

PN266

MR MOHSENI: Thanks, Commissioner. Mr Jefferies, I've just got a few questions for you about your statement. Can you please look at paragraph 11 of your statement?‑‑‑Yes.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN267

Where you say, 'Generally speaking, the types of work performed by operations employees are divided into five categories - general duties, operation of machinery and yard equipment, clerical work, crane driving and maintenance', and then in the following paragraphs you've gone through and described what each of those roles is, but properly described, operations employees don't perform any maintenance work whatsoever, do they?‑‑‑I'm referring to them as operational employees of the business rather than individual tasks.

PN268

Okay. Well, people who do the first four roles you've mentioned would never do any maintenance work, would they? They don't have trade certificates?‑‑‑Not trade roles. Tim Gaynor and Joanne Veltman, who perform those roles, have performed maintenance functions.

PN269

They're in the maintenance storeroom and ‑ ‑ ‑?‑‑‑Well, it's a maintenance function.

PN270

But we've heard evidence that there's at most maybe three employees there at any one time, so ‑ ‑ ‑

PN271

MR POLLOCK: I'm sorry, Commissioner ‑ ‑ ‑?‑‑‑But they don't - but I ‑ ‑ ‑

PN272

Before ‑ ‑ ‑

PN273

THE COMMISSIONER: Just a moment, Mr Jefferies. There appears to be an objection from your counsel. Just wait one moment.

PN274

MR POLLOCK: I'm not sure where the evidence that we heard that there was only three people at any one time in ‑ ‑ ‑

PN275

MR MOHSENI: It was Mr Xuereb's evidence.

PN276

MR POLLOCK: Well, perhaps I can be pointed to - I don't recall that evidence being given.

PN277

MR MOHSENI: How about I ask Mr Jefferies. At any given time, how many people are rostered to work in the maintenance storeroom?‑‑‑Three.

PN278

Compared with how many on the maintenance roster - the general maintenance roster?‑‑‑Off the top of my head, maybe 40.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN279

So the maintenance storeroom is almost like an anomaly, isn't it? It's just an appendage to the maintenance operation that only needs a couple of people to staff it. It doesn't need any special trade certificates or qualifications like the rest of maintenance?‑‑‑I'd argue that it needs a range of qualifications, but you don't need a trade qualification to work in there.

PN280

Whereas the defining feature of the general maintenance roster is that everyone needs a trade certificate. It's a specialist skill, either a fitter and turner or an electrician?‑‑‑With those skills, yes.

PN281

Moving on with paragraph 11, maintenance employees don't perform any of the roles you've listed at (a) to (d), do they?‑‑‑(a) to (d)?

PN282

Yes. So general duties, operation of machinery and yard equipment. A fitter and turner would never drive a strap, for example?‑‑‑Other than when he was performing maintenance, but not for operational purposes.

PN283

Thank you. And employees who perform roles (a) through (d) might perform any number of those roles. Is that right? So if someone who drives a straddle might also do some lashing or other general duties, or, you know, someone who's a crane driver might also regularly do some shifts as a clerk?‑‑‑They might.

PN284

And the first four types of work are all directed at moving containers around the terminal, are they not?‑‑‑Yes, they are.

PN285

(indistinct)?‑‑‑Well, they are, but, you know, without the maintenance they don't move containers either.

PN286

Sure, but the maintenance work is directed at maintaining and repairing the equipment and the other types of work are directed at dealing with the containers, taking them off ships, loading them onto trains or trucks or back onto ships or - they're two different types of work, is what I'm putting to you, aren't they?‑‑‑Both, though, you know, facilitate the movement of cargo.

PN287

But one of those roles is significantly more removed from the direct handling of containers, isn't it?‑‑‑Yes.

PN288

So it makes more sense to say that there are two types of work at the terminal, operational and maintenance, isn't it?‑‑‑On the basis that there's a general operations roster and a general maintenance roster, yes.

PN289

Yes, thank you.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN290

THE COMMISSIONER: Mr Mohseni, while you're contemplating your next question, if you don't mind I'll just pick up on something. Mr Jefferies, if you could explain for my benefit, where do the clerical workers in paragraph 11 fit in to what you've just described?‑‑‑They monitor the movement of containers on and off trucks and on and off vessels. They perform a range of functions. There are some clerical functions within the maintenance as well, but that tends to be - you know, it's not direct clerical work, it's supplementary work to other roles in the maintenance area.

PN291

Thank you. Thank you, Mr Mohseni.

PN292

MR MOHSENI: Can I now take you to paragraph 19(h) of your statement?‑‑‑19?

PN293

(h)?‑‑‑(h)

PN294

Under 19?‑‑‑Yes.

PN295

So you said that all of your employees are generally reported on as one group for financial and other purposes?‑‑‑Yes.

PN296

But maintenance employees are separately assessed in some reports, because unlike the other employees, they're considered to be a cost centre for the business. So if maintenance employees are considered to be a cost centre and that the operations people raise revenue - you know, the harder they work, the more revenue there is, whereas the maintenance people are a lot more removed from that. Is that ‑ ‑ ‑?‑‑‑For the purposes of a P and L, Pedram, they are treated differently. They are - you know, every area of our business, be it operations, safety, HR, maintenance, have a separate line in our P and L. So we have one P and L for our business, and there are separate line items throughout that P and L, of which maintenance form part of that.

PN297

But if you describe maintenance as a cost centre, would that mean that there are times when they are more cost‑effective and times when they are less cost‑effective?‑‑‑That's the same with any department. Operationally, operations are more cost‑effective at times when they produce more.

PN298

So what do you mean then when you describe them as a cost centre?‑‑‑It's like every line - operations is a cost centre. Every line in our P and L is a cost centre, because there is cost associated with that.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN299

Unlike other employees. Why then have you said 'Unlike other employees, they are considered to be a cost centre for the business'?‑‑‑Poor wording.

PN300

But you agree with the general proposition, don't you, that it's a business decision by DP World to have in‑house maintenance staff?‑‑‑Sorry, say that again?

PN301

It's a discrete business decision by DP World to have its own in‑house maintenance staff, isn't it?‑‑‑Well, I mean, it's part of our current agreement. It's a decision we've made, you know, in the current running of the business.

PN302

And at times it can be a more cost‑effective decision and at other times it can be a less cost‑effective decision?‑‑‑I'm not sure what your point is.

PN303

It's a simple question. Sometimes it's more cost‑effective and sometimes it's not as cost‑effective?‑‑‑As is any part of operating a business.

PN304

Thank you. Can you go to 26, which I guess to some extent you've already addressed in the discussion you've had around 19(a) also. So you've said – you say at 26 in order to allocate labour on a particular shift, the ops manager looks at the updates on the times (indistinct) priority for the particular vessel and then determined how many employees will be required to service the vessel's likely skill mix needed and there has also been evidence that that goes some way to determining the volume of maintenance work. Is that – is that correct?‑‑‑It is.

PN305

But the operations manager isn't responsible for allocating maintenance labour?‑‑‑No. The maintenance manager is responsible for that, but the operations manager is responsible for making the equipment available for the engineering manager to actually determine what he is going to do.

PN306

So that only - - -?‑‑‑So maintenance functions will be cancelled or delayed or postponed if additional equipment is required on a particular day or a particular shift. Those matters are determined by the operations manager.

PN307

But once it's determined how much maintenance work is required if they're not to the maintenance manager to allocate the labour to do it. Is that correct?‑‑‑That's right.

PN308

Thank you. Can I take it at paragraph 29. There you identified some factors that cause idle time?‑‑‑Mm-hm.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN309

The first three, weather, delayed vessels and machinery breakdowns. So weather would never really have an impact on the productivity of the maintenance division, would it? Because they mostly work in a workshop, don't they?‑‑‑No. They don't. Melbourne – Melbourne has got seven bridge and a gantry cranes - a number of the bridge and gantry cranes, as well straddles, as well as, you know, there's 54 straddles or whatever there is there now. So, you know there's multiple work that is done by maintenance people outside of the maintenance workshop.

PN310

That can't be performed if it's, say, raining?‑‑‑Subject to the weather is not rain. It could be – you know, subject to the weather conditions.

PN311

What about delayed vessels? Delayed vessels would be a blessing for the maintenance division, wouldn't it, because it gives them time to catch up on their backlog?‑‑‑It's subject to how often – how much advance notice we get of the delay of a vessel.

PN312

Machinery breakdowns – I mean, that's the reason you have maintenance people in the first place, right?‑‑‑To rectify that. Yes.

PN313

That's when they are busiest?‑‑‑Yes.

PN314

So by and large on your idle time - at least on the layperson's conception of idle time, the maintenance will be caused by completely different reasons to why it would be caused or what would cause it on the operations side of things. Right?

PN315

MR POLLOCK: I object to that. We are not interested at all in the layperson's definition of idle time. There is an definition of idle time in the enterprise agreement. There's no utility in putting generalised questions to this witness in that circumstance.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN316

MR MOHSENI: Can I take you to – sorry, this might be a bit confusing, but if – 21, so we are looking now at the four metrics that have to be satisfied before additional (indistinct) appointments are made and so the first metric is roster utilisation and at 21 you said roster utilisation or shift ratio is a measure used to assess the value that DP World Melbourne Ltd derives from permanent employees, having regard to the minimum salaries paid to them as set out in clause 3 of part E of the agreement, they shifts they actually work. And then at 22 you sort of explain that a bit and at 23 you identified the utilisation target as 1.55 and further down at 35(a) you say, 'A number of employees did not meet the roster utilisation target', by which I assume you're saying you mean the shift ratio target. Is that correct?‑‑‑34(a) refers to the labour review metrics. The number of shifts worked. The metrics in the EA talks about there being no not required shifts and there were 300 plus (indistinct) 369.

PN317

Sorry, Mr Jefferies. That's not what I'm asking. I'm just saying at 35(a) when you say a number of employees did not meet the roster utilisation target, you are referring to that target of 1.55. You referred to it earlier at 23. Is that correct?‑‑‑No. I'm referring to – the data in the labour review refers to the not required shifts.

PN318

That's idle time, isn't it?‑‑‑Which (b) refers to there (indistinct) an amount of not required shifts, meaning there as idle time.

PN319

Where does the shifts ratio come into it then?‑‑‑It's one of the other metrics that we look at. It's not part of the labour review – directly part of the labour review, but it is absolutely a metric that we look at from a business point of view.

PN320

But can you show me where in the agreement it says that the appointments – additional FSE appointments pursuant to the data from the labour review take into account the shift ratio?‑‑‑No. But I don't think I was referring the shift ratio that was not part of it. I mean, if you go back to the agreement, it talks about the not-required shifts.

PN321

So you would agree then that the shift ratio is irrelevant?‑‑‑No. I wouldn't agree with that. The shift ratio is absolutely relevant to making sure that with people that are on rosters, that we are getting value out of those rosters.

PN322

THE COMMISSIONER: Did you say 'relevant' Mr Jefferies? Just a minute. Did you say 'relevant' or 'irrelevant' then?‑‑‑Relevant.

PN323

So the shift ratios, you're talking about?‑‑‑The shift ratios.

PN324

As well as - - - ?‑‑‑So Commissioner when we – when we look at what we are getting in the value of shift – I mean, there are clauses in there that talk about, you know, where –where we're not getting values out of shift - what clauses are they?. There are clauses in the agreement that we are able to change rosters and upgrades and downgrade people as a result of downgrade in business or downturns in business. So the roster ratio is directly, you know, attributable to that. I mean, it's - if we are not getting value out of rosters we've got wrong rosters or we've got not enough work to fulfil those rosters.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN325

MR MOHSENI: I'm not sure, I follow, Mr Jefferies because, I mean, clause 8.13.8(a) – sorry, clause 8.13.8 says, 'The review will assess the opportunity for (indistinct) and that the VSE to FSE roles where there is business performance evidence by the following; roster utilisation, and availability of skills, no overtime and VSE (indistinct) consistently no average, 15 per cent above the minimum salary in clause 30.3 doesn't mention a shift ratio (indistinct) you seem to be suggesting that it's baked into - - -?‑‑‑No. I said – I said that it is something that is considered where there is downturns in the business. And I may not have said that clear enough, but the labour review to which - what we are talking about, clearly sets out, you know, the four metrics around roster utilisation and the availability of skills, idle time and VSE earnings as you've suggested.

PN326

What I'm asking is, the roster utilisation metric appears as one of those four metrics. The shift ratio has nothing to do with that, does it?‑‑‑To the – directly relatable to this? No. No, it doesn't. But it does come into it where, you know, if we put somebody up because, you know, further down in the clause it talks about, you know, not impacting, you know, the above. If we put somebody up and we're not getting, you know, a sufficient roster ratio that does directly have a – have an impact on roster utilisation. So if I'm not getting – you know, if I've only got work for dayshift for somebody who is on a roster or I should be getting evening and nightshifts out of them, or nightshift in relation to maintenance, I don't get full roster utilisation.

PN327

But you've got the ability to appoint irregular shifts, don't you?‑‑‑We – there is a roster in place at the moment and there's irregular shifts there, yes. So you do get paid a salary based on working a certain number of nightshifts. And if I can't get them to nightshifts, because there's not enough work or I've got too many people working there and I don't need them on those sifts, the roster utilisation doesn't get to the shift ratio that we're – pardon me, that we're looking for.

PN328

Okay. Well, in that case you've said that it is – it is part of what you are, you know, digging into, but directly relating to upgrades and downgrades from a labour review. You know, the simple fact is that we had not required shifts during that period.

PN329

But where you've said, 'A number of employees did not meet the roster utilisation - - -?‑‑‑Well, they didn't. That's a fact.

PN330

If we look at the labour review data then, at least in respect of the shift ratio?‑‑‑Yes.

PN331

What it be easier for me to give you a page number for the data sheet or a page number in the - - -?‑‑‑I don't know what you are telling me yet, so - - -

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN332

Well, you've got the labour review data, don't you?‑‑‑Yes.

PN333

Can you go to page 20. It says, 'Earnings, number of shifts performed in ratio.'

PN334

THE COMMISSIONER: I'm sorry, Mr Mohseni. Which page?

PN335

MR MOHSENI: The court book reference, Commissioner, I will give you in a moment. Sorry, please bear with me.

PN336

MR POLLOCK: Page 214 of the court book, Commissioner.

PN337

MR MOHSENI: Thank you, Mr Pollock.

PN338

So if you take a look at that you will see the number of employees actually far exceed the shift ratio target didn't they?‑‑‑Absolutely. And a number didn't make it.

PN339

But those that exceed it still got paid a salary that was worth the value of the lower target, 1.55?‑‑‑They got paid a salary, that's correct.

PN340

And if the salary isn't full and final satisfaction of all the shift penalties and what have you and so they worked excess night means, arguably, they're worse off. It means you've (indistinct) haven't you?‑‑‑Yes.

PN341

And maybe you can't verify this on the spot, but you've taken the average shift ratio achieved by all the FSEs, that's set out in the labour review data, that gets us to 1.54. That's just – just short of the target of 1.55. Do you accept that?‑‑‑No. I don't, because I don't know the data. I can't confirm or deny that.

PN342

Well - - -?‑‑‑I'll take your word for it but, you know, on that basis it's marginally below where, you know, I'd like it to be, or I would have liked it to be.

PN343

But averaging it like that would include people on rosters with lower targets, wouldn't it, for the different rosters and some of those rosters would have different targets. Is that correct?‑‑‑No.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN344

So if there's a roster that only works day shifts, then we can go through part (b) and look at one?‑‑‑It depends which VSEs – FSEs you've picked up. But I mean it's – you know, they're subject to the group. You know, the rosters, you know, range from 35 hours a week to 42 hours a week.

PN345

If you look at something like the – so I'm looking at the agreement, it's page 177 of the court book or 1.4 of part (b), receival and delivery or gear foreman roster?‑‑‑Yes. We don't have a gear foreman.

PN346

You've got receival and delivery?‑‑‑We don't have anyone on that roster.

PN347

Okay. We'll take another one. The wash and refill roster - - -?‑‑‑Yes.

PN348

- - - base?‑‑‑Yes.

PN349

Then the target for that would be lower, wouldn't it?‑‑‑Yes. It would be for that one. Yes. For two people.

PN350

And if you remove those from the average, it actually puts it at 1.57?‑‑‑What, remove those two people?

PN351

Well, it goes through the - - -

PN352

THE COMMISSIONER: The clause at 1.57, Mr Mohseni, I'm confused there (indistinct) at 1.57.

PN353

MR MOHSENI: The average shift ration achieved by the FSEs.

PN354

THE COMMISSIONER: Shift ratio?

PN355

MR MOHSENI: Yes. So what ratio of – so day, evenings and night shifts they work, which – which tells the respondent how much value they are getting out of those shift allocations, because some of the shifts are worth more than others, but the salary is paid in full and final satisfaction of all the penalties and what - - -?‑‑‑Their roster is actually built around the, you know, straight days shift roster.

PN356

But if you – if you go through and remove – and (indistinct) shift ratio is sort of below 1.2, that actually puts the average above your target?

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN357

MR POLLOCK: I'm sorry, Commissioner. I'm not sure I understand the relevance of this line of cross-examination, when you go to selectively start pulling out parts of the data and then hypothesise as to what the conclusion might be (indistinct) going to assist you at all.

PN358

THE WITNESS: For two people.

PN359

THE COMMISSIONER: Just a minutes, Mr Jefferies, please. When there's an objection if you don't mind - - -?‑‑‑Sorry.

PN360

(Indistinct) say nothing. Mr Mohseni, I'm also a little confused as to what this all – where this is all going.

PN361

MR MOHSENI: The relevance, Commissioner, is just that there is this metric for, you know, say business performance and that is the roster utilisation.

PN362

THE COMMISSIONER: What is this data? I haven't sort of – it's unclear to me what this is. Perhaps you will make that clearer to me during the course of the submissions. But I'm just not sure what Mr Jefferies' view as to particular – one particular aspect of it – how that assists.

PN363

MR MOHSENI: What I'm getting to, Commissioner, is that if, as Mr Jefferies says, the shift ratio – he refers to it at paragraph 21 of this statement – is relevant - - -

PN364

THE COMMISSIONER: At paragraph 21 he refers to - - -

PN365

MR MOHSENI: He describes that first metric in 8.13.8 interchangeably as either roster utilisation or shift ratio.

PN366

THE COMMISSIONER: Yes. And I've understood – I understood from the material that the relevant data set out at 8.13.7 was part of what formed the metrics by which 8.13.8 was satisfied. Is that where you are going?

PN367

MR MOHSENI: Well, our submission – not to get into submissions too deeply now, but weeks of utilisation must means utilisation. So whether employees are being rostered to work – but I mean, if we're wrong on that and shift ratio does have something to do with it, then what I'm trying to put to Mr Jefferies is that the shift target is actually satisfied.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN368

THE COMMISSIONER: I see.

PN369

MR MOHSENI: (Indistinct) because the (indistinct) if you take into account outliers, the average is 1.54 and if you take out the outliers, because they're anomalous because they only work a certain type of shift. It puts the average above the target and so that metric is, even on the respondent's construction satisfied. That was the submission we were going to make.

PN370

MR POLLOCK: Commissioner, I understand the submission that my learned friend seems to be suggesting that he would make. What is not at all clear is how one would go about removing outliers and what the basis for that would be. Now, I know there's a risk here in getting into, you know, submissions in the course of objections and I want to be careful not to get into that.

PN371

THE COMMISSIONER: Yes.

PN372

MR POLLOCK: But if my friend has some proper basis to advance why certain outliers might be removed, which certainly hasn't been explained to date, it's not apparent to me why this line of cross-examination ought to continue. If he wants to make a submission about things at the end of the day, that's fine, but I'm not sure how this is going to assist on all this without there being some explanation as to why these outliers ought be removed.

PN373

MR MOHSENI: The outliers were removed because they skewed of the data, because the purpose of the metric – at least, the shift ratio metric is to look at the spread of shifts that there were some employees who don't work days, evenings and nights. So you naturally take them out.

PN374

MR POLLOCK: Okay. I'm not sure we're in a world of – we're not lopping off the East German judges in – you know, to take some kind of weighted median or average. There is nothing to suggest that that would be the case. I'm in your hands, Commissioner, but I'm just really not certain how this line of cross-examination is assisting.

PN375

THE COMMISSIONER: Keep going for now, Mr Mohseni, if you feel that – it's certainly not apparent to me at this stage how this is going to assist, but I don't wish to cut you off.

PN376

MR MOHSENI: I think I've exhausted my questions for Mr Jefferies there.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN377

So moving on from 35A. Sorry, one more question. Sorry, Mr Jefferies. Just bear with me. Just on the relevance of shift ratio to the roster utilisation metric, when – do you have the court book in front of you?‑‑‑I've got the – I don't have the court book in front of me. I've got the metrics you're talking about.

PN378

Well, I just wanted to take you to actually something that was annexed to our F10 application. It was an email from you on 8 November.

PN379

THE COMMISSIONER: Do you have that email, Mr Jefferies? 8 November which year, Mr Mohseni?

PN380

MR MOHSENI: Sorry? 8 November 2021.

PN381

THE COMMISSIONER: 2021.

PN382

MR MOHSENI: I can read it out to you if that would help?‑‑‑That would be great, thanks.

PN383

MR MOHSENI: It reads:

PN384

Hi Shane and Bob, further to the points raised at the national review on Friday 29 October and further to our discussion at the ERC meeting last week, (1) maintenance VSE to FSE Dean Xuereb, it's not agreed to upgrade Dean based on the following; there isn't a currently a vacant FSE electrical position in the maintenance department.'

PN385

Well, that's no longer an issue,

PN386

8.13.8 doesn't differentiate between operational VSEs from maintenance VSEs. As such, Dean Xuereb has been include in the VSE pool for the purpose of assessing upgrades from VSE to FSE. Melbourne VSEs as a group, don't tick all the boxes. (1) roster utilisation measure not met. Operational FSEs incurring cancelled shifts, so roster is not being utilised.

PN387

So what made you change from putting roster utilisation strictly in terms of cancellations. So you are now saying that roster utilisation also incorporates the shift ratio?‑‑‑Because I think that both of them come into the party but, I mean, even just roster utilisation - just take that alone – there are cancellations, not required shifts, in the roster and, you know, nowhere in the agreement - - -

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN388

Just talking about the - - -

PN389

THE COMMISSIONER: Let him finish, Mr Mohseni.

PN390

THE WITNESS: Nowhere in the agreement does it differentiate between maintenance VSEs and operational VSEs. It talks about VSEs as a group and where something is separate in the agreement that does impact a different type of VSE it's clearly stated in there. And the only part that I can think that that is the place – is the case is in part B where it talks about 12-hour shifts.

PN391

MR MOHSENI: That's not the question I asked you, Mr Jefferies. The question I asked you is about what the metric actually is; the roster utilisation metric?‑‑‑In the first instance, it is cancellation for not required shifts.

PN392

So where – so shift ratio has nothing to do with that, because it's a utilisation?‑‑‑No. Shift ratio – you know, if you've got somebody working on a roster and I'm not getting value out of that roster, because they are not working enough evening shifts or nightshifts, the shift ration absolutely comes into it. And I'd be sitting down with the ERC or Adrian or somebody to say that we need to review this and we need to change this roster or reduce the number of people on the roster.

PN393

But that's a consideration separate to roster utilisation. That's just the - - -?‑‑‑No, it's not.

PN394

- - - value that gets placed on - - -?‑‑‑No, it's not.

PN395

Okay. I'm almost finished, Mr Jefferies. I guess this isn't so much a question but more a proposition. So you also said in that email that there were 369 not required shifts. If you go to pages 10 to 13 of the data sheet where it says shift cancellation by type from the period between 17 March 2021 to 31 August 2021.

PN396

THE COMMISSIONER: Where is that in the court book, Mr Mohseni?

PN397

MR MOHSENI: I'll bring that up for your Honour in a moment. It starts at 204 of the court book, Commissioner.

PN398

THE COMMISSIONER: 204.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN399

MR MOHSENI: Mr Jefferies, if you add up the last column, which is the count of not required shifts, the total is actually 308, not 369?‑‑‑ There may have been people removed out of it, because they'd left the business. I'm not sure of the reasoning for that. Suffice to say, 308 or 369, they're still not required shifts.

PN400

But that's significantly less than you first put at the outset, correct?‑‑‑Mate, without looking at the – seeing the email and the details behind it, you know, I doubt it. Because I suspect – I don't know.

PN401

Okay?‑‑‑But 300 is still a substantial number. And 300 is far more significant than, you know, the shortage that you are talking about.

PN402

Well, we move on then to 35(c) where you've said, you've said again in that email – 35(c) of your statement – sorry, Mr Jefferies – VSE earnings were not on average 15 per cent above the minimum salary in the agreement. Again, it's a calculation that you obviously have to do off the cuff, but the VSE salary as at October 2021 was $79,352. Wasn't it?‑‑‑In October?

PN403

October 2021?‑‑‑Yes. Well, it's something like that. I haven't got it in front of me, but yes, 79,000-something.

PN404

So if you multiply that by 1.15, you get $91, 254.80. Happy with that?‑‑‑I'll take your word for it at the moment.

PN405

Then if you go to pages 20 to 25 of the labour review data, the Commissioner I'll get you that?‑‑‑Pedram, can I just stop you there for a minute though. The labour review that we were doing, the minimum salary at the time was $77 400. You're picking up the following year's salary increase.

PN406

Okay?‑‑‑So, the $77 400 and something dollars with 15 per cent on top of that, takes you to $89 000 and something. In my recollection of the time, was that there was – the average VSE earnings was $87 000 something, $87 500.

PN407

Well, we took the average of all the VSSR's as listed in the data and the figure we got was actually $97 315.53?‑‑‑

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN408

MR POLLOCK: Commissioner, I'm sorry, can I interject here. These materials, this data has been before the Union for many, many months now, in circumstances where it was provided during the course of the review process. There's been no evidence put on, and in circumstances in chief, or in reply and we have to now cavil with it. It's a very unsatisfactory way to seek to advance what are – seeking to have this witness deal with mathematical calculations on the fly. Had there been a contention that this data was inaccurate or some different conclusions ought to have been drawn from it, then it should have been dealt with by way of evidence prior.

PN409

THE COMMISSIONER: Is it understood Mr Mohseni, he acknowledged that – I think he used the words, he appreciated that these calculations being made on the hop – I'm not sure of your words – but that was the essence Mr Mohseni, of what you said.

PN410

MR MOHSENI: I accept it's not ideal to do it in this way, but it's how it's happened. I apologise, but the fact stands that the labour review data shows that the average is around $97 000, which is actually significantly more than 15 per cent higher?‑‑‑Can I ask what are you averaging, Pedram? What, what figure are you averaging?

PN411

So, it's page 20 - - -?‑‑‑Just the column; the column's fine.

PN412

Yes, and then if you migrate into Microsoft Excel, and - - -?‑‑‑I saw how you did it, what columns are you averaging?

PN413

Just grand total.

PN414

THE COMMISSIONER: Mr MOHSENI, you don't expect Mr Jeffries to migrate into an Excel spreadsheet now, do you?

PN415

MR MOHSENI: Not now, I'm just saying that we've done it, and that's the figure we got?‑‑‑But again, in fairness, and with greatest of respect, there is also tools in the agreement where it talks about the earnings of VSE's, bonus payments and closed port days that are taken out of that, when you're looking at VSE earnings, in any financial year. So, you're actually including – if you're using the grand total, you're including those other numbers in that figure.

PN416

But what those - - -?‑‑‑So, I'd argue that the data that – the information that you're giving me is wrong.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN417

Why would you take those payments out?‑‑‑Because there's a clause in the agreement, and I think it's Part A eight point something or other, eight point something, 8.15, that talks about earnings for VSE's and supplementaries in any financial year.

PN418

MR POLLOCK: It's 8.15, Commissioner, there's – the words are 'for the purposes of this clause, earnings and bonus payments and CPE's will not be taken into account when determining the earnings of VSE's and supplementaries in any financial year'.

PN419

MR MOHSENI: That's Part B, is it?‑‑‑No, it's Part A, Pedram.

PN420

THE COMMISSIONER: What clause did you say, Mr Pollock?

PN421

MR POLLOCK: If I understand it's the clause that Mr Jeffries is referring to.

PN422

THE COMMISSIONER: Mr Jeffries, is it 8.15 that you're referring to?‑‑‑Yes, it is, Commissioner. Part A, 8.15.

PN423

So, 'The company will ensure that the individual earnings of VSE's and supplementaries within any financial year does not exceed the sum of...' Is that what you're - - -?‑‑‑Yes, and it goes down the – there's a - - -

PN424

'For the purpose of this clause, earnings from bonus payments and CPE's will not be taken into account when determining the earnings'?‑‑‑That's it.

PN425

Thank you.

PN426

MR MOHSENI: Sorry, Commissioner, I wasn't aware of this, 8.15, but in that case, I'd have to recap that at – if it's acceptable, and if – perhaps Mr Pollock has something to say about it, but just on that question, whether the fourth criterion is actually met. If I could just provide a note to chambers after the hearing, once I've done the calculation.

PN427

THE COMMISSIONER: No, Mr MOHSENI, that's not appropriate, whether or not Mr Pollock agrees to it or not. It's impossible for me to conduct a hearing in that way and make an informed proper decision, given that then there's no opportunity to challenge the figure. Is there an opportunity to make a submission as to the basis for the calculation on the basis for the figure. So, what is it that you're attempting to establish by - - -

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN428

MR MOHSENI: Well, I guess by taking – I thought I was just clarifying Mr Jeffries' comment that the average earnings in the actual present met. So, I just took the average and saw that it appeared to be met. But now Mr Jeffries has told me that non-(indistinct) practices of that clause you take certain components out of it.

PN429

THE COMMISSIONER: How will you know, and how many, what's taken out of it? How do you know?

PN430

MR MOHSENI: It's in the – again, if you look at – from page 20 onwards of the liability data, the bonus in the closed port was listed there. So, you just subtract it.

PN431

THE COMMISSIONER: What page of the court book?

PN432

MR MOHSENI: You can see it at – from 62 onwards.

PN433

THE COMMISSIONER: Page 62?

PN434

MR MOHSENI: 62, yes. The same data that (indistinct).

PN435

THE COMMISSIONER: So, what is it that you're seeking to add up or take out, or what are you going to do?

PN436

MR MOHSENI: So, I took the average of the VSE salaries, based on the final column.

PN437

THE COMMISSIONER: On the final column?

PN438

MR MOHSENI: Yes.

PN439

THE COMMISSIONER: So, you went to every VSE, went to the final column, is that what you're saying?

PN440

MR MOHSENI: Yes. So, I just - - -

PN441

THE COMMISSIONER: Put them all together?

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN442

MR MOHSENI: I just – after the hearing, just as Mr Jeffries said, taking out the bonuses and the closed port payments that are in the middle columns, and recalculating them.

PN443

THE COMMISSIONER: Mr Pollock?

PN444

MR POLLOCK: Well, Commissioner, I think your initial observations were pretty apposite. This will end up, at least bifurcating the hearing. I can't – my friend's given a broad indication of what he would propose to do by way of a further note, but that would obviously require a further hearing date for Mr Jeffries to be able to deal with those matters. There's been no indication in – despite these materials, as I said, in the hands of the union for many, many months. There's been no indication that any of this was in the (indistinct) this case.

PN445

There's no submissions on it; there's no evidence adduced to deal with it, and it's my friend's application. It was incumbent on my friend to outline the contours of the case so we could properly respond to it. I appreciate the circumstances that my friend is in, but to be frank, Commissioner, in order to ensure the efficient exposition of proceedings, which of course the objects of the Act require you to do, my friend has put his case. To seek to materially depart from it, on issues that haven't been canvassed prior, is really unsatisfactory, Commissioner. It is my submission you wouldn't allow it.

PN446

MR MOHSENI: Commissioner, sorry, can I have a five minute adjournment to seek instructions from Mr Evans?

PN447

THE COMMISSIONER: Yes, I'll adjourn for five minutes. Noting my comments, though, Mr Mohseni, that it is in my view, entirely inappropriate that you provide a note – I think you called it a note of this nature after the matter is complete.

PN448

MR MOHSENI: Yes, Commissioner.

PN449

THE COMMISSIONER: Thank you. We'll just take a five minute adjournment now.

<THE WITNESS WITHDREW [12.02 PM]

SHORT ADJOURNMENT [12.02 PM]

RESUMED [12.07 PM]

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

<SEAN BRUCE JEFFERIES, RECALLED [12.07 PM]

CROSS-EXAMINATION BY MR MOHSENI, CONTINUING [12.07 PM]

PN450

THE COMMISSIONER: Are we back on the record now?

PN451

THE ASSOCIATE: Yes, confirmed Commissioner, recording has recommenced.

PN452

THE COMMISSIONER: Thank you, Mr Mohseni, how did you go?

PN453

MR MOHSENI: Thank you, Commissioner. So, I'll wrap up the thing about the VSSR very quickly.

PN454

THE COMMISSIONER: Thank you.

PN455

MR MOHSENI: I need to put on a further calculation, so basically, all I'll put to you Mr Jeffries is that 8.15 which you've drawn my attention to imposes a salary cap on VSE's. It's a completely separate and unrelated clause to labour clause, and so that proviso that earnings from bonus payments and closed port days aren't taken into account, is strictly for the purpose of the salary cap and not for the purpose of VSE earnings under the labour review data.

PN456

So, I put to you again, that the average VSE earnings, as taken in that final column of the labour review data, is actually significantly higher than 15 per cent above the VSE minimum. Even more so, if you take it off the previous years, so the 2020 VSE minimum. So, that metric is actually contrary to what you said?‑‑‑Pedram, it also includes back-pay, and back-pay, certainly under any circumstances isn't included in the average earnings.

PN457

Back-pay is significantly less than the other bonuses. I don't see any – even if you include it, I don't think it would affect the average. But yes, I put to you that the metric is made?‑‑‑I put to you that your financial calculations is incorrect.

PN458

Well, almost finished. 37(a), you said that maintenance employees were only utilized 78.6 per cent of the time. That includes time spent cleaning work bays?‑‑‑Yes.

PN459

When you say 78.6 per cent of the time, that's referring to time spent doing tasks that were logged, is that correct?‑‑‑That's from their self-reported work orders. The work orders that each of the tradesmen fill in themselves.

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN460

So, when they're not doing tasks that are logged, they're actually on stand-by in case of a break-down, aren't they?‑‑‑I don't know. Not always. They don't sit there waiting for a break-down.

PN461

Well, that's the nature of having in-house maintenance, isn't it? That you've got them on stand-by in case machinery breaks down?‑‑‑But they do not sit there waiting for a break-down. There are other tasks that they have to do and there'll be work orders that need to be done.

PN462

So, there are no sort of dedicated tradesmen who are on stand-by for break-downs and other - - -?‑‑‑But they're allocated other tasks at the same time. There are break-down crews, which is what you're referring to, but they're allocated to other tasks. If there's no break-downs, they don't sit there, or they're not supposed to be sitting there doing nothing. Otherwise, that would be a lot of labour.

PN463

Looking to 38, and we sort of addressed this a bit earlier, but I'll put it to you again that it's not true that you'd lose the ability to flex them up and down, because the maintenance roster does allow for the allocation of regular shifts, doesn't it?‑‑‑Yes, absolutely. There's a regular component in there. But if there's no work for them to do, whether it's a regular or not, but if there's no work for them to do, there's no work for them to do. It doesn't matter whether they're a regular or a straight day shift.

PN464

But when you say his utilization would drop even further, even further from what? You're suggesting his utilization has already dropped, when there's no evidence it has?‑‑‑I don't think I've said that. I think I've said that the VSE – sorry, the electrical utilization is 78 point something per cent.

PN465

Paragraph 38 of your statement, I'll read it out to you.

PN466

THE COMMISSIONER: Do you have your statement Mr Jeffries, there?‑‑‑Yes, I'm just going and finding my way there.

PN467

MR MOHSENI: As to the sample of data being sure of what the mix of different shifts, if DP World Melbourne Ltd was required to promote them, which would mean that you work a (indistinct) roster?‑‑‑No, I said that. We looked into it at the time, so that will be all right.

PN468

It dropped even further from what?‑‑‑Sorry?

*** SEAN BRUCE JEFFERIES XXN MR MOHSENI

PN469

It dropped even further from what? It doesn't make sense?‑‑‑He'd be doing a higher percentage of day shifts than what he does now.

PN470

Even though he's rostered to work almost as much as an FSE which you can tell from his salary?‑‑‑Even though he's rostered to work as much, he's allocated – not rostered.

PN471

Allocated, sorry?‑‑‑And he has a – without having a look at his exact details, but I don't have those, but there's a high percentage of night shifts and weekend premium shifts that Dean works.

PN472

I'll let it rest there. That's all my questions for Mr Jeffries, thank you.

PN473

THE COMMISSIONER: Thank you very much, Mr Mohseni. Mr Pollock. Mr Pollock, you might be on mute.

RE-EXAMINATION BY MR POLLOCK [12.20 PM]

PN474

MR POLLOCK: My apologies, Commissioner. Usually, I'm the one pointing it out, but I slipped this time. Just a couple of questions, Commissioner. Mr Jeffries, you were asked some questions, you might recall, some time ago about the maintenance area, and your reference in your witness statement, to it being a cost centre?‑‑‑Yes.

PN475

Can I just ask you a few questions about that. Is it right or not that the maintenance area, your maintenance employees aren't charged out to other clients? They don't directly earn revenue from those maintenance services? You don't provide those to third parties, do you?‑‑‑No.

PN476

In that sense, is it in that ordinary sense of the word, or the term cost centre, that you're referring to the maintenance area?‑‑‑Yes, it is.

*** SEAN BRUCE JEFFERIES RXN MR POLLOCK

PN477

You were asked, you might recall, a series of questions about the roster utilization metric and the relevance of the shift ratio, and there was a lot of backwards and forward on that issue trying to get to the connection between the two. Can you – just for clarity, can you just explain to the Commissioner, the connection between the shift ratio number and how that informs your assessment of whether or not rosters are being effectively utilized for the purposes of that roster utilization criteria?‑‑‑Yes, the nature of the rosters are, you know, there's multiple rosters, but they predominantly work across three shifts of the day, day, evening and night shift. The roster usually – you know, the expectation is that they work basically an even number of shifts across each of those categories, be it day, evening or night, to give a roster utilization of around 1.55. Being that a day shift is worth effectively one, an evening shift 1.5 and then a night shift, two from a valuation point of view.

PN478

As we've seen in the materials that you were taken through and the data you were taken through in some detail by my learned friend in cross-examination, that shift ratio is part of the relevant data that is provided for the purposes of conducting (indistinct)?‑‑‑Yes, it is.

PN479

Thank you. Nothing further in re-examination, Commissioner.

PN480

THE COMMISSIONER: Thank you Mr Jeffries for your evidence. You're now excused.

<THE WITNESS WITHDREW [12.04 PM]

PN481

THE COMMISSIONER: Anything else, Mr Pollock?

PN482

MR POLLOCK: No, Commissioner, that's the evidence on behalf of the respondent.

PN483

THE COMMISSIONER: Thank you. Mr Mohseni, if I take a brief adjournment, will you be ready to proceed with your submission?

PN484

MR MOHSENI: Yes, Commissioner.

PN485

THE COMMISSIONER: Will 10 minutes suffice? Can I get an indication Mr Mohseni, as to the time you anticipate taking?

PN486

MR MOHSENI: Time, five, 10 minutes, tops.

PN487

THE COMMISSIONER: In that case, then, do either of you require a break now?

PN488

MR POLLOCK: I'm content to press on now, Commissioner.

PN489

THE COMMISSIONER: Mr Mohseni?

*** SEAN BRUCE JEFFERIES RXN MR POLLOCK

PN490

MR MOHSENI: So am I, Commissioner.

PN491

THE COMMISSIONER: Thank you.

PN492

MR MOHSENI: So, the first thing I wanted to touch on just because it kind of goes to the root of the arbitration and it's referred to at 43 of the respondent's outline, where they say 'the labour review clause doesn't touch on particular cases.' To that, we say that we'd be content with an order simply that an additional maintenance FSE be appointed and maybe that would require a slight amendment to the question for determination. But we don't think it matters, because Mr Xuereb's the only maintenance VSE, who wants the promotion. I mean that's almost a matter for the union, someone can file, just for more than anything else, but and for another way of looking at it, is if the Commissioner, you agree with our interpretation of clause 8.13.8 and that the metrics as we see them are met, but aren't satisfied that you should order Mr Xuereb's promotion in particular, then we'd ask that you just order the creation of a new maintenance FSE role. Yes, we'd be content with that. So, that's the first thing I wanted to address.

PN493

Then the next thing I just quickly want to touch on, the textual and contextual and proposed matters raised by the respondent's submission on the construction of 8.13.8 of the labour review clause. To really briefly summarise it seems that saying because various parts of the workforce review mechanism speak in terms of things like prevailing business conditions, or business volume. When all of the criteria set up by those mechanisms must be directed at the whole of business level and our response to that is simply, there are many ways to measure business performance. There are different aspects to business performance.

PN494

So, for the purposes of the labour review clause, what the parties have done is they've agreed that if these arbitrary figures are met, and even if that is in respect of a particular division of labour, then that in itself is an indicator of sufficient business performance for the purposes of the clause. So, for example, just because the business downturn clause has a holistic outlook, doesn't really tell you anything about how the labour review clause is meant to work, because that sets up two different tests with different criteria.

PN495

But using the respondent's logic, you could look at another aspect of clause 8 and it does actually contemplate a more granular view of the respondent's labour force and could draw inferences from that about how the labour review clause should be interpreted. I'm referring to clause 8.20 of the agreement and that reads, or at least the first part of it reads:

PN496

n circumstances where the Company has a need to reduce the size of all or part of its Permanent workforce, it shall advise the Union and Employees, in accordance with the Introduction of Change clause 27.0 of this Agreement or where the processes in 8.13.16 -8.13.23 have been complied with.

PN497

Or in particular, also at 28 of the respondent's submissions they say, 'the EA expressly treats operations and maintenance employees as part of a single work group in areas other than contextual matters they raised'. The two examples they give, we say, neither of them are telling. The first is that in 3.2 of part B they say maintenance appears in the general operations roster. Actually, it doesn't. What they're referring to there is the list of full time salaries and they happen to all appear together and we say that's neither here nor there.

PN498

The second example they raise is that operations and maintenance are treated as one for the purposes of health and safety presentation. But they footnoted clause 21.10.1, and that actually says 'The parties agree that there must be a spread of HSR's across employment categories'. So, that's VSE's supplementaries, and covered by the operations and maintenance, which we say is actually an indicator that these are two groups of employees that are treated separately.

PN499

But in any case, there's obviously, if you look at our written outline and look at the respondent's written outline, and things I've just referred to, the textual and contextual consideration factors the point each way. We say the tie-breaker, if you will, is that the sort of industrial reality at (indistinct) is the operations and maintenance are distinct groups of employees. Aside from what we say is an anomalous factor of the maintenance store room, which is just a store room with a couple of employees in it. There's no cross-over whatsoever between the operations and maintenance roles. They are rostered differently, their utilisation has different implications to the respondent's business performance and so, that is what we think the Commission should primarily take into account in interpreting the clause.

PN500

The next thing I'd like to turn to is the sort of list of criticisms of our construction which are at 30 to 40 of the respondent's outline. Some of them overlap, so I've tried to group them accordingly. I'll start with the second and third and they appear at paragraphs 32 and 33. There they say that the appointment metrics are just tools to assess the operative criteria in a business performance. Maintenance and operations divisions are not separate businesses. They don't report separately and that they say it's supposedly non-sensical to assess business performance with respect to maintenance only. They refer to it being cost centre. They actually do, in some instances, report separately. Mr Jeffries refers to that in his own statement, at paragraph 19(h), I think it was. And if you also look through the (indistinct) data, the first tranche of data, on the first page of that data sheet, looks at number and types of shifts worked by operations at the CBSC(?) supplementaries.

PN501

The next tranche of it then has the number and types of shifts worked supplementaries, which shows that there are treated separately, these two groups of employees.

PN502

More fundamentally, we're not saying they're separate businesses, we're saying that they're different labour pools within the same business and the metrics for business performance, for the purpose of the clause, focus on maybe utilisation so if one of those metrics is met, in respect of one of those labour pools, then that would be a sufficient indicator of business performance, for the purpose of the clause. The fact that - we say the fact that they consider maintenance to be a cost centre actually assists us because it illustrates the point about different aspects of business performance.

PN503

So if maintenance is being cost effective then that shows that that aspect of the business if performing well. So even if the overall business wasn't as profitable during a certain period, it wouldn't make sense, for example, to call for redundancies in maintenance, if maintenance employees were working flat out around the clock because they're a cost effective part of the operation and they'd be providing value for money.

PN504

The fourth criticism, at paragraph 34, asks why we should stop at the division between maintenance and operations and suggests that our construction would open the flood gates, so to speak, to further subdivisions and create uncertainty. We reject that. We don't submit that the appointment metrics could or should be applied at any more a granular level than the distinction between operations and maintenance. There's no basis to do so and we say that the respondent's submission here relies on a mischaracterisation of the labour force at West Swanson terminal.

PN505

The first four categories referred to by Mr Jeffries and rehearsed in the respondent's outline of submission we say, properly, they are just part of one category, and that's operations, because it's one interconnected process, all focused on container handling. Pin men and lashers will unfasten a container from a ship, the crane driver will pick it up, hand it to a straddle driver. The clerk or the equipment controller will tell the straddle driver where to put it.

PN506

Some of those subcategories of operations have dedicated rosters, but they still fit within the operations roster and employees do cycle through those different rosters. You would have heard, in evidence, there's a separate wash and refuel roster, but this is just one of the operational rosters and someone who normally drives a straddle might also regularly pick up a wash and refuel shift. But there's every reason to distinguish between operations and general versus maintenance. There's ample factual basis for it in the agreement we've set out in our written submission. The respondent, in some instances, reports on them separately and there's no crossover between those employees and their tasks.

PN507

Then, at 35, they've talked about the issue that a shift ratio is relevant to the roster utilisation metric. They say that the fact that there are different rosters doesn't assist our construction. But, as you would have heard, in my examination of Mr Jeffries, our position is that the shift ratio, or the target thereof, has nothing to do with that roster utilisation metric. So utilisation is about whether people are actually being rostered to work or actually performing productive work at the premises, and the shift ratio is just one way in which the respondent measures the value it gets from the type of shift.

PN508

THE COMMISSIONER: Mr Mohseni, while you're on that, how do you see the interaction between 8.1.3.7 and 8.1.3.8? So 8.1.3.7 talks about the relevant data and it sets out a number of matters, including shift cancellation or shift times, shift upgrades, et cetera, et cetera, and it's referred to as irrelevant data that will be taken into account, it seems to me, when conducting a labour review, provided (indistinct) union. Does that necessarily have a bearing on 8.1.3.8, for example?

PN509

MR MOHSENI: We say - I'm (indistinct) obviously there's a bunch of data that's provided and whether the metrics are met is determined by reference to that data but the data is - - -

PN510

THE COMMISSIONER: Sorry, just to break it up a bit. So that bunch of data, if I can call it that, is that bunch of data what needs to be taken into account to determine whether the metrics are met?

PN511

MR MOHSENI: Not all of it. I mean, at the end of the day, it's a labour review, so there's more to the labour review clause than just the appointments. The parties get together and they sit down and they go through all that data and they talk about ways to improve the business or ways to improve labour utilisation, or whatever, and it just so happens - - -

PN512

THE COMMISSIONER: 3.1.7 directly relates to 8.1.3.8 and then you've got 8.1.3.9 which then follows, which I read, on the face of it, it says nothing prevents the parties from agreeing to (indistinct) in the absence of any triggers. But does that not suggest that 8.1.3.7 and 8.1.3.8 are - - -

PN513

MR MOHSENI: They're certainly related. They're certainly related, Commissioner, but all it is, is that where you find the evidence that whether the metrics are met is in that data, but it's not that all of that data must be used or all of that data is relevant, for example - one point of the data point is annual leave balances, annual leave balances have nothing to do with the metrics.

PN514

THE COMMISSIONER: I guess (indistinct) pointing you, at this stage, and then (indistinct) it might be clearer. But (indistinct) how it is you say that I should make a finding as to whether or not the data before me is sufficient to satisfy me that 8.1.3.8 has been met, for example, which is the essence of your case, without the appropriate evidence before me as to what the actual data is that needs to be taken into account and the appropriate evidence that sets all that out? Because - - -

PN515

MR MOHSENI: The rest of - sorry, Commissioner, the rest of my submissions, which I'll get to, say that two of those metrics are satisfied, as a matter of course, in respect of the maintenance division. Another one, the respondent has conceded, is met. All that leave is the VSC (indistinct), and that's all you really need to be satisfied. That's our submission.

PN516

THE COMMISSIONER: But, again, so two of them are saying (indistinct) roster utilisation and no idle time, they, you say, are met.

PN517

MR MOHSENI: Yes.

PN518

THE COMMISSIONER: But if I don't know - again, I point (indistinct) 1.3.7, what the relevant data is that frames that? How can I make that finding?

PN519

MR MOHSENI: Well, Commissioner, the relevant data is what's annexed to the statement of Adrian Evans. Like, for example - - -

PN520

THE COMMISSIONER: That's only your view of it, what about what the agreement says? I raise this with you to enable you to give a response to that.

PN521

MR MOHSENI: I'm not sure I follow, Commissioner. Again, if we go to the annual leave example, it says - - -

PN522

THE COMMISSIONER: Relevant data is set out in some provision in the agreement, in 8.1.3.7, as to what data is to be provided when conducting the labour review. Is it the case then that that data forms, is part of what forms the criteria set out in 8.1.3.8?

PN523

MR MOHSENI: So 8.1.3.7 sets out what the respondent has to provide to us.

PN524

THE COMMISSIONER: Correct. It's described as 'relevant data', and I suspect - and my reading of it, I'm just wondering, when you read 8.1.3.7 through to 9, I take it that's the data that is relevant to determining whether or not (indistinct).

PN525

MR MOHSENI: We get the data for a broader purpose than just those metrics. The respondent gives the union the data and then through the employment representative committee they sit down and they go through it and they discuss aspects of the business generally. In addition to that, there are four metrics which are a subset of that data and whether those metrics are met is apparent from the data, but not all of the data is necessarily relevant. And, again, I give the example of something like the annual leave balance or the names and tasks of the contractors isn't really relevant to whether those metrics are met.

PN526

If you were to find, for example, Commissioner, that the shift ration that Mr Jeffries was talking about is, in fact, relevant to the roster utilisation metric, then you'd go through the data sheet that's annexed to both Mr Evans' and Mr Jeffries' statements and you'd flick through it until you find the heading, 'Earnings number of shifts performed and ratio', and you'd look at the shift rations and that would tell you what you need to know about that metric.

PN527

THE COMMISSIONER: Isn't that what you're telling me?

PN528

MR MOHSENI: That's the relationship between 8.1.3.7 and point 8, that we get a tranche of data and then some of that data goes to showing these metrics are met. Not all of it, but some of it. It's not as though, for example, you have to comb through every inch of the data to inform all the metrics.

PN529

THE COMMISSIONER: So you're going to tell me what data supports your case, are you? You're doing that?

PN530

MR MOHSENI: Yes. I'll get to that, in due course.

PN531

THE COMMISSIONER: Thank you.

PN532

MR MOHSENI: So, yes, our submission is that shift ratio has nothing to do with the roster utilisation metrics and all it tells you is how much value the respondent derives from permanent employees, based on what types of shift they do, so the more night shifts they work the better it is for the respondent because, as I was saying, in cross, the salary for FSEs is in full and final satisfaction of all the penalty rates, so all the penalty rates are built into it and they're fixed. But if you work more night shifts, then that's a windfall gain for the respondent. But an employee who mostly works day shifts and gets the same salary is getting a windfall gain. And, obviously, in some reporting periods, the ratio will be higher and that will be more beneficial to the respondent. Sometimes it will be lower an that average will be more beneficial to the employees, at large. But there's additional benefit that the respondent's deriving and that's the flexibility to sort of chop and change between how it allocates irregular shifts.

PN533

THE COMMISSIONER: What do you say the roster utilisation is, according to this data experience?

PN534

MR MOHSENI: It's the number of cancellations, as we'll get to later, because we say that you only need to apply the metrics to either the operations pool or the maintenance pool and maintenance employees, their shifts can't be cancelled.

PN535

THE COMMISSIONER: So do I take it then, from what you're saying, that your case necessarily fails if you are not successful in your position that the maintenance and operations are considered separately in determining business - - -

PN536

MR MOHSENI: Yes. (Indistinct) Just for the purposes of this clause, business performance, yes.

PN537

THE COMMISSIONER: Yes, to - - -

PN538

MR MOHSENI: It's a threshold (indistinct).

PN539

THE COMMISSIONER: Yes, a threshold. If you fail on that, then it necessarily follows you fail.

PN540

MR MOHSENI: Yes.

PN541

THE COMMISSIONER: Thank you.

PN542

MR MOHSENI: If you've got no further questions on that, Commissioner, I - - -

PN543

THE COMMISSIONER: (Indistinct).

PN544

MR MOHSENI: Our submission is that, yes, the shift ration doesn't really have anything to do with roster utilisation, as a metric, but even if we're wrong on this, then the target posited by Mr Jeffries was 1.55 and if you take the average of all FSE ratios in the data sheet, did you need the court book references again, Commissioner?

PN545

THE COMMISSIONER: No.

PN546

MR MOHSENI: Then the target is 1.55. The average or all FSE is 1.54, which is only just short. Then if you remove our guys, who only work day shifts - - -

PN547

THE COMMISSIONER: Sorry, remove who?

PN548

MR MOHSENI: Our guys, who only work day shifts. So the day shift ratio is artificially low and we say they should be removed from the average and then once you do that, it pushes it above the respondent's own target and so that metrics should be considered to be met, if it is relevant.

PN549

THE COMMISSIONER: Thank you.

PN550

MR MOHSENI: The next group of criticisms are the first, sixth, seventh, ninth and tenth. So that's at paragraphs 31, 36, 37, 39 and 40 of the respondent's outline. These, we say, the construction requires the Commission to read additional words into the agreement. It would render the BOSS(?) utilisation and idle time metrics otiose and so forth.

PN551

We say the respondent's submissions there misunderstand the Commission's task. So to say, for example, that a particular provision of an agreement might be left without work to do on a particular construction is to try and interpret the enterprise agreement as though it's a statute. It's not a statute. It wasn't drafted by parliamentary council, it was drafted by lay people, and we think the starkest indicator that it's poorly drafted is that the roster utilisation and idle time metrics virtually asserts the same thing.

PN552

The roster utilisation is about cancellations. Idle time is about not required shifts. Not required shifts are allocated after cancellations are exhausted so they're part and parcel of the same metric. Yes, that, inevitably, would make one or other of those metrics otiose, but we don't say you should call for some strained interpretation of the agreement to just give one or other of those metrics some work to do, you just take it as it is and take it as an exercise in approximation and if the metrics broadly show that the business performance is there to justify promotion, then you take it as such.

PN553

But we don't say that those metrics have no work to do, in respect of maintenance employees, we just say that they are automatically satisfied and we say that that makes sense because there's always going to be maintenance work and it exists in a sort of symbiosis or a mirrored lockstep with operations work. Maintenance is busiest when operations is at its most quiet, when equipment isn't being utilised or when there's delayed vessels or things like that.

PN554

Even if you think of it as those metrics not having any work to do, and that being a problem for construction, we say that's, once again, an example of poor drafting by lay people. It just wouldn't have occurred to the drafters, while they were drawing up the metrics, that there's actually a significant subdivision of the respondent's labour pool that are utilised differently and are subject to different rostering considerations.

PN555

So we're not really saying read words of the clause, we're just saying apply it flexibly, having regard to the industrial reality that these are separate, very distinct groups of employees. And having regard to the purpose of the clause, which we say is to hurry along the career progression of employees, as long as it's what the respondent wants. As long as the VSEs, once they become FSEs, are going to be utilised.

PN556

To that end the VSE earnings metric, on its own, is almost enough to indicate sufficient business performance, for the purpose of the clause, at least in respect of maintenance VSEs, because it shows the respondent's internal demand for maintenance work.

PN557

Mr Shourib's(?) salary, for the past few years, you can see in his statement, and compare it to the FSE salaries in Part B, I think it's clause 3.2 of Part B, he's only about 20 grand salary of the FSE salary, so he's being allocated quite a lot, more than any other VSE even, I think. So it makes sense to promote him. His evidence is that the other maintenance VSEs work almost as much has him, if not as much as him. So you can be satisfied that at least the VSE earnings, in maintenance, are more than 15 per cent higher than the VSE minimum.

PN558

We also say there'd be absurdity arising from the respondent's construction, in that if the respondent was right then we could put an airtight argument for promotions when the operations employees are going gangbusters but the maintenance employees are sitting around twiddling their thumbs and not justifying their salaries because, as we've seen from the evidence, maintenance is considered the cost centre, whereas operations is revenue raising.

PN559

So if figures are met, in respect of operations, because operations are - there's a high volume of containers or something and the overall business is being extremely profitable, but there's just not that much work for maintenance, in a given period, it wouldn't, industrially, or looking at, again, the intentions of the - behind the agreement, it just doesn't make sense to mandate promotions, in those circumstances. But that would be an inevitable consequence of the respondent's construction. On one view, while the union would complain about that, we acknowledge that it would be an absurd outcome.

PN560

THE COMMISSIONER: Mr Mohseni, Mr Jeffries, if I understood him correctly, said clearly the description of the maintenance employees as a cost area is really, for the purposes, if what I understood him to be saying, the profit and loss, business profit and loss statement, so that (indistinct).

PN561

MR MOHSENI: But they don't - - -

PN562

THE COMMISSIONER: It was, in essence, his evidence, in that regard?

PN563

MR MOHSENI: That was. But I don't see how it interferes with our case because they're not directly involved in raising profit. So the harder they work, the better it is for the business, but different aspects of the business, not so much the bottom line, at least not directly.

PN564

So for that kind of aspect of the business, we think it makes quite a lot of sense to view it in isolation. It's not an immediate profit raising activity, it's mostly just an outlay. But if it's an efficient one, then it makes sense to test it in isolation from the rest of the labour pool.

PN565

Then the eighth criticism is at 38 of the written submissions and that's (indistinct) where you elevate the eligibility of skills metric to an end of itself. Our submission does no such thing. We're just saying that it's a metric that sensibly can only be applied in respect of either part of the labour pool, and we're inviting the Commission to draw certain inferences from that.

PN566

So sort of following on from what I was just saying earlier, it would be impossible to measure how the availability of skills metric alone effects, say, the respondent's overall profitability or overall business performance. Because if there was an uneven spread of skills available to the respondent, in its rostering, then shifts wouldn't run smoothly and work, on a given shift, would be inefficient. If this happened often then, sure, the respondent's bottom line would suffer. Yes, that would effect profitability, in the long run.

PN567

But the labour review data doesn't quantify this and I think it's mathematically incapable of quantifying it. What it's doing - all it's doing is looking at a particular aspect of business performance, so whether individual shifts can run smoothly, given the availability of differently skilled employees, it's a short-term, not a long-term metric, and, yes, it's only applied in respect of particular labour pools.

PN568

So we're not elevating it to an end in itself, we're just saying that since this criterion can only be applied in respect of either roster or either labour pool, then you should infer that the other metrics must also be applicable or assessable by reference to particular rosters, with a view to measuring business performance on various levels.

PN569

THE COMMISSIONER: Why do you say that this metric can only be applied to - - -

PN570

MR MOHSENI: Because the evidence shows, we think, that operations and maintenance are completely distinct labour pools, especially in the right regard that operations aren't skilled or qualified or permitted to do maintenance roles and maintenance employees never perform any operations roles, unless it's, for example, test driving a straddle truck once they've repaired it. No maintenance employee would ever be a pin man or a lasher, they would never drive a crane, they would never drive a straddle, they would never do any container handling task, because they've got completely different skills. They've got specialised skills. So the availability of skills in one part of the respondent's overall labour pool, or the spread of availabilities, has nothing to do with the spread of availabilities in the other part of the business.

PN571

We say that what follows from that, if one of the four metrics can only be so accessible then so must the others, because they're in such close proximity to each other. So that's our submission on construction and yes, like we've already submitted in our written submissions, and as I have been saying there's no capacity under the agreement to cancel the maintenance (indistinct) shifts and overtime was never allocated to the maintenance rosters either.

PN572

So we say that those metrics are satisfied as a matter of course. Availability of skills it's admitted that it's met and the VSCs in the maintenance division are almost – salaries. So we say the evidence shows that in respect of the maintenance roster.

PN573

So on our construction the triggers are met. And I mean just on VSC salary alone I mean whether you accept the contention is a matter for you, Commissioner, but we say actually properly construed, the data shows that VSC salary for the whole site is also more than 15 per cent higher than the minimum salary when you actually look at the average.

PN574

So, yes unless you have got any further questions, Commissioner, those are my submissions.

PN575

THE COMMISSIONER: Thank you very much.

PN576

MR MOHSENI: Thanks.

PN577

MR POLLOCK: Thank you, Commissioner. That was a long five or 10 minutes but if you're content to press on I certainly am.

PN578

THE COMMISSIONER: Yes, thank you.

PN579

MR POLLOCK: Thank you. Commissioner, this application isn't about what might or might not make sense. My learned friend suggested well it makes to promote this area. Well, that may or may not be the case but it has absolutely nothing to do with the arbitration question aspect, nor does the question of what might or might not be what my learned friend considers to be efficient or otherwise. But the question before you is whether or not DP Melbourne is required by clause 8.2 in point 8 to promote Mr Xuereb to in their procedures position as an outcome of the 2021 labour review. The answers - - -

PN580

THE COMMISSIONER: As I understand though, sorry – so Mr Mohseni this morning has, in a sense, sought to amend that question.

PN581

MR POLLOCK: Yes.

PN582

THE COMMISSIONER: But - - -

PN583

MR POLLOCK: But in a personality agnostic term we've had.

PN584

THE COMMISSIONER: In the course of the submission, as I understood it, if I were to find against him in relation to (indistinct) on specifically that then I should that there's sufficient evidence before me that there's a role – an FSE role should be created (indistinct).

PN585

MR POLLOCK: That's as I understood the position. Now, of course, that's something that's unfolded for the first time in the submissions and we've certainly had no indication of that. I may need to take some instructions on that point, Commissioner, but - - -

PN586

THE COMMISSIONER: He has made the submission. So you need to - - -

PN587

MR POLLOCK: Of course. And I will take some instructions on that point.

PN588

THE COMMISSIONER: Should you do that now, do you think, before you - - -

PN589

MR POLLOCK: Perhaps if I can take 30 seconds I think I will be able to obtain that. Commissioner, my instructor is just taking some instructions on the point. I think I can commence my submissions and deal with that at the close.

PN590

THE COMMISSIONER: Thank you.

PN591

MR POLLOCK: In any event whether or not we're focused on a requirement to promote Mr Xuereb or we are focused on a requirement to promote someone to an FSE role the focus of this arbitration of course is what clause 8.13.8 requires.

PN592

Now, properly construed that clause doesn't require anything of the sort. The labour review mechanism focuses on the performance of DP World business and that business, as my learned friend conceded in his oral submissions, the union doesn't intend – I think – I took a note down, it said, we're not saying maintenance is a different business but rather it's a different labour pool within the same – that's going to be submission.

PN593

THE COMMISSIONER: I understood that to be the case of that submission.

PN594

MR POLLOCK: Now, the clause doesn't focus on labour pools. It focuses on business performance. That business is one indivisible business and it comprises both operations and maintenance employees.

PN595

Nothing in clause 8.13.8 text or looking at its context of purpose indicates that the clause should be applied at a team based level which is the way in which, of course, that the union intends that it ought. As I have set out in the written submissions and I will touch upon orally, those matters of context and purpose, if anything, support DP World construction which applies of course with that whole of business level.

PN596

Because the union's construction requires significant surgery to be done to the plain text of clauses required words to be read in to various parts of clause 8.13. It requires the Commission to ignore, remit other words, and of course to ignore those important contextual factors that I will touch upon.

PN597

But even if the union's construction were adopted, of course, the union is the moving party here, Commissioner. It's incumbent on the union to discharge its evidentiary onus to show that the requirements of clause 8.13.8 were met even on its construction. And simply put, Commissioner, the state of the evidence, regrettably, is medialis to put it politely. The evidence before you simply does not demonstrate, even on the union's construction, that those metrics in 8.13.8 are met.

PN598

Now - - -

PN599

THE COMMISSIONER: (Indistinct) Mr Pollock on why you say that?

PN600

MR POLLOCK: Why the evidence doesn't demonstrate those things?

PN601

THE COMMISSIONER: Yes.

PN602

MR POLLOCK: Well, perhaps I can cut to the quick of that. I was going to deal with that later in the submissions.

PN603

THE COMMISSIONER: No, please then (indistinct).

PN604

MR POLLOCK: I am content to deal with it now because it is an important threshold issue. The evidence that the unions adduced on this point. Now let's take their construction at times. Let's assume for the moment that we are dealing with two separate labour pools and that you are to apply clause 8.13.8 effectively as two separate labour reviews with two separate outcomes.

PN605

Now for all the reasons that I will address shortly that is absolutely the wrong way to go about it and do violence for the text and context. But even if you were to apply that in those terms what evidence do you actually have to move upon here to determine whether or not those metrics are met.

PN606

You have the evidence of Mr Evans at paragraph 34. Now his evidence there is to the effect of it says – well, 33 and 34 – in September 2021 the respondent conducted the labour review. The data prepared by the respondent pursuant to the review is annexed and marked A1. The data from this labour review has been taken over a 12-month period which identifies that Mr Xuereb worked 168 shifts in maintenance, 36 shifts more than the highest maintenance FSE. This combined with the fact that there was no idle time in the maintenance roster demonstrates that there is sufficient available work for him to be converted and receive an appropriate salary.

PN607

With respect to Mr Evans, that doesn't touch upon directly the four appointment metrics that are set out in that 13.8. The fact that there is no idle time in the maintenance roster well I will address you in due course, Commissioner, as to why that fact points tellingly against the union's preferred construction.

PN608

But of itself the sum total of ships that Mr Xuereb worked in maintenance doesn't assist you in assessing the roster utilisation. It doesn't assist you in assessing the earnings. It doesn't assist you – well, we certainly don't – we don't contest that the availability skills of some – that is dissatisfied. But it doesn't take - - -

PN609

THE COMMISSIONER: Did you say these are not (indistinct)?

PN610

MR POLLOCK: No. We don't suggest that the availability skills metric is not met. To put this in context, deputy President, I think I have promoted you a rung, Commissioner.

PN611

THE COMMISSIONER: No. I'll accept that.

PN612

MR POLLOCK: You might have seen in the written submissions this is dealt with at paragraphs part (d) – paragraphs 41 and 42.

PN613

THE COMMISSIONER: Yes.

PN614

MR POLLOCK: And paragraph 42, in particular. The remainder – as far as the evidence is concerned really is just a matter of unsubstantiated submission. You have a submission that well idle time must be met because we can't have our shifts cancelled. We have evidence of Mr Xuereb that well – I earn this amount therefore I assume that the remainder of the maintenance employees earned this amount.

PN615

That tells you absolutely nothing about what the – where the average salary sits vis-à-vis the agreement rate for the purposes of establishing the fourth metric. And as you doubtless would have drawn from someone taught you the cross-examination on these matters when Mr Jefferies was taken to the data. The union has fallen very far short of being able to demonstrate with any degree of cogency that these metrics weren't met even on their case.

PN616

Now if we are in a world, Commissioner, that you simply can't form a safe conclusion on those matters, based on the state of the evidence that was put before you, the union being the moving party here bears that onus.

PN617

THE COMMISSIONER: You still haven't addressed me specifically on what you say about the attachment to Mr Evans' statement and Mr Mohseni took me to Mr Jeffries and the Commission to an attachment detail. What should I make of that?

PN618

MR POLLOCK: This is the relevant data found.

PN619

THE COMMISSIONER: The data, yes. So he points to that data as I understand it to satisfy the Commission that at least roster utilisation he says is at 1.54 which is he said only just short of the 1.55 (indistinct) and he says when one (indistinct) – right? Those that work day shift, for example, then the metric should be considered until they're met (indistinct).

PN620

MR POLLOCK: Well, this was Mr Mohseni's submission - - -

PN621

THE COMMISSIONER: Yes.

PN622

MR POLLOCK: On that matter.

PN623

THE COMMISSIONER: Based on that data - - -

PN624

MR POLLOCK: That data. To be clear about all of this, Commissioner, this of course was the relevant data that was provided for the union for the purposes of the labour review.

PN625

THE COMMISSIONER: Yes.

PN626

MR POLLOCK: Now, at the close of Mr Mohseni's submissions it certainly wasn't at all apparent how or why one would remove what were called outliers, other than perhaps an unstated submission that well those numbers drag down the shift ratio.

PN627

Now that might be unfortunate for Mr Mohseni's case but there was no articulation as to why and how on the text – the plain text of clause 8.13.8 one would or 8.13.7 one would disregard certain parts of the relevant data in order to suit a particular outcome.

PN628

And just touching on this, Commissioner, you asked some questions to my learned friend around what to make of the relationship between clause 8.13.7 and 8.13.8. That is, unless as I understood the import of your questions, you were contemplating a link between the relevant data on the one hand, and the four metrics on the other.

PN629

My learned friend sought to extricate himself from that conclusion saying that some of it – some of it might be relevant but not all. The short order, Commissioner, of course that relevant data is relevant. It's called a 'relevant data' for a reason and it's relevant for the labour review process.

PN630

Now, in so far as my friend sought to suggest and it rose no higher than a question that he put in cross-examination which was refuted. There was no evidence put on to support this proposition that the proposition was, well the shift ratio is not relevant to roster utilisation. Mr Jefferies disputed that. There was no evidence to suggest that it isn't relevant to that criterion in circumstances where my friend took the opportunity to put on reply evidence otherwise but one has to wonder if it isn't relevant to that criterion - - -

PN631

THE COMMISSIONER: Sorry, Mr Pollock, the line just froze at that point.

PN632

MR POLLOCK: I'm sorry.

PN633

THE COMMISSIONER: Could you just repeat your last statement - - -

PN634

MR POLLOCK: I'm not sure where you lost me but I was making the submission concerning the shift ratio.

PN635

THE COMMISSIONER: Yes.

PN636

MR POLLOCK: My learned friend sought to challenge Mr Jefferies on the connection between the shift ratio and roster utilisation and Mr Jefferies disputed that and he said that it absolutely was relevant. My friend adduced no evidence, notwithstanding that he had and took up the opportunity to adduce further reply evidence orally today. He put on no evidence to dispute that proposition. And one has to wonder, Commissioner, what other relevance would that shift ratio data have. Relevant data under clause 8.13.7 is provided for a reason. It's relevant to the labour of the process. In all - - -

PN637

THE COMMISSIONER: Well, I understood Mr Mohseni said that part of it was relevant to – 8.1.3.8 and the data was a part of various other reasons of these as well. What do you say to the proposition that whichever way this goes and the ratio, the target of 1.5.4 has been met which is close to – he says 1.5.5?

PN638

MR POLLOCK: Well, Commissioner, for a start the fact that my learned friend accepted in his submissions that that target of 1.5.5 was not met really is a complete answer as far as that metric is concerned. My friend doesn't suggest that the data shows that in fact it was met. He simply says well we got close. We got close and if you lop off some of the data that doesn't help this then we have cleared it. That doesn't take my friend's case anywhere, Commissioner.

PN639

But, of course, as I think also emerged from Mr Jefferies' evidence whether or not the roster utilisation metric was otherwise met really isn't the ballgame here, Commissioner, for several reasons. There's no contest on the evidence that there was in excess of 300 of these not required shifts in the relevant data. I think there was some conjecture as to the proper number was 369 or 308. But as Mr Jeffries made clear that's still a significant number.

PN640

So on any view of the world that metric is not met. The roster utilisation metric we would say that the evidence shows it wasn't met and certainly my learned friend hasn't adduced any such basis to demonstrate that each of these four criteria were met on his construction.

PN641

Now, you would, Commissioner – you're not standing in the shoes of the employer here. You're assessing whether, on the evidence before you, in circumstances where the union is the moving party your tasked with answering a particular arbitration question. And, again, if the evidence before you doesn't satisfy you that those criteria were met even on the union's construction. If the highest it gets is you can't be satisfied, then that is the answer to the question. And the answer to the question is 'no'.

PN642

Now, perhaps, Commissioner I can return to the constructional questions because certainly, in my submission, they are determinative and as my learned friend has appropriately conceded if our construction is adopted then he fails at the threshold but we never get to a question of having to identify or evaluate the evidence.

PN643

Before I turn to those issues perhaps I can just touch briefly? The factual background, of course, is uncontroversial. You're assisted by the statement of agreed facts which covers the great bulk of it and I have distilled a lot of that in part B of the written outline.

PN644

You were, of course, taken to Mr Jefferies' statement at paragraph 19 and you were taken through some of the ways in which the operations and maintenance areas are either treated similarly or treated somewhat differently. There are certain findings that would be open to be made there. But, again, Commissioner I think it doesn't (indistinct) Mr Jefferies' evidence unfolded there's not terribly much between the parties on how all this is dealt with. But I would make this emphasis again going back to the submissions I was making a moment ago.

PN645

The evidence of Mr Jefferies of course concerning how one goes about determining the roster utilisation and the connection between the shift ratio and the roster utilisation, there was no contrary evidence to that to again say that connection, other than it just being put to him in cross-examination that there is no connection and he denied it. There is nothing to otherwise displace that evidence.

PN646

THE COMMISSIONER: If that is correct that he used the shift ratio to determine roster (indistinct) utilisation what do I take and what then?

PN647

MR POLLOCK: Well, what then?

PN648

THE COMMISSIONER: Yes.

PN649

MR POLLOCK: You're then left with two pieces of – well, one piece of evidence and one concession on the union's case. The evidence from Mr Jefferies is that the roster utilisation criterion wasn't met and you have the concession from the union that the shift ratio fell just short – that it was 1.54 – and it is only on the basis of some unstated criterion that you would pull out certain outliers that the 1.55 number would be met.

PN650

THE COMMISSIONER: Where did the 1.55 number come from again? The actual (indistinct)

PN651

MR POLLOCK: That is Mr Jefferies' evidence that that's the - - -

PN652

THE COMMISSIONER: That's the - - -

PN653

MR POLLOCK: - - - part of it.

PN654

THE COMMISSIONER: Yes.

PN655

MR POLLOCK: Yes. That's right. And that doesn't appear to have been in dispute.

PN656

THE COMMISSIONER: Thank you.

PN657

MR POLLOCK: Now, perhaps I can turn to these constructional arguments now. Can I take you, Commissioner, to clause 8.13?

PN658

THE COMMISSIONER: Have you finished? Before you do that, Mr Pollock, with idle time noting your concession with 'B' that idle time as the earnings being above 15 per cent? Have you worked that out?

PN659

MR POLLOCK: Well, perhaps I can briefly touch upon that before we get to the construction points. You will see from Mr Jefferies' evidence and I will direct you to paragraphs 29 through to 33 of his statement he describes the ways in which idle time can arise and the examples are set out at subparagraphs 29(a) through to (f), and he then explains how these non-required shifts can arise. And sets out why they are a concern for the business.

PN660

But you then see at paragraph 35(b) the data confirms that during the relevant period there was a significant amount of NRQs meaning that there was idle time. And, again, this is where that cross-examination went around that discrepancy between 369 on the one hand to 308. But that's consistent with Mr Jefferies' evidence there that it's a significant number of non-required shifts which lead - - -

PN661

THE COMMISSIONER: Is it 1.5 is the question? No, that doesn't need to be answered. There's no time or there's no factoring of anything on idle time. So the 1.5 - - -

PN662

MR POLLOCK: Sorry, Commissioner. You just cut - - -

PN663

THE COMMISSIONER: I'm sorry.

PN664

MR POLLOCK: I didn't get hear the question.

PN665

THE COMMISSIONER: I just want to make sure that there's nothing in the material, is there, that puts in relation to the idle time factor. Something like the 1.55 that was the accepted - - -

PN666

MR POLLOCK: As in a - - -

PN667

THE COMMISSIONER: (indistinct)

PN668

MR POLLOCK: - - - threshold?

PN669

THE COMMISSIONER: A threshold. Yes. Is there anything that I need to know that it hasn't (indistinct).

PN670

MR POLLOCK: As I understand - - -

PN671

THE COMMISSIONER: It's not something I have noticed.

PN672

MR POLLOCK: Bear with me just one moment, Commissioner. Commissioner, the answer to that is it's derived from the agreement and the criterion is not that you assess idle time. The criterion is no idle time.

PN673

THE COMMISSIONER: No idle time. I see.

PN674

MR POLLOCK: And - - -

PN675

THE COMMISSIONER: Whether it's 308 or 369 - - -

PN676

MR POLLOCK: No, no.

PN677

THE COMMISSIONER: It doesn't matter. It's no idle time.

PN678

MR POLLOCK: Yes.

PN679

THE COMMISSIONER: Which is why, Mr Jefferies, I take it gave the evidence that it's still significant.

PN680

MR POLLOCK: Correct.

PN681

THE COMMISSIONER: Saying - - -

PN682

MR POLLOCK: Yes.

PN683

THE COMMISSIONER: I see. Thank you.

PN684

MR POLLOCK: That's all right.

PN685

THE COMMISSIONER: And 'D'? So would you be saying there that even if you accept that the union fails at that point with idle time?

PN686

MR POLLOCK: Yes. Well, perhaps with this caveat. If the number of – let's for example say that the number of non required shifts or leading to idle time was negligible let's say it was – you know – de minimus amount there might be an argument to say well perhaps because the ultimate criterion that's assessed here is business performance that is evidenced by these four.

PN687

THE COMMISSIONER: By these four. Yes.

PN688

MR POLLOCK: These four metrics. Now, there might be an argument to say, well, the idle time here is of such limited or minimal impact that on any reasonable assessment that that wouldn't impact business performance. But you've got Mr Jefferies' unchallenged evidence that this was a significant number and he gives evidence at paragraph 31 of his statement as to why these things are of concern for business.

PN689

THE COMMISSIONER: Just a moment, Mr Pollock. Mr Mohseni has disappeared from screen.

PN690

MR POLLOCK: He seems to have disappeared from mine. No, there he is.

PN691

THE COMMISSIONER: Thank you. Yes.

PN692

MR POLLOCK: So in short - - -

PN693

THE COMMISSIONER: Thank you. I understand that.

PN694

MR POLLOCK: - - -in circumstances where it is a significant number that is a complete answer.

PN695

THE COMMISSIONER: And then, finally, 'D' the 15 per cent above?

PN696

MR POLLOCK: Yes. Well, here we ended up with a morass of evidence around the calculations of these things. Again, as I understood Mr Jefferies' evidence, the way in which Mr Mohseni had gone about these calculations, whatever you might say about the operation of clause 8.15, whether or not the bonus component was called in or out, and there might be a debate about what the proper construction is, but as I understood Mr Jefferies' further answer to the cross-examination after the adjournment was, well, you're building in back-pay to this in circumstances where that clearly can't be factored in.

PN697

So there's a reason I've raised that Commissioner, is that at the end of the day if we are left in a situation where the union's contention that this criteria has been met relies on assumptions and calculations that are done on the fly from the bar table with assumptions which on the face of it one would be very cautious about making, in my submission you simply couldn't safely draw the conclusion on the evidence that the data supports the contention that the union advances. Yes, as against that - - -

PN698

THE COMMISSIONER: Mr Jefferies gave – you cut out a bit, I'm sorry, there when you said Mr Jeffries gave some evidence on this point. On 8.1.5 I understood you to be saying that there might be debate on how 8.1.5 is applied and whether it's relevant to my consideration.

PN699

MR POLLOCK: Yes.

PN700

THE COMMISSIONER: I think you followed it up with something about Mr Jefferies saying in any event - - -

PN701

MR POLLOCK: He gave further evidence, you might recall, and again I just have my note, I don't have a transcript yet.

PN702

THE COMMISSIONER: Yes.

PN703

MR POLLOCK: He gave some further evidence that the union's averaging – that was based, you might recall, on the grand total column on the right-hand side – factored in back-pay. So it wasn't a – as I understood the import of the evidence, it included a component which was not reflective of the income actually earned in the relevant 12-month period.

PN704

You also have the evidence of Mr Jefferies at subparagraph 35(c) of his statement that during the relevant period VSE earnings were not on average 15 per cent above the minimum salary in the agreement. So you're not in a situation, Commissioner, where you simply don't have any evidence. You have Mr Jefferies saying, no, this wasn't met and the contrary contention that's being advanced is, again with respect to my learned friend, has some, you know, has been done on the fly in cross-examination and has some real question-marks as whether or not it would be accepted. Perhaps if I can turn to these constructional points now.

PN705

THE COMMISSIONER: Thank you.

PN706

MR POLLOCK: If I can ask you to turn up clause 8.13 of the agreement. Can I start with the plain text of clause 8.13.8. As I've indicated, and one sees this in the chapeau to the clause, the relevant criterion of business performance and the four (indistinct) that follow are the tools by which one assesses business performance.

PN707

As my learned has indicated he doesn't contend that the maintenance team is a separate business. There is one business here. It is the performance of that one business that is being assessed. Clause 8.13.8, and one also sees this more broadly when one examines the provisions established in the labour review, so 8.13.5 through to 8.13.9, there is no distinction made expressly or by necessary implication between different cohorts of employees.

PN708

In fact, to do so, and I'll touch upon this a little later in the submissions, to so would require reading in substantial words in each of these provisions. One also needs to examine the broader context in which these bracer provisions are found. If I can take you back to clause, the heading of 8.13. This is found two pages prior. It's headed, 'Workforce Review Mechanism'. Then 8.13.1 sets out the intention or the object of 8.13. It reads as follows:

PN709

This clause is intended to provide a structured approach to workforce reviews that take into account prevailing business conditions and to enable employees to provide feedback on business requirements where changes to the composition of the workforce are required.

PN710

Then 8.13.2 again focuses on the business level providing for meetings to be convened in the event of significant business changes. Commissioner, I'm just losing your visual. I'm now just getting a – there you are, you've popped up again. The Commission - - -

PN711

THE COMMISSIONER: No, I have not gone to sleep.

PN712

MR POLLOCK: No, no, I would hope that you hadn't.

PN713

THE COMMISSIONER: No.

PN714

MR POLLOCK: The reason I focus on these provisions, Commissioner, is again this demonstrates at the level of intent and at the level of object is a focus on the business in the workforce. There's no indication of any intention that this be – that the workforce be carved up in some granular way. This is intended to be a structured approach to examining business conditions and changes to the business.

PN715

Of course one sees this flow through to the balance of the subclauses in clause 8.13 because of course the labour review is not the sum total of the workforce review mechanism. It's one component of it. It's one way in which changes to the business which might require corresponding changes to labour requirements is assessed. You'll see, and that's headed, 'Positive Circumstances Labour Review', but then what then follows is a brace of provisions under the heading, 'Business Downtown', and that's found at clause 8.13.10 and following.

PN716

Then a process for implementing measures and reversion provisions and redundancy provisions. Consistent with that intentional provision of providing a structured approached, one has to construe the labour review provisions 8.13.5 through to 8.13.9 in the context of these other mechanisms that deal with the good and the bad. When one examines those other provisions, the business downturn provisions, for example, when you look at 8.13.10 that defines business downturn with a focus on loss of volume, actual or forecast which could cause potential redundancies.

PN717

The reversion provisions at 8.13.27, that talks about where the business meets previous volumes and the projected workstream remains sustainable, then the pre-existing arrangements will be reinstated. So this is going back to arrangements where the downturn has ceased. But, again, all of this is examined at the level of the business and looking at the volumes that the business is either sustaining or is projected to sustain.

PN718

All of that of course makes sense when you consider that these kinds of changes in workforce composition are ultimately decisions that need to factor in all relevant parts of business, the profit-generating parts and the costs. It simply, again for reasons I'll develop, doesn't provide a coherent mechanism to deal with these teams in isolation, particularly a maintenance team which of itself is a cost centre.

PN719

You've been taken to the other provisions in the agreement demonstrating that maintenance employees and operations employees are part of a single work group for the purposes of health and safety representation, for example, and how it's dealt with in the schedule for the general operations roster. I don't need to address you further on those. As to purpose, I think the union says at best, paragraph 31 of the Union's submissions, the submissions advanced at clause 8.13.8 is, quote:

PN720

Intended to facilitate promotions where there is sufficient business performance.

PN721

Yes, we would embrace that proposition. Our focus on business performance is telling against applying some kind of metric-based assessment to each team or work group in isolation. Turning now to the union's construction, I think I've made that point that the union's construction requires the reading in of words.

PN722

Clause 8.13.5 and 6, each of those would need to revise the term, 'labour review', to refer to a series of team-based reviews. Clause 8.13.7 would need words read into the chapeau or in every subclause, this is the relevant data, to break down each data set by team. 8.13.8 would need additional words to qualify business performance to refer to team-based performance or at least to ensure that that terms was capable of being construed in that form.

PN723

The relevant data going back to 8.13.7 would need something to demonstrate that these arise as applicable to a particular work group. Commissioner, of course you would be very slow to do that kind of surgery to a clause, particularly where the construction for which we contend requires no such surgery. It is textually and contextually coherent on its face.

PN724

Can I just turn to that point around the maintenance division being a cost centre again. Mr Jefferies gave some evidence in re-examination on that point with reference to the fact that if the maintenance division doesn't separately charge out its labour. It is not a proper generating part of the business of itself. It is a cost centre in the commonly understood sense of the term.

PN725

Of course the union's construction requires the assessment of the four metrics and the assessment of overall business performance against a part of the business that doesn't generate revenue. How one could in isolation conduct that assessment in a way which takes into account prevailing business conditions, and I use those words carefully because that's what clause 8.13.1 requires, is not at all apparent.

PN726

That conclusion is still more safely drawn, Commissioner, when one looks again at the overall architecture of clause 8.13 and the fact that these labour reviews form part of the assessment during the (indistinct) but there's also the assessment in business downturn and the circumstances where one would revert back to arrangements.

PN727

Again, the idea that you can conduct those kinds of assessments and assessments around when employees might or might not be made redundant, in isolation from how the business is actually performing financially with reference to those parts of the business that are the revenue-generating and profit-generating parts, again remains unexplained how that could simply be done. I'm going to move through a little quick here, Commissioner. Obviously my written submissions touch on the broader way of arguments being made.

PN728

THE COMMISSIONER: Yes.

PN729

MR POLLOCK: I'll just highlight a few of them. There was some suggestion in my learned friend's oral submissions and of course he deals with this in writing as well but, well, certain of these criteria are met as a matter of course and one of those was, well, you necessarily meet the roster utilisation and you necessarily meet no idle time because the agreement doesn't permit the cancellation of maintenance fulltime shifts. You see this at paragraph 26 of the Union's submissions.

PN730

Perhaps the point in answer to that submission is obvious, Commissioner, but it bears repeating. If that construction is correct, well, what possible work does a requirement for no other timely requirement for utilisation, what work do they have to do on the union's construction? If that's to be determined on a team-based level and so must be applicable to the maintenance team in isolation, what work is there for that to do? The answer of course is none at all.

PN731

If that were the intention, one would expect to see some kind of delineation in those four appointment metrics, for those four, as applicable to the particular work group. If it the case that two out of these four criteria simply never arise or they're met by default with respect to the maintenance team, one would expect to see some indication of that fact and the fact that we don't is a significant contextual factor pointing against the union's construction and not for it.

PN732

Again, my friend sought to make something of the availability of skills metric and of course we don't contend that that isn't met here but the contention, as I understood it, is, well, there will never be a situation where the skills that are available or not available in operations will be met by maintenance and vice versa, and so somehow that provides a compelling reason why you can't assess this at the whole of business level.

PN733

Again, the answer here, Commissioner, is that that skills metric is relevant only insofar as it demonstrates positive business performance. It's not an end to itself. It is just one tool by which one assesses the overall business performance and for the reasons I've articulated already you can't sensibly go about that analysis with reference to a cost centre in isolation.

PN734

Then, lastly, my friend's written submissions touch upon a range of other provisions in the agreement that he says demonstrates some division between the maintenance and operational employees and separate labour pools. He identifies a handful of them in the written submissions. I think he went to one or two of them orally today. I don't need to go through them one by one. That can be dealt with really in short order.

PN735

If that distinction that might be found in other parts of the agreement were intended here, then one would see it, and of course we don't. I think, Commissioner, I addressed you in the opening parts of the submissions around what we say on the evidence of whether these metrics are or are not met. I don't think I need to address you any further on those.

PN736

Bear with me just one moment, Commissioner, I just want to confirm my instructions on the point that we started out at before I finish off. Commissioner, my instructions are these. The arbitration question of course was agreed. It certainly wasn't a question that was imposed without consultation between parties. Having the substance of that question change during the course of closing submissions really puts me at somewhat of a forensic disadvantage.

PN737

The evidence is closed, then I can't make a clear assessment at this juncture as to, you know, what kind of evidence, what kind of different evidence might or might not have been adduced or what arguments might have been further developed. We've developed this on the basis of the question of the disagreement between the parties and, in my submission, that's the question that was referred and that's the question that ought be determined.

PN738

THE COMMISSIONER: Thank you, Mr Pollock.

PN739

MR POLLOCK: Thank you. Unless there's anything further I can assist you with, Commissioner, those are my submissions.

PN740

THE COMMISSIONER: Thank you very much. Mr Mohseni, is there anything that arose out of cross-examination that you need to address me on which you haven't already of course?

PN741

MR MOHSENI: No, Commissioner.

PN742

THE COMMISSIONER: Thank you very much. Parties, if there's nothing further, then we can adjourn this matter and you will be contacted by my chambers when I'm ready to issue the decision.

PN743

MR POLLOCK: Thank you, Commissioner.

PN744

MR MOHSENI: Thank you, Commissioner.

PN745

THE COMMISSIONER: Thank you.

ADJOURNED INDEFINITELY [1.43 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

DEAN XUEREB, AFFIRMED............................................................................... PN58

EXAMINATION-IN-CHIEF BY MR MOHSENI............................................... PN58

EXHIBIT #A1 STATEMENT OF MR XUEREB OF 11 PARAGRAPHS AND ONE ANNEXURE DATED 07/12/2021.................................................................................................. PN81

THE WITNESS WITHDREW............................................................................. PN117

DEAN XUEREB, RECALLED............................................................................ PN122

CROSS-EXAMINATION BY MR POLLOCK.................................................. PN122

THE WITNESS WITHDREW............................................................................. PN173

ADRIAN EVANS, AFFIRMED........................................................................... PN184

EXAMINATION-IN-CHIEF BY MR MOHSENI............................................. PN184

EXHIBIT #A2 WITNESS STATEMENT OF ADRIAN EVANS CONTAINING 34 PARAGRAPHS AND ONE ANNEXURE........................................................... PN198

THE WITNESS WITHDREW............................................................................. PN201

SEAN BRUCE JEFFERIES, AFFIRMED.......................................................... PN215

EXAMINATION-IN-CHIEF BY MR POLLOCK............................................. PN215

EXHIBIT #R1 WITNESS STATEMENT OF SEAN JEFFERIES COMPRISING 38 PARAGRAPHS AND ANNEXURES SJ1 AND SJ1, NOTING CLARIFICATIONS TO PARAGRAPH 19 OF STATEMENT.................................................................. PN249

CROSS-EXAMINATION BY MR MOHSENI.................................................. PN265

THE WITNESS WITHDREW............................................................................. PN449

SEAN BRUCE JEFFERIES, RECALLED......................................................... PN449

CROSS-EXAMINATION BY MR MOHSENI, CONTINUING...................... PN449

RE-EXAMINATION BY MR POLLOCK.......................................................... PN473

THE WITNESS WITHDREW............................................................................. PN480