PN1

THE ASSOCIATE: The Fair Work Commission is now in session. Matter C2022/2128, section 739, CFMMEU v Spec Services, for hearing.

PN2

THE DEPUTY PRESIDENT: Good morning. Mr Fischer, can you hear me?

PN3

MR FISCHER: Yes, thank you, Deputy President.

PN4

THE DEPUTY PRESIDENT: Thank you. Ms Spivey, good morning, can you hear me?

PN5

MS SPIVEY: Yes, I can, thank you, Deputy President.

PN6

THE DEPUTY PRESIDENT: Thank you.

PN7

Mr Fischer, I've seen an email - actually, I've got a little bit of background. Are you guys getting an echo?

PN8

MS SPIVEY: Just a little bit.

PN9

THE DEPUTY PRESIDENT: I might just ask you both just to mute your phones, just for one moment. Thanks.

PN10

So, Mr Fischer, I've just seen an email from you sent to Chambers this morning. We might start with, perhaps, the witnesses that aren't in dispute and then we can deal with the question around Mr Maxwell, unless anyone's got any objections to that course?

PN11

MR FISCHER: No, thank you, Deputy President. My colleague and I had discussed the issue of Mr Maxwell being called and, provisionally, it would seem prudent to ask for further submissions at the end of this hearing to made in writing, to give my colleague a proper chance to consider any evidence provided by Mr Maxwell.

PN12

THE DEPUTY PRESIDENT: All right. Let's see how we go and then we'll (indistinct) Mr Maxwell, once the other evidence is concluded.

PN13

All right, Mr Fischer, over to you then.

PN14

MR FISCHER: Your Honour, I've also raised that Ms Hale, as the instructor and also providing evidence, that it might be sensible for her to provide her evidence first, so that it's not tainted by observing any of the other witnesses. I don't believe that will be a particular problem in this matter, but just in case.

PN15

THE DEPUTY PRESIDENT: Ms Spivey, what's your view about that.

PN16

MS SPIVEY: As Mr Fischer suggested, we had a conversation about it this morning and we're happy to proceed on that basis.

PN17

THE DEPUTY PRESIDENT: All right. We'll proceed with your witness then. Was I on mute then? I'm not sure.

PN18

Ms Spivey, are you happy to proceed then, with Ms Hale's evidence now?

PN19

MS SPIVEY: Yes, Deputy President, we are happy to proceed on that basis.

PN20

THE DEPUTY PRESIDENT: Okay, thank you. We'll issue an affirmation and we'll get going, unless there's other preliminary matters we need to deal with?

PN21

MR FISCHER: Apologies, Deputy President, there is one more thing I should mention. Ms Rogers has been instructed by her job services provider that she is to attend an interview at 10.30 this morning. She indicates that that is likely to only be for half an hour, but, provisionally, if it's possible, would we be able to call her at 11.30 am, or later? I do apologise for this, that's outside of her control.

PN22

THE DEPUTY PRESIDENT: I'm sure we'll have enough to keep us going for the next hour and a half, won't we, otherwise?

PN23

MR FISCHER: Thank you, Deputy President.

PN24

THE DEPUTY PRESIDENT: Thank you.

PN25

THE ASSOCIATE: Ms Hale, can I confirm that you can hear and see me?

PN26

MS HALE: Yes, I can hear and see you.

PN27

THE ASSOCIATE: Can you state your full name and address?

PN28

MS HALE: Kate Emily Hale (address supplied).

<KATE EMILY HALE, AFFIRMED [10.04 AM]

EXAMINATION-IN-CHIEF BY MS SPIVEY [10.04 AM]

PN29

THE WITNESS: I'll just confirm, I do have my laptop open with my statement on here. That's all I have in front of me.

PN30

THE DEPUTY PRESIDENT: Thank you.

PN31

MS SPIVEY: Thank you, Deputy President. We would like to tender the two statements of Katie Hale. The first one is dated 29 June 2022 and the second dated 16 August 2022.

PN32

THE DEPUTY PRESIDENT: Mr Fischer, any objection?

PN33

MR FISCHER: Yes, there is only one paragraph we do object to, in terms of relevance, and that is in the second statement, paragraph 15, just on the basis of relevance. The respondent's compliance with the Labour Hire Act is not relevant in this matter. Whether they're covered by it is, but what they've provided is just a statement of whether they're complying with the Act.

PN34

THE DEPUTY PRESIDENT: Sorry, this is paragraph 15, you said, of the second statement?

PN35

MR FISCHER: Yes, your Honour.

PN36

THE DEPUTY PRESIDENT: That simply says the respondent does not have a labour hire licence, as required.

PN37

MR FISCHER: Yes. We're not asking for it to be struck, but to given low weight. It reveals only the state of mind of the respondent, it doesn't reveal anything about the legislation.

PN38

THE DEPUTY PRESIDENT: All right. It can stay in and you can make whatever submissions you want, as to weight.

*** KATE EMILY HALE XN MS SPIVEY

PN39

MR FISCHER: Thank you, your Honour.

PN40

THE DEPUTY PRESIDENT: Okay. So I'll mark the first statement of Ms Hale as exhibit 1 and the second statement exhibit 2.

EXHIBIT #1 STATEMENT OF KATE HALE DATED 29/07/2022

EXHIBIT #2 STATEMENT OF KATE HALE DATED 16/08/2022

PN41

MS SPIVEY: I don't have any further questions for Ms Hale.

PN42

THE DEPUTY PRESIDENT: Thank you. Mr Fischer?

CROSS-EXAMINATION BY MR FISCHER [10.06 AM]

PN43

MR FISCHER: Yes, thank you, Deputy President.

PN44

Ms Hale, can you hear and see me clearly?‑‑‑Yes, I can.

PN45

Thank you for your statements, for starters, they're very informative about the kind of work that your company does. I note, particularly, in the first statement, at page 362 of the court book, on 29 June you list, at paragraph 10, a range of services that are provided by Spec, are those accurate?‑‑‑Yes, they are. I'm sorry - sorry, I'm on the supplementary statement. Yes, correct. Among others, yes.

PN46

Thank you. In addition, at 7(a) of your second statement you provide a bit more detail and break it into two categories. Are you able to flick to that?‑‑‑Just one second. Yes.

PN47

Thank you. All right, at 7(a) you note that:

PN48

Cleaning of site sheds and facilities includes the cleaning of lunch rooms, toilet facilities and site administrative offices. The purpose of the cleaning is to ensure that those facilities remain in an appropriate condition for the use of individuals while on site.

PN49

Can you tell me who the individuals are?‑‑‑They are anybody who is working on said site.

*** KATE EMILY HALE XXN MR FISCHER

PN50

Do tradespeople work on these sites?‑‑‑Yes, they do.

PN51

Do the individuals then include tradespeople?‑‑‑Yes, they do.

PN52

What would occur on a site if amenities were not fit for use?‑‑‑I would hazard a guess that yourself and the union would have a big problem with it, but also there'd probably be some legislative downfalls, I guess, yes, the site would not be able to operate.

PN53

Although I guess it's technically a submission, I can confirm that the CFMMEU would have a problem with it, yes. But perhaps, more importantly, is it possible that WorkSafe ACT, or another jurisdictions WorkSafe, might have an issue with that?‑‑‑Yes, it's possible.

PN54

Are you aware that WorkSafe can make orders requiring a site to cease work?‑‑‑Yes.

PN55

So would you agree, in those circumstances, that the provision of clean amenities is reasonably necessary for work on the site to continue?‑‑‑Yes.

PN56

Okay. Would you agree that the provision of clean amenities is reasonably necessary for tradesmen to perform their work on site?‑‑‑Yes.

PN57

So in that case, would you agree that this work assists tradespeople?‑‑‑In a very - yes, in a very roundabout way, I guess you could say that.

PN58

Are you aware of what a traffic controller does, on a construction site?‑‑‑Yes.

PN59

So for the benefit of the transcription, they provide routing services for vehicles moving through a construction site, they tell them to stop and go. Would you say that their work similarly assists tradespeople?‑‑‑Yes, it would be an assistance, I guess, to particular trades.

PN60

And you're aware that they're classified as builder's labourers, under the relevant award?‑‑‑I'm not aware what traffic controller is classified as.

PN61

Fair enough. In terms of the next line of questioning, might I take you to page 22 of the court book, which is Attachment 1 of the CFMMEU's submissions?‑‑‑Sorry, I'll just - - -

*** KATE EMILY HALE XXN MR FISCHER

PN62

No hurry. Like I said, my star witness is indisposed, so the longer I can jam up the better?‑‑‑That's fine.

PN63

THE DEPUTY PRESIDENT: Sorry, Mr Fischer, can you just clarify which document it is. We're having some access with Wi-Fi at the moment, so the court book is currently unavailable.

PN64

MR FISCHER: Absolutely.

PN65

THE DEPUTY PRESIDENT: I'm working in an old school fashion.

PN66

MR FISCHER: No worries. It's the page of the website titled, 'Industrial and construction cleaning' that we downloaded in, I think, June and passed through as part of our first bundle of evidence.

PN67

THE DEPUTY PRESIDENT: Yes.

PN68

THE WITNESS: 'Industrial and construction cleaning'?

PN69

MR FISCHER: Yes?‑‑‑Yes, I have it in front of me.

PN70

Thank you very much. Do you agree that this is a web page that currently appears on your company's website?‑‑‑Yes, I do.

PN71

Can you describe what the two men in the photo are doing?‑‑‑They are cleaning some windows, with a washer.

PN72

Where are they, on the site?‑‑‑On scaffolding.

PN73

Do you know which stage of the construction this photo was taken?‑‑‑Yes, it was prior to the scaffold being removed, so that the building could be handed over.

PN74

Are you aware that scaffolding is a trade?‑‑‑Yes.

PN75

In that regard, may I take you to your statement, 29 June, which is page 362 of the court book, but I believe the - - -?‑‑‑Yes, I have my statement in front of me, yes.

*** KATE EMILY HALE XXN MR FISCHER

PN76

You've got it, cool?‑‑‑Yes.

PN77

Apologies, I don't - are you able to point out to me, in paragraph 10, where this kind of work is described?‑‑‑This would be part of the fit-out final clean.

PN78

Okay. Although the scaffolding is still present?‑‑‑That's correct. It is purely there for access purposes, for us.

PN79

May I take you to paragraph 8 of your statement of 16 August?‑‑‑Yes.

PN80

So in that paragraph you say:

PN81

Fit-out cleaning requires the respondent's employees to undertake what is essentially a surface clean of the whole or part of a fit out of a building and construction project, for the purposes of facilitating handover, either between tradespeople as they transition between phases of the fit-out for the project, or on completion of the project.

PN82

Is that fair to say?‑‑‑Yes.

PN83

Who assesses and signs off on the work that your employees perform?‑‑‑Our contract administrator.

PN84

Is that an employee of Spec Services, or is that an employee of the builder?‑‑‑It's an - so we do our own internal quality checks, but to be paid we need to be signed off by the contract administrator, who is the person who we have created the contract with.

PN85

Certainly. On what do they rely to make that assessment?‑‑‑Visual inspection.

PN86

Okay. Where it's facilitating handover between tradespeople, such as in this case where the scaffolding hasn't yet been removed, do the tradespeople themselves have any interaction with the assessment process?‑‑‑No, not at all.

*** KATE EMILY HALE XXN MR FISCHER

PN87

So if tradespeople receive a location and it's not in a fit state for them to perform work, what occurs in that case?‑‑‑I'm not entirely sure what you mean. That's not really a situation that occurs because we don't do preparation. So trades don't come after us, really. I understand that you're referring to this situation where, perhaps, the scaffolders could not remove the scaffolding if the windows had not been completed, is that what we're referring to?

PN88

Yes?‑‑‑Yes.

PN89

But this is just an example. At paragraph 8 you specifically note that:

PN90

The fit-out may occur, facilitating handover between tradespeople as they transition between phases of the fit-out for the project.

PN91

?‑‑‑Yes.

PN92

So, presumably, there are tradespeople finishing work, your workers coming in, and then tradespeople performing work afterwards, is that right?‑‑‑Not necessarily. I understand that the wording makes it sound like that and there might be commissioning that's done afterwards, by electricians, but that really has nothing to do with whether we've completed our works or not.

PN93

Okay. Can you explain that a little more? What are the phases of the fit-out, as you understand them?‑‑‑There's - sometimes there might be an initial cleaning and a final clean but, basically, the main kind of, I guess, how can I say this? The main reason we're there is to clean up for handover. So, yes, there may be a couple of things that happen after our works are completed, like I said like commissioning for electricians or comms people, stuff like that but, in general terms, most of the work is completed and the tradespeople have vacated the premises, except for the last couple of trades, who are hanging around but generally they are scheduled not to be there.

PN94

Okay, thank you. If the work that your employees do is not completed, can work on the site continue?‑‑‑Yes. I mean the cleaning is not a practical completion item, so it doesn't old up like the handover of a building, or anything like that. I guess trades need to continue defecting or whatever they need to do, our works don't mean that they can't do that.

PN95

So, based on your evidence around the fit-out clean, these services are not reasonably necessary for tradesmen to perform their work on site?‑‑‑No.

PN96

Okay. Fair enough. May I take you to page 25 of the court book, which is the second attachment that we provided, a website page called, 'Managed workforce'?‑‑‑Yes.

*** KATE EMILY HALE XXN MR FISCHER

PN97

Okay. Same question as before, do you agree that this is a web page appearing on your company's website?‑‑‑Yes, I do.

PN98

Can you tell me what's involved in a site shed pack down?‑‑‑That would be the final clean of the site shed, so before the site wraps out, like the site facilities that we refer to as site sheds, you know what I'm talking about, they need to be thoroughly cleaned, so that they can be taken back to the shed hiring company, or whoever has hired them out to the construction company.

PN99

Yes. In terms of the pack down, that obviously involves cleaning of surfaces, yes?‑‑‑Yes.

PN100

Does it also - - -?‑‑‑Walls and anything else that's in there, yes.

PN101

Fantastic?‑‑‑Ridges (indistinct).

PN102

In site sheds, if there are tables, trestle tables or permanent tables, does this service involve storing those, packing them away?‑‑‑No, it involves cleaning them only.

PN103

So it doesn't involve any packing?‑‑‑No. I understand that that wording completely sounds like it involves literally packing down a shed but, no, part of the shed pack down process is the deep clean.

PN104

I see. The terminology, 'Site shed pack downs', in the construction industry, would normally involve, essentially, a complete gutting of the inside of a site shed to allow it to be moved. They're normally temporary structures, your Honour. It would normally involve removing tables, it would normally involve removing counters, electrical devices and storing them elsewhere, but your evidence, Ms Hale, is that this is not the service that Spec provides?‑‑‑Correct.

PN105

Has there ever been any confusion, with your clients, about the limits of this service?‑‑‑No.

*** KATE EMILY HALE XXN MR FISCHER

PN106

Okay. Can you tell me what is involved in the relocation of tools or furniture on site?‑‑‑That one's pretty self-explanatory, I would say. Yes, it's exactly that, would be if we need to move furniture to clean an area, which as we would in - so particularly floors, if you need to clean a floor and the furniture has already been installed in that area, we will relocate the furniture to one side of the room so that we have access to the floor, and move it back again. Similarly, if there are any other tradesmen's tools in the way that need to be moved from one side of a room to another, that will also be done.

PN107

So the evidence here is that this refers specifically to moving objects out of the way of cleaning services. Okay. Why is that listed on this page, rather than the industrial cleaning services page?‑‑‑I didn't actually write the website, so I can't attest to the quality of where everything's been put. Look, I will also mention that should any of this occur - I know what you're trying to get at, I know you're trying to say that we're doing items that are under a CWs scope of work. I understand that. But we also have people in our company who are not cleaners and should any of these, like be performed on a construction site, which we might like to and we're advertising to do it, right, but currently, at this moment, we don't actually perform any of these tasks. If we were to perform these tasks, we have several different departments in our business where people are employed under different awards and have different job descriptions. But really what we're talking about here are what do our cleaners do, the people who are covered by the Cleaning Award, and I completely understand that there are items here that your pointing out do not come under the Cleaning Award, I have no dispute against that whatsoever. But my answer to that is that our cleaners do not do this, regardless of what the description is.

PN108

Okay. Now, Ms Hale, the question for this jurisdictional hearing is, in fact, is Spec Services an employer covered by the Building and Construction (General Onsite) Award. So one of the reasons why our list of witnesses is somewhat shorter than potentially it could be is that we're just dealing with whether Spec Services operates in the building and construction industry, not whether any particular worker does. So, just by way of explanation.

PN109

Given that, you mention that there are other individuals who work for Spec Services who are not cleaners and may be performing other tasks. Do any of those tasks take place on construction sites?‑‑‑No, they take place in commercial settings, on forensic decontamination sites, they are outside of work on construction sites. There are works - sorry, I will rephrase. Sometimes these people are brought onto the construction site because an issue may occur there that we need to deal with so particularly, in our biohazard and forensic department, so there might be a mould incursion or a sewerage leak or anything like that, that we are called in to attend and that's why a lot of our employees have those asbestos and white cards, because they do attend works on construction sites. But these people are not covered by the Building and Construction Award either, their core work is not in the building and construction industry, it is just that we happen to have these incidents occur on building and construction sites, so we will come in and attend to those.

PN110

In terms of those hazardous materials workers, do they deal with asbestos?‑‑‑No, absolutely not. They're not like for asbestos removal.

*** KATE EMILY HALE XXN MR FISCHER

PN111

But the hazardous materials that they do deal with, biohazards and a range of other industrial chemicals or other forms of hazardous chemicals?‑‑‑Yes. So sewerage, bodily fluids when we have accidents on site, mould incursion. And we're expanding our department, but that's what we do at the moment.

PN112

In terms of sewerage and biological waste, do they deal with burst pipes?‑‑‑Yes, they do. On many - not just construction sites but completed buildings as well.

PN113

Absolutely. Can you explain to me how they would deal with a leakage of a burst pipe that was releasing hazardous materials?‑‑‑The first instance would be that the plumbers would be called, by whoever has discovered this leak or breakage, whatever, which would not be us. So whoever is in charge of that would organise plumbers to come and fix it, because we can't do anything until the plumbers have attended, or whatever disaster has occurred. It's not always a plumber, it could be any other tradesperson in any other situation, but once it's been rectified we will come and attend to the mess that's left over.

PN114

Does the work involve cleaning the area around the pipe as well as the pipe itself?‑‑‑Yes.

PN115

Are you aware that maintenance of pipes, including damaged pipes, falls under the Plumbing Award?‑‑‑I am not, but, look, I really would think that that's clutching at straws to be stating that we're maintaining a pipe. I think this is a very clear delineation between something that's happened that a plumber needed to fix and that pipe was in the way of it got messy in that instance. We were literally just cleaning it.

PN116

I'll return to my original line of questioning then. In regards to landscaping labour, now, bearing in mind that you've already mentioned that you don't believe you currently have employees performing any of the tasks on this list, does that also apply to landscaping labour?‑‑‑So landscaping labour is probably incorrect terminology. We have people who perform gardening duties, so garden maintenance on plenty of our strata and maintenance sites, we have people to attend to gardening duties, but no landscaping labour, as such. If we're referring to landscaping as retaining walls and actually construction of garden beds or anything like that, no. Gardening duties would be a better terminology there.

PN117

Gardens. So in regards to your statement, paragraph 11 of your second statement, which is at page 370 of the court book?‑‑‑Which statement was that, sorry?

PN118

The second statement you provided, the one of 16 August?‑‑‑Yes.

*** KATE EMILY HALE XXN MR FISCHER

PN119

So in relation to these garden duties, you note that:

PN120

The respondent does not supply labour on an on hire basis, either in the onsite building, engineering, construction industry, or otherwise.

PN121

And 'or otherwise' here is obviously doing quite a bit of heavy lifting. Would you say it would include strata and existing buildings?‑‑‑So these are all part of our contracts. So it's not an hourly labour situation, these are part of our strata contracts.

PN122

Certainly. Who directs the labour?‑‑‑Our area manager.

PN123

So the area manager goes to each individual strata building and points out where needs to be trimmed?‑‑‑No. They would be instructed on what needs to be achieved and the people who perform the gardening duties are experienced gardeners, so they know what to do.

PN124

Okay. And the clients, what opportunities do they have to direct these workers?‑‑‑Very little. If the building manager happened to be on site when they attended, they might go and have a conversation with them and, I don't know, point out a particular branch they might want trimmed, but that would just be incidental to the main works that were being carried out there.

PN125

Certainly. My apologies. In regards to your statement, at paragraph 19, your second statement I should say?‑‑‑Yes. No, that's okay, I've got it.

PN126

The last couple of sentences on that paragraph is saying, 'However, on occasion there are circumstances where a client will, for expediency, approach an employee to discuss aspects of the services being provided including any minor issues with those services. In those cases, employees are expected to assist the client where they're able and comply with any reasonable requests made of them.' Is that accurate?‑‑‑Yes, it is.

PN127

And that's accurate across the cleaning business as well as the managed work force services offered?‑‑‑Yes.

PN128

Is there a general direction to your workers to comply with any reasonable requests made by those clients?‑‑‑Under a customer service banner – yes, there would be.

*** KATE EMILY HALE XXN MR FISCHER

PN129

Okay?‑‑‑But, you know, when we attend the site we have a scope of works. We know what we're there to do. The fact that somebody from the principal contractor or the client might be there and might have a conversation with that team does not constitute a labour hire arrangement. This is the reasons - - -

PN130

On what basis?‑‑‑Because we have been asked to perform a job. We are quoted for works which have been listed in a scope or however the direction has been given that those works are to be performed and I think it's completely unreasonable to believe that a person who is there in the vicinity would not come over and have a look at what you're doing and speak to the team. Not in any – you know – authoritative way to direct them in the scope of their works but in reality that's what happens. There's a supervisor on that job and if that person wants to speak to the supervisor and the team is then directed and it fits within our scope of works that's just customer service. That is not a labour hire arrangement. The labour hire arrangement is where you are given – you know – you're handing out bodies, basically, and those bodies are then under the control of the client to do with that as they wish.

PN131

Okay?‑‑‑We provide not only a service but we provide the equipment to do it. We provide management and instructions from our head office. We provide support, whether remote or on site. We do not send individual people to be under the direct control of a principal contractor or client.

PN132

Okay. Thanks for clarifying. You are the employer of – sorry, Spec Services is the employer of these workers. Yes?‑‑‑Yes, that's right.

PN133

And as the employer you have issued them the direction to assist the client where the request is any reasonable request made of them. Is that correct?‑‑‑Yes.

PN134

So who determines what is reasonable?‑‑‑Yes, I guess the - - -

PN135

THE DEPUTY PRESIDENT: Sorry to interrupt. Mr Fisher, I'm actually not following what I need to know this in the context of the question I need to answer.

PN136

MR FISCHER: I apologise your Honour. What I am attempting to assess is that if the employer is providing workers with a direction that they comply with the directions of a client in what way that differs from a labour hire arrangement.

PN137

THE DEPUTY PRESIDENT: Why is that necessary about award coverage?

*** KATE EMILY HALE XXN MR FISCHER

PN138

MR FISCHER: Because the award includes at 4.5 a stipulation that people providing labour hire to employers in the building industry are themselves covered by the Award.

PN139

THE DEPUTY PRESIDENT: Well, what relevant parts of paragraph 19 that you just referred to that discuss aspects of the services being provided, including any minor issues with those services. That's it.

PN140

MR FISCHER: But the evidence of Ms Hale, your Honour, is that in those cases employees are expected to assist the client where they're able and to comply with any reasonable requests made of them and they have confirmed that that is a stipulation provided to their workers.

PN141

THE DEPUTY PRESIDENT: Yes. In the context of discussing services or minor issues with the services.

PN142

MR FISCHER: With respect, your Honour, that wasn't the evidence that we just heard from Ms Hale. The evidence - - -

PN143

THE DEPUTY PRESIDENT: Well, perhaps we can clarify that because my understanding is she was giving that evidence in that context.

PN144

MR FISCHER: Certainly, your Honour. Ms Hale. Are the reasonable requests that workers are required to comply with only in the context of minor issues with those services?‑‑‑Yes. And as I said before it was – it's under the banner of customer service. So it's being polite and courteous to our clients and attending to minor issues that may arise right there in the immediate moment. Any further direction is always done through our management team. If a client has an issue or a large – you know – they're diverging from the original direction they are not permitted to instruct our staff to do that. And in many times that's when a phone call to the manager would be made and we would be speaking with the client directly to enquire the direction had changed.

PN145

And is that noted in the direction to the workers? Is that included in the employment description or in any of the documentation to the workers?‑‑‑Included in our inductions. In our employment inductions, yes.

PN146

Are you able to provide evidence of what's in those employment inductions?‑‑‑As a supplementary submission we can do that.

*** KATE EMILY HALE XXN MR FISCHER

PN147

Certainly. Okay. In terms of your statement at paragraph 23 at page 372 of the court book or, I believe, the third page of your second statement?‑‑‑Yes.

PN148

You note that the construction cleaners were eligible for the Job Keeper while the commercial cleaners were not?‑‑‑Yes. So that was only in the context that the construction sites closed down and the construction cleaning team therefore did not have work so they were eligible to receive subsidies – government subsidies. However, our commercial departments being strata and commercial offices continued. So they had work and they were not eligible for the government subsidies. So when we needed to attract people back to work we were attracting people back off government subsidies.

PN149

Okay. So the eligibility provisions for Job Keeper at that time were based around individual businesses that were expecting a downturn of more than 30 per cent. Does your evidence indicate that the construction cleaning business is a separate business that was expecting a downturn of 30 per cent at that time?‑‑‑It wasn't actually Job Keeper. It was the COVID – I don't know even know what the name of the subsidy was, sorry. We were using Job Keeper in a very broad terminology there but it was – if you'd lost 20 hours or more per week of work you were eligible for $750 government subsidy. So actually at this time I don't even think Job Keeper was still on. I do apologise for that for using the term Job Keeper but it was what we were referring to was the broad terminology of the government subsidies that we'd given out.

PN150

All right. So for clarity then the same actual entity K M Hale Proprietary Limited is the employer of both construction and commercial cleaners?‑‑‑Correct. Yes.

PN151

Okay. That concludes that line of questioning I think. Thank you, your Honour. I have no further questions from Ms Hale.

PN152

THE DEPUTY PRESIDENT: Thank you. Any re-examination?

PN153

MS SPIVEY: No, Deputy President.

PN154

THE DEPUTY PRESIDENT: All right. Thank you, Ms Hale. That concludes your evidence?‑‑‑Thank you.

<THE WITNESS WITHDREW [10.38 AM]

PN155

THE DEPUTY PRESIDENT: That actually concludes all of your evidence then doesn't it, Ms Spivey?

*** KATE EMILY HALE XXN MR FISCHER

PN156

MS SPIVEY: Yes, it does, Deputy President.

PN157

THE DEPUTY PRESIDENT: Okay. Mr Fischer, so it was Ms Rogers who wasn't available?

PN158

MR FISCHER: Until 11.30. But Mr Miller is your Honour.

PN159

THE DEPUTY PRESIDENT: Okay. To dial in that was - - -

PN160

MR FISCHER: Certainly. I will just put everyone on mute and contact him. Thank you. Apologies, Deputy President. Mr Miller is returning to the site office at his site and he reports that it will be somewhere between eight and 10 minutes walk. But he does have his statement available there and will be available for a call at that point. I apologise for the delay.

PN161

THE DEPUTY PRESIDENT: That's okay. We might take a 10-minute break and resume at 10.50 then. Thank you.

PN162

MR FISCHER: Thank you, Deputy President.

SHORT ADJOURNMENT [10.41 AM]

RESUMED [10.52 AM]

PN163

THE DEPUTY PRESIDENT: Mr Fischer, are you ready to resume?

PN164

MR FISCHER: Yes. Apologies. I'm just waiting on an SMS from Mr Miller to notify when he's in position. I might just call him again quickly. Apologies, he indicates there was an area of the site he's had to go around because it's – procedures are in progress – so he's still five minutes away from the shed but he will send me an SMS as soon as he can. I apologise for the delay.

PN165

THE DEPUTY PRESIDENT: That's okay. Well, we might just resume at 11 o'clock then to give him time to get there.

PN166

MR FISCHER: Certainly. Thank you, your Honour.

SHORT ADJOURNMENT [10.54 AM]

RESUMED [11.02 AM]

PN167

THE ASSOCIATE: Mr Miller?

PN168

MR MILLER: Hi, Dusty here or Mr Miller or Ken Miller whichever you want to call me. How are you this morning?

PN169

THE ASSOCIATE: I'm good, thank you.

PN170

MR MILLER: Can you hear my voice okay? Can you hear me okay?

PN171

THE ASSOCIATE: Yes, I can.

PN172

MR MILLER: Very good. Thank you.

PN173

THE ASSOCIATE: You are being called to give evidence in these proceedings. Please state your full name and address.

PN174

MR MILLER: My name is Kenneth Charles Miller (address supplied).

<KENNETH CHARLES MILLER, AFFIRMED [11.02 AM]

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

PN175

THE WITNESS: I do. Because I am in my office at a separate site here of Multiplex Hospital extension project.

PN176

THE ASSOCIATE: Thank you.

PN177

THE DEPUTY PRESIDENT: Thank you, Mr Fischer.

PN178

MR FISCHER: Mr Miller, do you have a statement in front of you?‑‑‑Yes. I do. I do have a statement available to refer to if I need to.

PN179

Thank you. And is it titled 'Witness statement of Kenneth Charles Miller'?‑‑‑It sure is. It's Construction – the CFMEU and Kim Hale trading as Spec Services witness statement of Kenneth Charles Miller, commonly known as Dusty.'

*** KENNETH CHARLES MILLER XN MR FISCHER

PN180

And if you flip to the third page, can you tell me - - -?‑‑‑(Indistinct reply)

PN181

Yes. Can you tell me whether it's signed and on what date it's signed?‑‑‑Yes. It's signed and it's dated 28/7/2022.

PN182

Thanks, mate. Your Honour, we wish to tender this statement as evidence.

PN183

THE DEPUTY PRESIDENT: Any objections to the tender of that statement?

PN184

MS SPIVEY: No, Deputy President.

PN185

THE DEPUTY PRESIDENT: Okay, thank you. I'll mark that Exhibit 3.

EXHIBIT #3 WITNESS STATEMENT OF KENNETH CHARLES MILLER DATED 28/07/2022

PN186

MR FISCHER: I have no further questions, your Honour.

PN187

THE DEPUTY PRESIDENT: Thank you. Are there any cross-examination?

PN188

MS SPIVEY: Yes, Deputy President.

CROSS-EXAMINATION BY MS SPIVEY [11.04 AM]

PN189

MS SPIVEY: Mr Miller, I think you just said that you have a copy of your statement in front of you?‑‑‑I do.

PN190

Thank you. I just have a few questions in relation to that statement?‑‑‑Sure.

PN191

So my first question is in relation to paragraph five of your statement which is at page 330 of the court book?‑‑‑Paragraph - - -

PN192

And you talk about when you were employed as a 'nipper' early in your career. So approximately when would that have been?‑‑‑That was in about 1978-79.

*** KENNETH CHARLES MILLER XXN MS SPIVEY

PN193

Okay?‑‑‑On that job I worked another site before that one but with reference to the Law Court site with K B Hutchison. I worked on that site prior to 1980 – it was probably the late 70s. I worked from the start to the finish on that project. When I finished on that project I went to work as a union organiser.

PN194

So in those circumstances was the Federal Law Courts project the only time that you worked as a 'nipper'?‑‑‑Yes. On that site but I knew of other nippers before. But I worked – I was a construction worker but when I went on that job they appointed me as the nipper. I used to go collect the lunches and clean the toilets and so forth.

PN195

Okay. Now on that - - -?‑‑‑But I was aware of other people that did that job on other sites before I got there.

PN196

Okay. So what were you doing on those other sites?‑‑‑Other sites I worked on – I was general – other sites besides that one. I was basically a builder's labourer.

PN197

Okay?‑‑‑Doing a range of jobs, including drilling and blasting. Including some concrete, including driving some machines – just general construction worker as they call them now. Them days we were called builders labourers.

PN198

Right. Okay. So let me ask you this then. You seem to be making a distinction between what you were doing on the sites prior and possibly after you were on the Federal Court site for KB Hutchinson?‑‑‑Mm.

PN199

In your statement, again at paragraph five you have referred to performing a number of general duties while you worked as a nipper, such as cleaning toilets - - -?‑‑‑Yes. I did actually. Yes. Like I didn't take all day to clean the facilities - - -

PN200

And that's my question - - -?‑‑‑And so when I had nothing else to do - - -

PN201

Yes?‑‑‑- - -well, I'm answering the question. Okay?

PN202

Okay?‑‑‑But if you read my statement as here the general duties mopping and cleaning the toilets, cleaning and prepare the lunches before lunch and smoko - - -

PN203

Yes?‑‑‑- - - was part of my duties and I also run up the shops but that didn't take the full shift. So at other times I might be sweeping inside the building or assisting other labourers doing jobs. Like, painting and water proofing on the bottom of the site or sweeping up inside or helping to unload trucks by hand. And those days most of our unloading was done by hand, including cement bags and everything else.

*** KENNETH CHARLES MILLER XXN MS SPIVEY

PN204

Okay. So why do you - - -?‑‑‑That was my role there as the 'peggy' or the 'chipper'.

PN205

Sorry, what you're saying because I just need to make this really clear is that your duties on the site when you were a 'nipper' extended beyond sort of the general duties that you had referred to in your statement - - -?‑‑‑Only if I had nothing else to do. If I had nothing else to do. My major role at that time was to make sure that the facilities were clean, including the manager's office, toilets and lunch rooms. And I had to make sure that I had all the lunches collected.

PN206

Yes?‑‑‑I used to go up the shops and get the lunch orders and stuff like that. That was my major role.

PN207

Okay?‑‑‑And then I had nothing else I'd be a general assistant.

PN208

All right. But if you did have time what you're saying is that you would, effectively, be assisting the trades people on sites do various tasks?‑‑‑Just go helping someone else.

PN209

Sorry?‑‑‑You'd just go help someone else rather than – just go and help on the site rather than stand there doing nothing. Yes.

PN210

THE DEPUTY PRESIDENT: Sorry, Mr Miller. Mr Miller, it's Deputy President Dean. Can I just ask that – there's always one person - - -?‑‑‑Sure.

PN211

- - -talking at one time so that we can actually get the transcript?‑‑‑Sure.

PN212

Accurate. Thanks?‑‑‑Sure.

PN213

MS SPIVEY: Okay. At paragraph nine of your statement, which is page 330 again of the court book?‑‑‑Yes.

PN214

You said that 'nippers' tended to be people who were new to the industry or where older people?‑‑‑Yes.

PN215

So did people who were, at that time, and I appreciate that we're talking sort of pre-1980 here and possibly a little bit after?‑‑‑Sure. Sure.

*** KENNETH CHARLES MILLER XXN MS SPIVEY

PN216

Did people who were new to the - - -?‑‑‑Well, even after - - -

PN217

- - -industry generally start as a nipper or what is now the - - -?‑‑‑No.

PN218

- - - CW1 level and then move up through that classification? Sort of into higher classifications? Is that how the system worked?‑‑‑It varied.

PN219

Okay. So can you give me examples of how that might have worked please?‑‑‑Well, sometimes there were people and this is after – when I'd become an organiser I travelled to all the sites around ACT and southern New South Wales for the major construction industry. Sometimes they were just kids that just left school but didn't have much skill – they were put on as a nipper to clean up first. Like do the toilets, lunches et cetera and other times they were people that had been in for a long time and close to retirement that were lighter duties to do the cleaning rather than do heavy duty work. Of course they were close to retirement. So there was two types. There was younger people just starting in industry and there were guys that spent the whole life working and were given lighter duties, including being the nipper.

PN220

Okay?‑‑‑And they were employed and they were paid the site allowance.

PN221

So, essentially, what you're saying then is there were sort of two ends of the spectrum there. You had those who were sort of new to the industry and then there were some old hands who were sort of – for lack of a better description 'exiting the industry'?‑‑‑Yes, they were like - - -

PN222

And sort of winding down their construction careers?‑‑‑Yes. Like I am now.

PN223

Okay?‑‑‑I'm the site delegate now and they think I'm 85 the way they treat me here.

PN224

That's unfortunate?‑‑‑I've got a good job. I'm not complaining about the job I've got but when I'm trying to help they say – 'Oh, no. You get back over there. You'd be right.' You know. So I don't mind. I get treated well here at this site.

*** KENNETH CHARLES MILLER XXN MS SPIVEY

PN225

So based on that then would you say that the role of – and your experience – not just in, as a nipper, but in the industry, generally, would you say that the nipper role encompasses a very broad range of duties in connection with the building and construction industry?‑‑‑Well, if you were called the 'nipper' your first job was – sorry – if you were the nipper or 'peggy' as they call it in other States, your first role was to do that job.

PN226

Yes?‑‑‑And then if you had time on your hand you might do some general cleaning around the site.

PN227

Right. That general cleaning around the site would that also include the removal of say, for example, sort of broken bricks or broken part work or the removal of tools or things of that sort of description?‑‑‑Could be general cleaning around the site, yes. Could be sweeping. Could be picking up some rubbish, emptying bins, stuff like that.

PN228

Okay?‑‑‑Not driving machinery or anything like that.

PN229

Would you use machinery at times while you were performing that role?‑‑‑No. I just said that. It wouldn't include that type of work.

PN230

No, I think you said driving machinery. But I am just asking about machinery generally?‑‑‑No. Normally, if you were the nipper you would just help clean up.

PN231

Did it involve the use of any tools?‑‑‑Brooms and shovels, wheel barrow, cleaning up.

PN232

Okay?‑‑‑Because once you do, once you start operating machines it goes up the higher pay grade.

PN233

Sorry. Could you just repeat that, please? I just missed what you said at the beginning?‑‑‑If you operate hoists or if you operate machines or hoists or whatever it goes to a higher pay grade.

PN234

So then how did a nipper get the experience necessary in order to move to a higher pay grade?‑‑‑Well, then they moved to a different job - - -

PN235

MR FISCHER: Your Honour – relevance?

PN236

THE WITNESS: I don't know where that's coming from. Where that question is coming from. I explained when I did when I was working as a nipper.

*** KENNETH CHARLES MILLER XXN MS SPIVEY

PN237

MR FISCHER: Your Honour, I have an objection on the basis of relevance of this line of questioning.

PN238

THE DEPUTY PRESIDENT: Ms Spivey?

PN239

MS SPIVEY: Well, the question goes to the very nature of the nipper role, whether it was a development – it's somewhat unclear how – this is meant to be and I am talking in the context of entry level positions here. How one moves through the chain and is gaining experience. They've talked very broadly about sort of general cleaning duties and what-not. What I am trying to ascertain here is whether or not there was anything beyond those general cleaning duties.

PN240

THE DEPUTY PRESIDENT: Right. I'll allow it, thank you. Mr Miller if you can answer the question. If you need Ms Spivey to repeat it please let her know.

PN241

THE WITNESS: Beyond that role I guess I'd say if you apply for other positions or you would get upgraded to other jobs. I mean that's not part of my statement.

PN242

MS SPIVEY: No. I'm just asking you generally Mr Miller. I am just trying to understand, as I said, how you go from being a nipper to moving from that entry level position - - - ?‑‑‑Like I've said - - -

PN243

- - - up the chain?‑‑‑- - -you might be a nipper – and sorry to talk over the top. I apologise. Okay. You might end up being at the end of your career like me at the moment doing another type of work which is easier. Or you might be just starting your career, you know, just spending a bit of time on site you might get promoted to other work or trained into other work. But that's only a general observation from me and it wasn't part of my statement.

PN244

But whether or not it's part of your statement I am just asking you about your general experience, about how people basically learn and develop in their construction roles, given that this is not only for the – you know – what you're saying is there are sort of two. This job more often than not related to people who were at two ends of the spectrum. The entry level and then back sort of towards - - -?‑‑‑Correct.

PN245

- - - the end of your career?‑‑‑Yes.

*** KENNETH CHARLES MILLER XXN MS SPIVEY

PN246

So, essentially, what I am asking is how do you get from being a nipper into the next sort of classification – whatever that may be without generally being exposed to the types of things that you need to be exposed to for people to have confidence that you can safely do those jobs - - -?‑‑‑Well, again, it's only – it's only opinion because I'm only a mere construction worker. But how people move up is they spend a bit of time at work and get recognised as a person that's going to stay there and maybe get offered other roles by the management and some training.

PN247

Okay. Because that training - - -?‑‑‑(Indistinct reply)

PN248

So say, for example, you had a situation where you had someone who was identified as someone that they wanted to retain who was originally a nipper?‑‑‑Mm - - -

PN249

And - - -?‑‑‑Yes, well, like I said - - -

PN250

- - - they need to be trained - - -?‑‑‑- - - basically - - -

PN251

- - - to move up to the next level?‑‑‑(indistinct) they would offer you some training. The company might offer you some training to move up.

PN252

Yes, but - - -?‑‑‑You might express a desire to the company you want to move up.

PN253

Yes?‑‑‑There's various ways that people progress in all careers.

PN254

Yes. I understand that but what I am asking you is, or what I was intending to ask you was does that training begin before you move up to the next level? So whilst you're being a nipper you're also exposed to other skills and experiences in connection with the building and construction industry - - -?‑‑‑Yes.

PN255

- - - which means that you're not necessarily just doing the cleaning duties, you're also learning the skills that you need in order to be recognised and to move on in your career?‑‑‑I'm only going to answer this once, it might vary from case to case and job to job. In my case I was a labourer, I did other jobs before I come to that site. I spent most of my time on that site being a cleaner and a nipper. I also then become a union delegate while I was there. Then later on after that I progressed to becoming a union organiser, and I did that for 39 years afterwards.

*** KENNETH CHARLES MILLER XXN MS SPIVEY

PN256

Sure, and Mr Miller, that's why I'm asking you the question. I'm not necessarily just asking you about your experience, but obviously you have a lot of experience in the industry and you've seen, as I will come to in a second, things have changed. I'm asking about your experience and your knowledge generally here, not just in respect of you?‑‑‑Okay, well I only made a statement in respect to the questions I was asked to report. To answer your question, it varies from site to site and individual to individual. They get offered further opportunities or training becomes available.

PN257

All right, okay, and I'll take that as your evidence, but I was just interested in knowing what your experience was and I've provided you with the context for that?‑‑‑Thank you very much. Thank you.

PN258

On a sort of similar note, at paragraph 14 of your statement, which is at page 331 of the court book?‑‑‑Yes.

PN259

You say that you can't complete a job without cleaning being done and it's part of the industry, yet you've also said in paragraph 12 of your statement, that in the period prior to COVID, the frequency of cleaning had dropped to about once a week on some sites?‑‑‑On some sites absolutely filthy, rotten dirty places with overflowing garbage bins, maggots coming out of the top. Filthy toilets, absolutely disgrace, some parts of the industry, because the process of cleaning and looking after sites has been dropped off and that is one of the big issues that I had in my time with the union, getting places to be clean for workers – for human rights and workers' standards. Some jobs went to absolute disgraceful because they'd bring a contractor in once a week.

PN260

Okay, but with that in mind then, can I ask you this. Presumably despite the cleaning becoming less frequent, as you've just suggested?‑‑‑Yes, yes.

PN261

The projects on the sites that you were referred to still got completed?‑‑‑They all get completed eventually, but it depends on the standard of workplace, whether they have industrial problems or work and health and safety problems having disgraceful amenities. One way to resolve it is have people employed to clean the place on a regular basis, like we do here on the site I'm working now, where there's an employed cleaner that cleans up the place twice a day and we leave an impeccable clean lunch rooms and toilets instead of some of the filthy sites I've visited in my time. I'm really happy to be on this site, because the cleaners clean our amenities twice a day, every day.

PN262

And that's great, but the question that I'm putting to you is, that irrespective of sort of, the state of hygiene of the facilities on site, whether it's poor or its excellent, the work still goes on?‑‑‑Yes, sometimes. But what a disgrace if people have to put up with that. Why should workers have to put up with filth and disease just to finish a project when it should be maintained to standards of cleanliness and hygiene that all workers in this country deserve? Why are you suggesting that the jobs get finished anyway.

*** KENNETH CHARLES MILLER XXN MS SPIVEY

PN263

I'm not at all suggesting that the situation is - - -?‑‑‑Yes, they get finished anyway, and people put up with filthy grub conditions. It should be, like the site I work for, cleaned on a regular basis, so people can have a descent work life and not have to put up with filth and disease ridden sheds.

PN264

THE DEPUTY PRESIDENT: Mr Miller, can I just ask that you attend to the questions?‑‑‑You really touched a nerve there with that question. Yes, the jobs get finished.

PN265

Mr Miller?‑‑‑That doesn't mean that's below human standards.

PN266

MR FISCHER: Dusty, Dusty, the Deputy President is trying to talk to you?‑‑‑Sorry, you made me cranky then.

PN267

I understand. The Deputy President is trying to talk to you, mate?‑‑‑Sorry, Deputy President. That question made me angry.

PN268

THE DEPUTY PRESIDENT: Mr Miller can I ask that you focus on the questions that you're being asked so we can get through this a little bit quicker, thank you?‑‑‑The question was asked of me, Deputy President, do the jobs get finished. Yes, they get finished but not to a standard that we should have in the workplace. You there?

PN269

Ms Spivey, any further questions?

PN270

MS SPIVEY: No, I'm just thinking about whether I have any further questions, Deputy President

PN271

THE DEPUTY PRESIDENT: Okay.

PN272

MS SPIVEY: So, just to be clear, the jobs get completed, irrespective of whether the cleaning is done on site, that's what you just said Mr Miller?‑‑‑So, you think that's good?

*** KENNETH CHARLES MILLER XXN MS SPIVEY

PN273

I'm not here to offer up an opinion, Mr Miller. I just want to understand – you know, the question here is - yes?‑‑‑Okay, the job gets finished, but to me a clean site is a safe site. Those jobs might get finished but if WorkSafe – they often get told and a notice is put on them, because of the filthy standard of their amenities for workers, and that has happened and I've seen it happen and I've helped it happen for jobs to get closed until they get cleaned up.

PN274

I actually don't think I have any more questions, for Mr Miller, Deputy President.

PN275

THE DEPUTY PRESIDENT: Thank you, any re-examination?‑‑‑ Thank you very much for your time.

PN276

MR FISCHER: Yes, just briefly.

RE-EXAMINATION BY MR FISCHER [11.27 AM]

PN277

MR FISCHER: Sorry, Dusty, you're not released just yet. It's my turn?‑‑‑Okay, that's all right. I just got a little bit cranky with that line of questioning.

PN278

Understood. You were just expanding on your answer at the end there. You mentioned that if the amenities weren't sufficiently clean, they might attract prohibition notices. What happens - - -?‑‑‑Prohibition notices or industrial action. People will walk off the job when the toilets are filthy and their lunch rooms are filthy. Or WorkSafe will issue prohibition notices until the place is cleaned up to a hygienic standard.

PN279

Sure, and what does a prohibition notice do to the work on the site?‑‑‑It stops the work until the safety is brought up to standard.

PN280

Right, so if there's a prohibition notice on a site, preventing work, can the job be completed?‑‑‑Only once the prohibition notice is lifted, when the site is brought back to standard. When you say a job's complete, do you mean handed over to the client, or do you mean for the day?

PN281

No, handed over to the client?‑‑‑Okay, well the job will eventually be finished, but it will have delays and disruption because of that stoppage or industrial action or WorkSafe notices.

PN282

So, just to be really clear, while the amenities are so unclean that a prohibition notice has been issued, the job cannot be completed?‑‑‑No, because the amenities, toilets et cetera can't be used, so therefore the site can't operate.

*** KENNETH CHARLES MILLER RXN MR FISCHER

PN283

So, would you say that keeping amenities to a reasonably clean standard is necessary for the completion of the job?‑‑‑It's totally necessary for completion of the job in on-time and in a safe manner.

PN284

I have no further questions, Deputy President.

PN285

THE DEPUTY PRESIDENT: Thank you Mr Miller, that concludes your evidence and you're free to go now?‑‑‑Thank you very much for your time, and I appreciate your efforts and I'm sorry if I got a bit agitated.

PN286

No problem.

<THE WITNESS WITHDREW [11.24 PM]

PN287

THE DEPUTY PRESIDENT: Right, I think that leaves us with the question of Mr Maxwell, does it? No, yes. Mr Maxwell.

PN288

MR FISCHER: With respect, your Honour, Ms Rogers appears to be in the lobby.

PN289

THE DEPUTY PRESIDENT: Okay, thank you.

PN290

THE ASSOCIATE: Ms Rogers, can I confirm that you can hear and see me?

PN291

THE DEPUTY PRESIDENT: It's dropped out.

PN292

THE ASSOCIATE: Ms Rogers, can you hear me? Ms Rogers, I can't hear you.

PN293

MS ROGERS: Can you hear me?

PN294

THE ASSOCIATE: Yes, I can. Can you hear me?

PN295

MS ROGERS: Yes, I can now. Sorry about that.

PN296

THE ASSOCIATE: Thank you. Please state your full name and address.

*** KENNETH CHARLES MILLER RXN MR FISCHER

PN297

MS ROGERS: Suzanne Rogers, (address supplied).

<SUZANNE ROGERS, AFFIRMED [11.25 AM]

EXAMINATION-IN-CHIEF BY MR FISCHER [11.25 AM]

PN298

THE DEPUTY PRESIDENT: Thanks, Mr Fischer.

PN299

MR FISCHER: Thank you, Deputy President. Ms Rogers, do you have a statement in front of you?‑‑‑No, I don't in front of me, no.

PN300

Is it reasonably accessible to you?‑‑‑Yes, I would be – yes, it is reasonably accessible. I'm in the library, I'd have to go back home. Sorry, I didn't realise I needed it.

PN301

Apologies that might be my failure, Deputy President. Do you recall signing a statement?‑‑‑I do, yes.

PN302

Did you provide that statement on or about the 1 August?‑‑‑I did, yes.

PN303

To the best of your knowledge is everything in that statement true and correct?‑‑‑It is, yes.

PN304

Your Honour, we seek to tender that as evidence.

PN305

THE DEPUTY PRESIDENT: Thank you. Any objections to the tender of that statement?

PN306

MS SPIVEY: No, Deputy President.

PN307

THE DEPUTY PRESIDENT: Thank you. I'll mark that exhibit 4.

EXHIBIT #4 WITNESS STATEMENT OF SUZANNE ROGERS

PN308

MR FISCHER: I have no further questions, your Honour.

PN309

THE DEPUTY PRESIDENT: Thank you, Mr Spivey.

*** SUZANNE ROGERS XN MR FISCHER

CROSS-EXAMINATION BY MS SPIVEY [11.29 AM]

PN310

MS SPIVEY: Deputy President, I just want to know, I'm not quite sure how our cross-examination is going to be facilitated if Ms Rogers doesn't have the copy of her statement in front of her, but I will do my best. I assume that we would proceed on the basis that if I say that I'm quoting from Ms Roger's statement, that that's just taken as given? Can we proceed on that basis, or otherwise, it just makes it very difficult?

PN311

THE DEPUTY PRESIDENT: I think we can and I'm sure Mr Fischer won't have any objections to that course, because he will be able to read the same thing at the same time.

PN312

MR FISCHER: Indeed. Would it assist, Deputy President, if I – Suzanne, do you have access to your email?

PN313

MS ROGERS: I do, yes.

PN314

MR FISCHER: If I sent you a soft copy of that in PDF form, would you be able to open it?

PN315

MS ROGERS: I should be able to, yes.

PN316

MR FISCHER: Apologies, Deputy President, I'll just arrange that.

PN317

THE DEPUTY PRESIDENT: Mr Fischer, will that also include the attachments to Ms Roger's statement?

PN318

MR FISCHER: Yes.

PN319

THE DEPUTY PRESIDENT: Okay, thank you.

PN320

MR FISCHER: Okay Ms Rogers, I've sent that to your email address. Let me know when it comes through.

PN321

MS ROGERS: I will.

*** SUZANNE ROGERS XN MR FISCHER

*** SUZANNE ROGERS XXN MS SPIVEY

PN322

Okay, that's come through.

PN323

THE DEPUTY PRESIDENT: Thank you. Ms Spivey?

PN324

MS SPIVEY: Thank you, Deputy President.

PN325

Ms Rogers, I just have a few questions, in relation to your statement, please bear with me, we might be here for a little while. The first thing I wanted to take you through was your employment with Spec Services more generally. So I understand that, initially, Spec Services offered you a full-time fixed term contract for 12 months, from 9 September 2021, is that correct?‑‑‑Correct.

PN326

But then you chose, instead, to be engaged as a casual, because the hourly rate was higher?‑‑‑Yes, it was mainly - well, that was one reason, but it was also, too, looking at the full-time contract it was, I think, a 10 month contract or something like that, and I couldn't see much difference between the casual and the full-time in that it was going to be a - the original full-time employment, it was, I don't know, a contract basis type thing.

PN327

Okay. But irrespective of those circumstances, you started as a casual employee, with Spec Services, at the CDC site, at Hume, on 9 September 2021?‑‑‑Yes, that sounds about right.

PN328

Okay. Then you asked to be moved from Hume to another site, and you were offered the role with Construction Control, at Majura Park?‑‑‑Correct.

PN329

That construction project was referred to as Project Majura?‑‑‑Yes.

PN330

You started at Project Majura on 18 October 2021?‑‑‑Yes, that sounds right.

PN331

So you then asked to be removed from the Project Majura site, in early November 2021?‑‑‑Correct.

PN332

And you have not performed any further work for Spec Services after you were removed, at your request, from the Project Majura site, in early November 2021?‑‑‑Correct.

PN333

So it would be fair to say that you performed work for Spec Services for a little under two months, in total?‑‑‑Yes, that would be about right, yes.

*** SUZANNE ROGERS XXN MS SPIVEY

PN334

All right. Coming back just to the negotiations about your employment terms and conditions you say, at paragraph 15 of your statement, which is at page 59 of the court book, that you were confused - have you got that paragraph there, Ms Rogers?‑‑‑No, I - - -

PN335

I'll get you to bring that up. Fifteen, yes?‑‑‑Fifteen.

PN336

Fifteen, yes?‑‑‑I've got Attachment B, at page 15.

PN337

Paragraph 15, sorry, of your statement?‑‑‑Okay, sorry.

PN338

No, you're right?‑‑‑Yes.

PN339

You say you were confused about the rates of pay reflected in the casual employment contract because you thought that you were accepting a casual position at a higher rate of pay. Now, I'm not quite sure how we're going to facilitate this with the document that you have, but let's just do our best. So in Attachment D, which is at page 90 of the court book, and, specifically, page 12 of the fixed term employment contract, have you got that document there?‑‑‑No, I haven't.

PN340

So it's at the back of the employment contract, at Attachment D, if that helps? It's the annexure to the employment contract. There's a table with a series of items?‑‑‑No, I'm not following where you are.

PN341

Okay. So if you go to Attachment D, so start at the very beginning. I'm just trying to find the start of Attachment D. There is - - -

PN342

MR FISCHER: If I might, it's page 33 of the PDF that you have.

PN343

MS SPIVEY: Thank you?‑‑‑The schedule?

PN344

Yes, that's the one?‑‑‑Yes.

PN345

So that provides an hourly rate of $22.25, you would agree with that?‑‑‑Yes. That's - - -

*** SUZANNE ROGERS XXN MS SPIVEY

PN346

Then - okay. At Attachment F, I think there's only one page to Attachment F, which is at page 193 of the court book, and that's the letter of offer, from Spec Services, for the casual construction cleaner. Do you have that document?‑‑‑Not yet, give me a second.

PN347

No, you're right, take your time?‑‑‑Yes.

PN348

You'll agree that that document is dated 9 September 2021? The date's in the top left-hand corner?‑‑‑Yes.

PN349

You signed that document on 20 September 2021?‑‑‑By the looks of that, yes.

PN350

And that document provides an hourly rate of $30 per hour, is that correct?‑‑‑Yes.

PN351

Okay. Then, in Attachment G - no, Mr Fischer, I might need to seek your help again, with identifying which page of the PDF it is. I'm looking at the schedule to the input casual employment contract, which is at page 204 of the court book.

PN352

MR FISCHER: It's 147 of the PDF.

PN353

MS SPIVEY: Thank you?‑‑‑Yes.

PN354

That, too, would you agree, provides for an hourly rate of $30 per hour?‑‑‑Yes.

PN355

So do you agree that the hourly rate of pay, in the casual employment contract, matches what was in the letter of offer?‑‑‑Say that again?

PN356

Do you agree that the hourly rate of pay in the casual employment contract matches what was in the letter of offer, for the casual construction cleaner role?‑‑‑I think so. I'd have to look at a payslip to confirm it but, yes.

PN357

Let me assist you. You agreed that the letter of offer, for the casual construction cleaner, had an hourly rate or listed an hourly rate of $30. You agreed that the casual employment contract, similarly, included a rate of $30 per hour and would you agree that those two things match is my question?‑‑‑That's what the documents say. I'm not disputing the document.

*** SUZANNE ROGERS XXN MS SPIVEY

PN358

If that was the case, what was the reason for your confusion?‑‑‑Because of the fact that I spoke to other parties, friends in construction doing a similar job, that they got a higher hourly rate.

PN359

So you were comparing yourself to others in similar positions, who were working for other companies?‑‑‑Yes.

PN360

Okay. All right. Now, moving on to the duties that you performed while you were working for Spec Services, in your statement you say that at the CDC site at Hume and on Project Majura, that your duties included cleaning lunch rooms and toilets and, on Project Majura, you also cleaned the site office, is that correct?‑‑‑Correct.

PN361

Did you perform any other duties while you were working on those sites?‑‑‑No, I did not do - cleaning was my duties, yes.

PN362

Okay. So how did you know what duties you were required to perform, day-to-day, when you were on those sites?‑‑‑On the first site I liaised with the other staff member, Jason Ray I think his name was.

PN363

When you say, 'The other staff member', is Jason a staff member of Spec Services?‑‑‑Yes.

PN364

Okay. So that was on the CDC job?‑‑‑Correct.

PN365

Right, and on the Project Majura site?‑‑‑Project Majura site, I was basically left on my own devices and I liaised with a gentleman called Ethan.

PN366

Can I take you then, in light of what you've just said, can I take you then to Attachment J to your statement, which is page 318 of the court book? Just for your benefit, Attachment J is an email sent from a representative of Spec Services, Rita Sorrentino, to you, on 18 October, which I think you'll agree we've already established was the day that you started on the Project Majura site, setting out - which attached a cleaning scope, can you see that?‑‑‑No.

PN367

MR FISCHER: It's at 259 of your PDF.

PN368

MS SPIVEY: Thank you, Mr Fischer.

*** SUZANNE ROGERS XXN MS SPIVEY

PN369

THE WITNESS: Yes, okay. (Indistinct) gives me any information.

PN370

MS SPIVEY: Let me finish. Attached to that email, which I think should be - I think it's two pages on from where you are, is a cleaning scope?‑‑‑Right.

PN371

Can you see that?‑‑‑Yes.

PN372

Have you seen that document previously?‑‑‑Is that the one that Rita emailed to me, or is that the one that was originally on site?

PN373

Is there a distinction to be made?‑‑‑Yes, because originally the one on site was different to that one and - - -

PN374

Okay?‑‑‑ - - - and I spoke to Rita saying that there was too much work there and I - - -

PN375

Sorry, can I just interrupt you there, so that we can be very clear. But what you are saying is that on site there was a cleaning scope, whether it was this one exactly, that's attached to your statement, or a variation of this, that was provided to you by Spec Services?‑‑‑Sorry, I don't understand what you're asking me.

PN376

I'll ask the question again. Let me just clarify what you were saying first. So I think what you were saying to me, and correct me if I'm wrong, is that the scope that is attached to your statement, at Attachment J, is different to the one that was on site when you got there, is that right?‑‑‑Correct.

PN377

But what I am asking you is, was there a cleaning scope similar to this one, on site, when you started at Majura Park, on the Project Majura?‑‑‑Define 'similar', because it was changed completely.

PN378

Was there a document on site at Project Majura that had been put together by Spec Services, which set out the tasks that you were required to perform, on a day-to-day basis?‑‑‑Correct.

PN379

Okay. So irrespective of whether it was this precise cleaning scope that was attached to the email, or any other, there was a document of that nature provided to you, in relation to Project Majura?‑‑‑Correct.

*** SUZANNE ROGERS XXN MS SPIVEY

PN380

So when you say that you were left to your own devices, in those circumstances, what exactly is it that you mean?‑‑‑In that schedule that was original in Majura Park did not work and even when we got an updated schedule that still didn't work, so I had to liaise with Ethan, who worked with the company who we were cleaning for, to find out what was best for them, as a company, to do the cleaning and in what order. i.e., for example, if you look at the schedule it says, 'Office cleaning at 10.30 to 11.30', that did not work for them, and I had to liaise with them, for example, when that particular job had to be done. It didn't necessarily get done at 10.30, because that didn't work for them, as the client.

PN381

Okay. So when there were changes to the cleaning scope that was issued to you, by your employer, did you liaise with your employer about those changes, or did you just take matters into your own hands?‑‑‑Initially I talked to Rita, and that's why we got a new schedule. Then when I discussed, with Rita, that the schedules weren't working, she basically said, 'Do what you can in the timeframe that you've got. As long as it basically looks clean, that will keep the client happy', so I was sort of left to my own devices, in essence.

PN382

Right. But in terms of being left to your own devices, you were also required to provide cleaning services, to the best of your ability, in the time that you had, consistent with the instructions that were issued to you by Spec Services?‑‑‑Well, the schedule that they issued, I could no maintain because there wasn't enough staff to do the job.

PN383

No, what I'm saying - I understand what you're saying is that there was too much work to be done?‑‑‑Yes.

PN384

I get that, and that you needed to - you felt that you needed to pick and choose what you needed to do on each day, in order to - - -?‑‑‑It's not I felt, I liaise with Rita in regards to what I needed to do, and she basically said to me, 'If that schedule doesn't work, talk to the client and make it work'.

PN385

Okay. But, still, the services that you provided were within the scope of what falls within those cleaning instructions. You didn't do anything else, other than the types of things that are set out in that cleaning scope?‑‑‑Well, no, because, for example, if I worked on the weekend I didn't do any of those jobs at all and I went to another building and I cleaned all the toilet blocks in another building.

PN386

Can you please - - - ?‑‑‑No, if you want me to answer honestly and accurately - - -

PN387

What work were you performing on weekends, and who was that for?‑‑‑That was for the client.

*** SUZANNE ROGERS XXN MS SPIVEY

PN388

Which client are you talking about?‑‑‑As in who you mentioned earlier, Project Majura.

PN389

I'm not necessarily understanding exactly what you - - -?‑‑‑Besides the schedule that you see on item J, right?

PN390

Yes?‑‑‑

PN391

THE DEPUTY PRESIDENT: I think we might have a technical issue.

PN392

MS SPIVEY: Ms Rogers, can you - - -

PN393

THE DEPUTY PRESIDENT: Mr Fischer, are you able to potentially - are you able to text?

PN394

MR FISCHER: With your permission, your Honour, I will do that.

PN395

THE DEPUTY PRESIDENT: Please. And perhaps just ask her to disconnect and come back in. Thank you.

PN396

MR FISCHER: I haven't received a response, as yet.

PN397

THE DEPUTY PRESIDENT: Okay, thank you.

PN398

MR FISCHER: While we're waiting, Deputy President, I wanted to flag that as some of the evidence provided by Ms Hale is different to what's in the statement, I will flag that I would like to provide further written submissions, in relation to this matter, after this hearing is concluded, if that's acceptable with my colleague.

PN399

THE DEPUTY PRESIDENT: So you're talking about the evidence of Ms Rogers or Ms Hale?

PN400

MR FISCHER: Ms Hale.

PN401

THE DEPUTY PRESIDENT: Right. Okay. Let's see where we end up after we've concluded the evidence, thanks.

*** SUZANNE ROGERS XXN MS SPIVEY

PN402

MR FISCHER: Thank you.

PN403

THE DEPUTY PRESIDENT: Ms Rogers, can you hear me?‑‑‑I can.

PN404

Thank you.

PN405

THE WITNESS: Sorry about that, I don't know what happened.

PN406

THE DEPUTY PRESIDENT: That's okay.

PN407

MS SPIVEY: Okay, Ms Rogers, I'll take you back to where we just were, in terms of trying to understand how it was that your duties were allocated while you were at Project Majura?‑‑‑Yes.

PN408

So I'll do a little recap, just so that we're all clear, after our little interruption there. So what you're saying is, you were issued with the initial cleaning scope. When you arrived on site that cleaning scope was revised because there was some issue with how much work there was to do in the period that you had available to you?‑‑‑Yes.

PN409

You liaised with Rita, at Spec Services, that's correct?‑‑‑Correct.

PN410

Then, essentially, you and the client determined, within the scope of the work that you had been asked to do by Spec Services, what could be done on a day-to-day basis, is that correct?‑‑‑Not from what you - my interpretation of what you're saying, no.

PN411

So what is your interpretation of what I am saying? I'm just trying to understand how it was that when you were at Project Majura, specifically, we're only talking about Project Majura here, how it was that you understood what you had to do, on a day-to-day basis?‑‑‑Okay. My day-to-day - my understanding was I had the duties of what is listed in Appendix J.

PN412

Sure?‑‑‑As I said to you earlier, when I first got there the schedule didn't work. I talked to Rita about it, I gave her a new schedule that I thought might work, which she actually never changed the way I'd originally given her, which I thought would work. So, for example, I think I had the office site in the morning, because I'd liaised with Ethan what was the best way to do that particular job and - - -

*** SUZANNE ROGERS XXN MS SPIVEY

PN413

Sorry, Ms Rogers, just to interrupt, but when you talk about cleaning the office facilities, that was something that was in the scope of work that you were required to do at Project Majura?‑‑‑Correct, yes.

PN414

Okay. Sorry, I interrupted?‑‑‑But I also had, for example, on the weekend I had - where I had to clean a whole - so across the road from the - there was two buildings, one of the other buildings, which was used by the Department of Defence, was not in that scope that is listed in Appendix J, which was outside that scope of work. So I mean I don't know - - -

PN415

Sorry, based on your understanding, though, because we're talking about buildings that I think you just said were outside of the site, was that - - -?‑‑‑No, no. It was all part of the same site.

PN416

Right?‑‑‑My - on that Appendix J, right, I cleaned the office site plus the amenities that the workers used, right. Outside of that Appendix J, I, on the weekend, because one of the guys was sick and couldn't work on that weekend, I did an office building that was still inside the boundaries of that complex, that are not listed on that schedule.

PN417

But what you're saying is, is that the work that you did outside the facilities that are on the schedule was a one-off, and it was for somebody else who was actually originally assigned that work but couldn't do it?‑‑‑Correct.

PN418

That person also worked for Spec Services?‑‑‑Yes.

PN419

All right. Okay. So I think we understand how your work was allocated at Project Majura. Just going back to the CDC site, you took instructions from Jason, so did you get different instructions every day about what to do, or was there a regular cleaning program?‑‑‑No. There was - you got told your duties and you did the duties at your own timeframe, I guess. So it wasn't at 10 o'clock you did the toilet, at 2 o'clock you did the lunch room. You did the tasks as they were required.

PN420

Okay. Did anyone, other than Jason, provide you with instructions, when you were at CDC?‑‑‑Well, in the regards provide instructions, yes, one of the managers there. For example, I had done all my – it was a weekend and one of the tasks was, I volunteered to clean one of the walkways, and I asked for permission from the management at the company to do that and I was allowed permission to do that.

*** SUZANNE ROGERS XXN MS SPIVEY

PN421

But you were instructed to do the work by Spec Services, is that correct?‑‑‑No, it was a – my duties were, clean the lunch rooms and clean the toilets. That was my tasks.

PN422

So why were you cleaning the walkway?‑‑‑Because I'd done my other tasks, and to be productive I sought further tasks that needed to be done by the client.

PN423

But the client didn't ask you to do that, you volunteered to undertake those tasks?‑‑‑Yes.

PN424

Just in terms of your duties but on a slightly different topic, at paragraph 26 of your statement, which is at page 60 of the court book - - -?‑‑‑Yes, I don't know where I'm looking.

PN425

Your statement.

PN426

MR FISCHER: It's page 3 of that document.

PN427

MS SPIVEY: Thank you, Mr Fischer?‑‑‑Yes, what am I looking at?

PN428

Paragraph 26. It says that you did not perform any fit-out cleans while you were employed by Spec Services, you'd agree?‑‑‑Yes.

PN429

Did you have any knowledge as to what those fit-out cleans required?‑‑‑Only from the point of view that the other staff that were over there were getting it ready for handover to the Department of Defence.

PN430

Okay, but you don't know what it was that they were doing, precisely?‑‑‑I – well, I asked them, but I mean, I can't recall what they actually told me, yes.

PN431

Yes. What was the gist then? Can you remember anything about what they said?‑‑‑They were going out to a

PN432

pre-inspection for a handover, in essence.

*** SUZANNE ROGERS XXN MS SPIVEY

PN433

All right. Moving on a little bit from where we just were, to the issue of supervision in your role, so the next paragraph in your statement, paragraph 27, which is on page 61 of the court book, you say that, 'During my employment with them' which I have assumed is a reference to Spec Services, 'most the day to day direction came from the companies who contracted with Spec Services'?‑‑‑Yes.

PN434

So, in that paragraph, when you say day to day direction, what is it that you actually mean?‑‑‑Well, as you mentioned in Appendix J, or whatever it was, that was the schedule that I had been given, and I liaised with Ethan on whether that schedule would work. For example, sometimes I couldn't do the schedule as dictated by the documentation, so I liaised with the client as to what was required when.

PN435

Okay, but I also - - -?‑‑‑I.e., whether I did the office at that particular time.

PN436

Yes?‑‑‑There was two offices. There was the main office and there was an induction room, and I liaised with them to decide when they wanted me to do those particular tasks.

PN437

Yes, but if I'm hearing you correctly, what you're saying is when you liaised with Ethan you were determining which of the tasks that you were to perform that Spec Services had told you to perform and when, so the nature of the work that you were doing was not at the direction of Ethan, it was just consistent with what you had been told to do by Spec Services?‑‑‑No, I disagree with that. I got given tasks to do throughout the day, right - - -

PN438

Yes?‑‑‑And as I said to you, I'll liaise with the client, Ethan, when for example, that office needed to be cleaned. Because if I did it at 10.30, for example, right - - -

PN439

Sure?‑‑‑He would sometimes say, 'No, go away, I don't want it done now because it's too disruptive.'

PN440

But the scope of the work that you were doing, the scope of the cleaning services that you were provided, was all within what is in that scope document that Spec Services provided to you. You didn't do anything outside of the scope of those services?‑‑‑Okay, now you're changing your words to mean you were there now.

PN441

No, I asked the question – why I'm asking you is - - -?‑‑‑Well, hang on, I'm being quite direct and quite honest with what I'm saying to you.

PN442

Yes?‑‑‑And what I've said to you is - - -

*** SUZANNE ROGERS XXN MS SPIVEY

PN443

And nobody – Ms Rogers - - -?‑‑‑That I - - -

PN444

Nobody here is suggesting that you were being dishonest. What I'm asking you - - -?‑‑‑Well, hang on. No, where you were saying then, it does. And I object to that.

PN445

No, I am asking you whether the work that you performed, the nature of the work, the office cleaning, the amenities cleaning, all of those things that you did at Project Majura, they were all the types of things that are within that cleaning scope document - - -?‑‑‑Yes.

PN446

That Spec Services gave to you?‑‑‑And I do not dispute what you have just said then.

PN447

Okay, that was my question?‑‑‑What I dispute - - -

PN448

That was my question. What you're saying is, you and Ethan liaised about when you did something, but ultimately what you did was within the scope of what was given to you by Spec Services?‑‑‑Yes, but what you're saying - - -

PN449

Yes?‑‑‑But what you're saying and what my statement says is, you're saying two different things.

PN450

How is that? I just want to be very clear that we're not – - -?‑‑‑Because - - -

PN451

Talking about (indistinct) services here?‑‑‑Because I did the cleaning on a day to day basis, right?

PN452

Yes?‑‑‑And as I said, I would speak to Nathan(sic) when, for example, a particular task needed to be done. Sometimes he wouldn't want me to do a particular task at a particular time. So I mean, that is exactly what I said there.

PN453

No, I understand that?‑‑‑The direction came from him. I wasn't ringing River(?) every day to go, 'How am I going to do a particular task', or get the direction on what to do.

PN454

No. No, and I understand that you and Ethan were liaising about when you did the work and what was done, but my question to you was, ultimately what you did, the types of services that you performed, were within the scope of the job.

*** SUZANNE ROGERS XXN MS SPIVEY

PN455

MR FISCHER: Your Honour, I object. This question has now been asked a number of times and it's had a answer.

PN456

THE DEPUTY PRESIDENT: I think I've got the answer,

PN457

Ms Spivey. I think we're - - -

PN458

MS SPIVEY: That's fine. As long as the answer is clear and we're not talking at cross purposes. I've got one go at this.

PN459

(To witness) Okay, so in relation to your work at the CBC site at Hume, you say at paragraph 12 of your statement, which I think is on page 59 of the court book that you reported to Jason?‑‑‑Yes.

PN460

You also gave evidence a short time ago that Jason was the person who assigned you tasks, day to day, at Hume and that there was nobody else other than Jason who was responsible for directing you, is that correct?‑‑‑Yes. Yes.

PN461

Yes, okay?‑‑‑Nathan assigned the tasks to me, day to day. The tasks didn't change, so there was no assignment of tasks.

PN462

All right, but if there were to be different tasks assigned then Jason would be the one who would have assigned them to you?‑‑‑Yes.

PN463

So, if Jason was the person that was giving you work instructions and he was the person that you reported to - - -?‑‑‑Mm-hm.

PN464

And Jason is an employee of Spec Services - - -?‑‑‑Yes.

PN465

Which I think we agreed earlier, would you agree that your day to day direction at Hume was not coming from a company that contracted with Spec Services but from Spec Services itself?‑‑‑Yes, and that was never the issue.

PN466

Okay, but you did - - -?‑‑‑I (indistinct) first said that I - - -

PN467

You have said - - -?‑‑‑That I was given direction by the – other than a representative of Spec Services.

*** SUZANNE ROGERS XXN MS SPIVEY

PN468

But that is inconsistent with your statement at paragraph 27 of your statement, which was, and I'll read it out verbatim just to be fair to you. 'During my employment with Spec Services most of the day to day direction came from the companies who contracted with Spec Services.' So what we actually have if I can put it to you this way, is for the period that you were at CDC at Hume, which was from 9 September through to about, say 15 October, you were actually taking direction from a Spec Services employee, and that was about a six week period, would you agree?‑‑‑Yes. Yes.

PN469

Then for what was a two to three week period, you were at Project Majura, you were provided with a scope of work by Spec Services, and then you worked within that scope in consultation with the client. Is that a fair description of what happened?‑‑‑I would say you're working on semantics there, and what I mean the statement is - - -

PN470

Semantics are important?‑‑‑You're twisting to mean something else.

PN471

No, I just want to be very clear about what your statement means. Because in your statement you have said - - -?‑‑‑Okay. All right, I'll - - -

PN472

Most of the time, during - - -?‑‑‑Let me be very clear then.

PN473

That while - - -?‑‑‑While I was at Hume - - -

PN474

Yes?‑‑‑I was under the direction – well, not even under the direction because he wasn't a supervisor, he was just another work colleague, right - - -

PN475

Yes?‑‑‑And I had actually asked Spec Services if he was a supervisor and told, well, he wasn't, he was just another employee, and at Majura I was basically left to my own devices. Yes, I had a schedule of jobs to do. But on a day to day basis, I talked with Nathan to decide whether a particular job got done at a particular time.

PN476

Okay?‑‑‑So when I say that I basically liaised with the – not Spec Services, but i.e., for example, Nathan, that is correct and true.

*** SUZANNE ROGERS XXN MS SPIVEY

PN477

And as I said, nobody is disputing the facts that you've liaised with him?‑‑‑Well, you're twisting my words in a statement that I've said, all right? I haven't been succinct and precise and clear enough, what I've written and then I've had to justify myself to you what I've actually meant.

PN478

Well, all the parties are – you know, it's - - -?‑‑‑It's not - - -

PN479

All the parties need to understand precisely what it is that your evidence is. I'm sorry - - -?‑‑‑And hopefully - - -

PN480

If the manner in which you've been asked has caused you offence or upset, but the fact is, is that all of the parties here, the CFMMEU, the Commission and us, we need to understand precisely what it is that you are saying?‑‑‑Right.

PN481

Right?‑‑‑And hopefully by me verbalising it, I'll be more precise in what I'm trying to say.

PN482

Thank you. I don't think I actually have any more questions for Ms Rogers, thank you, Deputy President.

PN483

THE DEPUTY PRESIDENT: Thank you. Any re-examination?

RE-EXAMINATION BY MR FISCHER [12.16 PM]

PN484

MR FISCHER: Yes, your Honour. I'm hoping to clear up the last point that came up, for starters.

PN485

(To witness) Ms Rogers, during the six weeks that you were present at Hume, you've stated that you weren't receiving day to day direction, is that correct?‑‑‑Correct.

PN486

And during the three weeks you were at Majura Park, you were receiving day to day direction from Ethan, is that correct?‑‑‑Correct, yes.

PN487

So, most day to day direction, as per your statement at 27, came from the client, is that right?‑‑‑Yes, in the context that I've said verbally, yes.

PN488

Yes. I think on that basis the statement is not contradicted. Is that your view?‑‑‑My view? Yes.

*** SUZANNE ROGERS RXN MR FISCHER

PN489

Yes, okay, thank you. I had one other question, just to clarify. When you were discussing Majura Park, you noted that you - a bone of some contention between you and my colleague was around the cleaning of an office building that was on the site, but wasn't the building mentioned in the schedule, is that right?‑‑‑Correct.

PN490

Just to clarify, you were asked to clean that building by a person, is that right?‑‑‑What do you mean 'a person'?

PN491

Well, how did you know to go and clean that other building?‑‑‑From memory, I think, yes, no, I can't recall.

PN492

Fair enough. But you understood, in relation to that building, that the client wished you to clean it, is that right?‑‑‑Yes, I believe so.

PN493

Okay. I have no further questions for Ms Rogers, thank you, Deputy President.

PN494

THE DEPUTY PRESIDENT: Thank you, Ms Rogers, that concludes your evidence and you're free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW [12.18 PM]

PN495

THE DEPUTY PRESIDENT: All right, Mr Fischer, let's have a talk about Mr Maxwell?

PN496

MR FISCHER: Certainly.

PN497

The reason that I sought leave to have him provide evidence at short notice is because the respondent has put on a letter, written by Mr Maxwell, in relation to an award process in 2009. They have made submissions as to what that letter signifies and I thought it might be useful to the Commission to have Mr Maxwell explain directly what part of the process that letter formed, and what the outcomes of that process were.

PN498

THE DEPUTY PRESIDENT: Where is it in the court book, the letter?

PN499

MR FISCHER: The letter, that's a good question. It is page 373.

PN500

THE DEPUTY PRESIDENT: So, Mr Fischer, why do you say his evidence is going to assist me?

*** SUZANNE ROGERS RXN MR FISCHER

PN501

MR FISCHER: Because, your Honour, the respondent has made submissions that what this letter represents is a claim, by the CFMMEU, to expand the coverage, to cover cleaners and caterers, and that the decision of the Commission was, in fact, that it not be expended to cover cleaners and caterers. That is the submissions, as I understand it. Is that fair, Ms Spivey?

PN502

MS SPIVEY: What I would say to that is - well, in essence, yes, I agree with that characterisation. I mean, effectively, what this is intended to evidence is that, as Mr Fisher has said, the CFMMEU had the opportunity to, as part of the award modernisation process, provide the Commission with various drafts of the - what became the Building and Construction (General Onsite) Award. From our perspective, the document speaks for itself.

PN503

MR FISCHER: So our submission is that that's a mischaracterisation of how the awards process works and what this letter represents, in the context of that process. The best person to provide that evidence would be the author of the letter, in our view.

PN504

THE DEPUTY PRESIDENT: It might be evidence of his view of how a process may or may not work, but processes can vary, for a whole variety of reasons.

PN505

MR FISCHER: Certainly. But the purpose of the letter was not to advance a new claim, or at least these are some of the questions that I intend to ask him, but, rather to assist a process that was attempting to streamline and modernise and reduce coverage clauses to more manageable lengths.

PN506

THE DEPUTY PRESIDENT: Ms Spivey, do you object to Mr Maxwell giving evidence?

PN507

MS SPIVEY: I just fail to see the relevance of the evidence. As you've said, it will just be a matter of Mr Maxwell's opinion. The submission has been made on behalf of the respondent is that as part of the award modernisation process, the issue of cleaners being covered by this award was obviously something that was in the minds of the parties and, ultimately, that did not form part of the award. That's the scope of it.

PN508

As to the minds of the members of the Commission who - we're obviously not going to get evidence of what their position was here, I mean I'm not sure that even any context will be useful. I'm in the Commission's hands, in that respect.

PN509

MR FISCHER: With respect, I don't think it is obvious that that's how the process works.

PN510

THE DEPUTY PRESIDENT: Ms Spivey, I think we'll hear from Mr Maxwell. If, given the short notice, you need further time to be able to cross‑examine him, then you can let me know and we can deal with that. If there's anything that arises that you want to deal with, otherwise, in terms of further evidence, let me know and we'll deal with that as well.

PN511

MS SPIVEY: Okay. Thank you, that sounds sensible.

PN512

THE DEPUTY PRESIDENT: Mr Fischer, is he available now?

PN513

MR FISCHER: Yes, your Honour. I will just contact him and he should be able to dial in presently.

PN514

THE DEPUTY PRESIDENT: All right. Let's just take a very short adjournment while you're doing that and we'll resume at 12.30.

PN515

MR FISCHER: Thank you, your Honour.

SHORT ADJOURNMENT [12.23 PM]

RESUMED [12.31 PM]

PN516

THE ASSOCIATE: Mr Maxwell, can you hear and see me?

PN517

MR MAXWELL: Yes, I can.

PN518

THE ASSOCIATE: Please state your full name and address?

PN519

MR MAXWELL: Stuart Glyn Robeson Maxwell and my work address is Level 1, 1 Miller Lane, Pyrmont, New South Wales.

<STUART GLYN ROBESON MAXWELL, AFFIRMED [12.31 PM]

EXAMINATION-IN-CHIEF BY MR FISCHER [12.31 PM]

PN520

THE DEPUTY PRESIDENT: Thank you, Mr Fischer.

PN521

MR FISCHER: Thank you.

*** STUART GLYN ROBESON MAXWELL XN MR FISCHER

PN522

Mr Maxwell, have you got with you a copy of a letter, dated 19 January 2009?‑‑‑Yes, I do.

PN523

Is the title of that letter, 'Re AM 2008/15 Award Modernisation Building Metals and Civil Construction Group'?‑‑‑Yes, I do.

PN524

Were you the author of that letter?‑‑‑I was.

PN525

The document attached to it, what's referred to as, 'The revised draft of the proposed Construction Related Industries Award, A version 3'. Were you, in any way, responsible for the production of that document?‑‑‑Yes, I was. It's my work.

PN526

Thank you. Are you able to explain to us the purpose for which you sent that letter and that attachment?‑‑‑This was at the beginning of the process of the award modernisation that was the result of the introduction of the Fair Work Act, and it was a process of consolidating a range of federal awards and state awards that applied in the federal system, through the, I suppose going back to the change to the industrial relations landscape. At the time there was a (indistinct) debate across the industry about whether that there should be a range of individual awards for different sectors of the building and construction industry, as opposed to, our view at the time, that there should be a reduced number of awards that applied to the industry. So, for example, there were different awards covering - the coverage of the awards, prior to 2010, were a result of the service of logs of claims and disputes, based on union coverage, you had a number of different awards applying to the industry, based on the coverage of the different unions at the time. That changed in the 2000s and you then had - there was a push to have industry awards where the unions were not identified as individual respondents and the awards had wider coverage. That was the context of that draft of the award that we submitted what we saw as an award that would cover everyone working on building and construction sites, across Australia.

PN527

Thank you. The coverage clause, specifically, if I can take you to that, which is - sorry, I should have done this before, it's on page 3 of the document?‑‑‑Yes, I have that.

PN528

Under, 'Definitions', is says, 'Construction industry means', and then it lists a range of dot points?‑‑‑Yes, I have that.

*** STUART GLYN ROBESON MAXWELL XN MR FISCHER

PN529

Was this coverage clause new to this document, or did it pre-exist this document?‑‑‑That was new to this document. It was based on our understanding of the coverage of the various awards that applied in the building and construction industry. It was an attempt by the union to try and, I suppose, simplify the coverage to make it easier for people to understand where the award actually applied.

PN530

Was this award an attempt to expand the coverage over and above the predecessor awards?‑‑‑No. It was intended to reflect the coverage of the many federal and state awards that applied in the industry.

PN531

So, in your view, it was intended to reflect the current practice on sites at the time?‑‑‑That's correct.

PN532

Thank you. I believe that is, in fact, the key element that I want to deal with, but I will ask one further question. The award that resulted, the 2010 Award, it doesn't have a coverage clause that reflects this, does it?‑‑‑No, not exactly, no.

PN533

Okay?‑‑‑The coverage in the 2010 Award, when you look at the wording, it is reflecting of the wording that was used in the predecessor awards. So, for example, if you look at the definition of civil construction, that is mainly taken from the AWU Construction and Maintenance Award that applied prior to the 2010 Award, and the definition of general building and construction is taken from the National Building and Construction Industry Award 2000, that applied previously.

PN534

So rather than having a single streamlined definition of a single construction industry, they maintained these streams, which come from prior awards, is that correct?‑‑‑That's correct, and that's why you see the different definitions for (indistinct).

PN535

Was it - sorry?‑‑‑It was also used for different purposes in that if you look at the shift work provisions in the Construction Award, there were different shift work provisions that applied to the general building and construction industry and the metal and engineering industry and a different set of conditions that applied to the civil construction industry.

PN536

So is it your understanding, or did the Commission state, at any point in time, that they were seeking to reduce the coverage of any of the predecessor awards?‑‑‑No.

PN537

So if I understand it, the result of the modernisation process was that a number of predecessor awards were simplified into fewer awards, but the coverage of the newer awards was simply an agglomeration of the previous awards. They didn't expand it or reduce it in any significant way?‑‑‑That's correct.

*** STUART GLYN ROBESON MAXWELL XN MR FISCHER

PN538

Thank you, I have no further questions.

PN539

THE DEPUTY PRESIDENT: Thank you. Ms Spivey, do you need some time in terms of cross-examination or are you ready to proceed now, or is there any cross-examination, I should say?

PN540

MS SPIVEY: I think I just have a couple of questions, Deputy President, so I'll proceed and then if I think that I might need just a couple more minutes to think through the balance of what I would like to ask, then if I could just have your indulgence to do that I would appreciate that.

PN541

THE DEPUTY PRESIDENT: Sure.

CROSS-EXAMINATION BY MS SPIVEY [12.40 PM]

PN542

MS SPIVEY: I think if I've understood your evidence correctly, Mr Maxwell, essentially what the draft provided under the cover of the letter from you dated 19 January 2009, was an attempt at basically simplification of – or sorry, to provide one singular definition of the construction industry which would then form the basis of, sort of, the modern award system, going forward, in the construction industry, is that correct?‑‑‑Yes. Yes.

PN543

So then if I've understood your evidence correctly, what we ended up with was basically a carbon copy of the coverage clauses from a variety of other awards in the three different streams, is that correct?‑‑‑Yes.

PN544

Would you agree that in the process of attempting to simplify what were three, I think you might agree, particularly complex awards dealing with, you know, different sections of the building and construction industry, might it be the case that in that simplification process you may well end up expanding the coverage of the awards just because of the language that is used?‑‑‑No, I wouldn't agree with that, in that the – the AIRC from the Bench was fairly specific in ensuring that they, I suppose, didn't change the coverage provisions of awards.

PN545

Sure?‑‑‑They didn't see that as necessarily about their role, doing that but that process was just to reduce the number of awards that applied, but maintaining the various coverages where they existed.

*** STUART GLYN ROBESON MAXWELL XXN MS SPIVEY

PN546

Okay, and that, you would accept, is why they went with the methodology that they did in constructing the coverage clause the award. But what I'm asking you is a slightly different question and I'm sorry if I haven't been clear about what I'm asking. What I'm saying is, by putting up the drafts that the CFMMEU did at the time, and as part of that trying to simplify that sort of more complex coverage structure, do you agree that there was a possibility that in doing so, you may have inadvertently expanded coverage?‑‑‑Well, I'm not really clear of the question you're asking. Are you asking whether we sought to expand the coverage in the document we - - -

PN547

No, I'm not saying that you did it deliberately. What I'm saying is, as part of the drafting process, by trying to combine all of these key concepts and simplify them, what may have happened whether deliberately or inadvertently, it may have led to the expansion of the coverage of the award?

PN548

MR FISCHER: Deputy President, this question is about something that the witness does not know. (Indistinct) the question.

PN549

MS SPIVEY: If he doesn't know, he should say he doesn't know and we can move on.

PN550

THE WITNESS: My response would be this, that we put forward that which we thought reflected the existing coverage. The coverage clause that was returned by the AIRC Full Bench that there was no – that there is limited information with decisions as to what they actually did, and the decision and the reason behind their decisions.

PN551

MS SPIVEY: Okay. I don't have any further questions, Deputy President.

PN552

THE DEPUTY PRESIDENT: Thank you. Mr Fischer, anything in re-examination?

PN553

MR FISCHER: No thank you, your Honour.

PN554

THE DEPUTY PRESIDENT: Thank you, Mr Maxwell. That concludes your evidence and you're free to go?‑‑‑Thank you.

<THE WITNESS WITHDREW [12.44 PM]

PN555

So Mr Fischer, does that conclude your evidentiary case?

*** STUART GLYN ROBESON MAXWELL XXN MS SPIVEY

PN556

MR FISCHER: Yes, your Honour. I apologise, I actually ought to have done this upfront but I do wish to tender the additional documents provided in the bundle. I apologise, as I realised after the fact that I have, in fact, directed witnesses to them, attachment 1, attachment 2, and attachment 3, which is the web page headed, 'Industrial Construction Cleaning' at pages 22 to 24; a webpage headed, 'Managed Workforce' at 25 to 27; and attachment 3, transcript of A Walters & Sons at 28 to 57. I apologise for that.

PN557

THE DEPUTY PRESIDENT: That's all right. I'll mark as exhibit 5 then, the 3 attachments to the CFMMEU's submissions dated 2 August 2022.

EXHIBIT #5 THREE ATTACHMENTS TO CFMMEU'S SUBMISSIONS DATED 02/08/2022

PN558

MR FISCHER: But apart from that, yes, that is our evidentiary submissions, thank you.

PN559

THE DEPUTY PRESIDENT: All right, I'll just make a quick note.

PN560

MS SPIVEY: Deputy President, I would like to do the same in respect of the letter of 9 January of 2009, that Mr Maxwell authored, as well.

PN561

THE DEPUTY PRESIDENT: Was that 9 - okay.

PN562

MS SPIVEY: I don't believe we got around to that when we were juggling the witnesses, so - - -

PN563

THE DEPUTY PRESIDENT: So that's the 11 (indistinct) in the last document of the court book bundle, which is titled - - -

PN564

MS SPIVEY: That's correct.

PN565

THE DEPUTY PRESIDENT: (Indistinct), okay. I'll mark that exhibit 6.

EXHIBIT #6 LETTER AUTHORED BY MR MAXWELL DATED 09/01/2009

PN566

You've both mentioned something about the submissions. Perhaps I can hear you both, Mr Fischer first, whether you want to do oral submissions today, or written submissions at a later point in time.

PN567

MR FISCHER: My preference, your Honour, would be to provide written submissions after the transcript is produced. There are some paragraphs of Ms Hale's statement which did not have the meaning which I had originally understood them to have, based on Ms Hale's evidence. So I would appreciate the opportunity to look at the transcript and make further submissions based on that.

PN568

THE DEPUTY PRESIDENT: Ms Spivey, do you have any objections to that course?

PN569

MR FISCHER: I have no objections to that course, Deputy President.

PN570

THE DEPUTY PRESIDENT: So the transcript will be five days, is the standard timeframe. I'll just look at the calendar. So assuming we have the parties(sic) for next Friday, Mr Fischer, how long do you want? Is a week sufficient?

PN571

MR FISCHER: A week after the receipt of the transcript if that's possible, Deputy President.

PN572

THE DEPUTY PRESIDENT: Yes. We'll call that Friday, 2 September.

PN573

MR FISCHER: Yes.

PN574

THE DEPUTY PRESIDENT: Ms Spivey, a week from then, is that okay? So that'd be 9 September?

PN575

MS SPIVEY: That works, Deputy President.

PN576

MR FISCHER: Sorry, I've just realised, your Honour, I have another matter on Friday the 2nd. Would the Monday be possible?

PN577

THE DEPUTY PRESIDENT: This is just for Ms Spivey's reply submission to be filed.

PN578

MR FISCHER: I'm sorry.

PN579

THE DEPUTY PRESIDENT: Is that what you meant?

PN580

MR FISCHER: Sorry, I understood that the transcript would take - - -

PN581

THE DEPUTY PRESIDENT: Yes, are you saying not to file your material on the 2nd?

PN582

MR FISCHER: Yes. Would the 5th be possible? I understand that that's a difficulty.

PN583

THE DEPUTY PRESIDENT: Okay, Monday the 5th, it will be then.

PN584

MR FISCHER: Thank you, your Honour.

PN585

THE DEPUTY PRESIDENT: Ms Spivey, do you want slightly more than a week then?

PN586

MR FISCHER: Monday the 12th. That's more than adequate time.

PN587

THE DEPUTY PRESIDENT: All right, thank you. And Mr Fischer, then anything in reply, one week later which will be the 19th.

PN588

MR FISCHER: Yes. Thank you, Deputy President.

PN589

THE DEPUTY PRESIDENT: Is there anything further that we need to do today?

PN590

MR FISCHER: No thank you, Deputy President.

PN591

MS SPIVEY: I don't believe so, Deputy President.

PN592

THE DEPUTY PRESIDENT: Thank you, very much. We will issue those directions to provide the transcript and as soon as we've received it, whether it be next Thursday or Friday, and go from there.

PN593

MS SPIVEY: Thank you.

PN594

MR FISCHER: Thank you.

PN595

THE DEPUTY PRESIDENT: Thank you both. Good afternoon.

ADJOURNED INDEFINITELY [12.49 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

KATE EMILY HALE, AFFIRMED...................................................................... PN28

EXAMINATION-IN-CHIEF BY MS SPIVEY..................................................... PN28

EXHIBIT #1 STATEMENT OF KATE HALE DATED 29/07/2022.................. PN40

EXHIBIT #2 STATEMENT OF KATE HALE DATED 16/08/2022.................. PN40

CROSS-EXAMINATION BY MR FISCHER...................................................... PN42

THE WITNESS WITHDREW............................................................................. PN154

KENNETH CHARLES MILLER, AFFIRMED................................................ PN174

EXAMINATION-IN-CHIEF BY MR FISCHER............................................... PN174

EXHIBIT #3 WITNESS STATEMENT OF KENNETH CHARLES MILLER DATED 28/07/2022................................................................................................................................. PN185

CROSS-EXAMINATION BY MS SPIVEY........................................................ PN188

RE-EXAMINATION BY MR FISCHER............................................................ PN276

THE WITNESS WITHDREW............................................................................. PN286

SUZANNE ROGERS, AFFIRMED..................................................................... PN297

EXAMINATION-IN-CHIEF BY MR FISCHER............................................... PN297

EXHIBIT #4 WITNESS STATEMENT OF SUZANNE ROGERS................. PN307

CROSS-EXAMINATION BY MS SPIVEY........................................................ PN309

RE-EXAMINATION BY MR FISCHER............................................................ PN483

THE WITNESS WITHDREW............................................................................. PN494

STUART GLYN ROBESON MAXWELL, AFFIRMED.................................. PN519

EXAMINATION-IN-CHIEF BY MR FISCHER............................................... PN519

CROSS-EXAMINATION BY MS SPIVEY........................................................ PN541

THE WITNESS WITHDREW............................................................................. PN554

EXHIBIT #5 THREE ATTACHMENTS TO CFMMEU'S SUBMISSIONS DATED 02/08/2022................................................................................................................................. PN557

EXHIBIT #6 LETTER AUTHORED BY MR MAXWELL DATED 09/01/2009 PN565