TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
DEPUTY PRESIDENT LAKE
C2022/2666 AG2022/3077
s.739 - Application to deal with a dispute
Australian Workers' Union, The
and
Contract Resources Pty Ltd T/A Contract Resources
(C2022/2666)
Contract Resources Pty Ltd (Lytton Refinery) Queensland Enterprise Agreement 2021
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty
Application by Contract Resources Pty Ltd T/A Contract Resources
(AG2022/3077)
Contract Resources Pty Ltd (Lytton Refinery) Queensland Enterprise Agreement 2021
s.739 - Application to deal with a dispute
Australian Workers' Union, The
and
Contract Resources Pty Ltd T/A Contract Resources
(C2022/2666)
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty
Application by Contract Resources Pty Ltd T/A Contract Resources
(AG2022/3077)
Brisbane
10.30 AM, TUESDAY, 23 AUGUST 2022
PN1
THE DEPUTY PRESIDENT: Good morning. I'll take appearances, firstly.
PN2
MR G. TAYLOR: Thank you, your Honour. Taylor, initial G, for the applicant.
PN3
THE DEPUTY PRESIDENT: Yes.
PN4
MR TAYLOR: For the Australian Workers Union.
PN5
THE DEPUTY PRESIDENT: Thank you, Mr Taylor. For the respondent?
PN6
MR D. FOLLETT: Yes, Deputy President. I appear pursuant to a grant of permission on 16 August this year, for Contract Resources who is the respondent in the 739 application, and the applicant in the 217 application.
PN7
THE DEPUTY PRESIDENT: Thank you, very much, Mr Follett. I understand there's some occasional noise. I have asked for it to be attended to, but we'll see how we go this morning and if it becomes a problem we'll come up with an alternative.
PN8
We've agreed on the witnesses appearing, I understand, firstly by telephone and then live?
PN9
MR TAYLOR: Yes, your Honour. I would say, as to Mr John Cole's statement, my friend tells me that they're not intending to cross-examine him. He is apparently looking after a sick child and may be at a doctor, so he might be hard to get hold of. If you want him to be sworn in to do his examination-in-chief, I'd understand but it might be difficult.
PN10
THE DEPUTY PRESIDENT: Thank you, very much. Mr Follett, do you want to say anything?
PN11
MR FOLLETT: Yes. I indicated to my friend that we didn't have a difficulty if the statement was simply marked. It's of course a matter for the Commission as to whether or not we require Mr Cole to formally attest to the contents, and we can deal with that matter at an appropriate time.
PN12
I did have some objections to some paragraphs. I don't want to ask the Deputy President to rule on any of them or exclude them.
PN13
THE DEPUTY PRESIDENT: Right. Yes.
PN14
MR FOLLETT: I just want to identify some of the passages that we say ultimately the Commission should put no weight on, if I could do that.
PN15
THE DEPUTY PRESIDENT: Perhaps we'll deal with it in this manner. Once we've finished with the applicant's witnesses, both the ones on TEAMS or telephone, and the ones in person, we'll get Mr Cole's statement and we'll go through that, and you can provide your objections there.
PN16
MR FOLLETT: Yes.
PN17
THE DEPUTY PRESIDENT: And I will note them.
PN18
MR FOLLETT: There's some minor objections to some of the other statements on the same basis, but again, I don't ask you to exclude anything. I just want to point out the passages which we say no weight should be placed upon.
PN19
THE DEPUTY PRESIDENT: Thank you, very much, Mr Follett. Let's make a start. We've got two matters here, a Section 739, and that was the application by the Australian Workers Union, and concurrently I've determined that we're going to hear the application to vary the agreement in Section 217, given the material is very much the same, although if you want to point out at certain points where this is applicable or has a stronger weight with one application than the other, then let me know.
PN20
The way we'll proceed is, the applicant in the dispute can go first, which is the AWU. They can present their evidence and then once that's complete the respondent will be able to. In terms of concluding statements, is there a preference, Mr Taylor? Do you want to do an oral or a written submissions to close?
PN21
MR TAYLOR: Thank you, your Honour. I'd prefer to do a written but I'm flexible. It depends upon if we can get this done in one day, that would - - -
PN22
THE DEPUTY PRESIDENT: Yes.
PN23
MR TAYLOR: We understand.
PN24
THE DEPUTY PRESIDENT: Thank you. Mr Follett, what's your preference?
PN25
MR FOLLETT: I've prepared on the basis that we'll address the Deputy President orally at the conclusion of the evidence.
PN26
THE DEPUTY PRESIDENT: Yes.
PN27
MR FOLLETT: I'm ready to do that.
PN28
THE DEPUTY PRESIDENT: All right, let's see how we go today then.
PN29
MR FOLLETT: From a time and cost perspective it seems to make much more sense to us.
PN30
THE DEPUTY PRESIDENT: Yes.
PN31
MR FOLLETT: We do have tomorrow available if necessary.
PN32
THE DEPUTY PRESIDENT: Yes.
PN33
MR FOLLETT: Whilst we have a number of witnesses, and we have some difficulty with technology which will always cause us some problems my assessment is, subject to not knowing how long my friend intends to cross-examine our witnesses, that we would finish today.
PN34
THE DEPUTY PRESIDENT: Yes.
PN35
MR FOLLETT: We'll probably take up the lion's share of the day but we should finish today.
PN36
THE DEPUTY PRESIDENT: All right, let's see if we can keep that as an objective to finish today and provide oral submissions at the end, and then the matter's concluded from your perspective. It's not for me, but that would be most efficient. Good. Unless there's anything further, we'll - - -
PN37
MR FOLLETT: Just, I'll deal with this more in oral address, Deputy President, but something that fell from your mouth just then, I want to make one point about.
PN38
THE DEPUTY PRESIDENT: Yes.
PN39
MR FOLLETT: There's a distinction between the admissibility and relevance of some of the evidence that is admissible on the 217 application, but is not strictly admissible on the 739 application, particularly in relation to subjective intentions and understandings about the meaning of the clause.
PN40
The reason it's relevant on the 217 application is if it is then communicated to the other side, that then becomes an objective background fact which the Commission can have regard to, not only in construing the agreement but also in assessing the common intention of the purposes of the 217.
PN41
If subjective views, however, are not communicated they are not evidence known or reasonably available to both parties, therefore they are not objective background facts, therefore no regard can be had to them.
PN42
The existence of that statement, subjective intention, is potentially relevant 217 in measuring whether or not there's a common intention, but it's not otherwise relevant on the construction task because it remains just a subjective viewpoint. I'm not going to be asking the Deputy President to parse through it in any way and make any particular limiting rulings or anything.
PN43
THE DEPUTY PRESIDENT: Yes.
PN44
MR FOLLETT: But we just ask the Deputy President to keep that in mind, and I'll say something a little bit more about it in my closing address.
PN45
THE DEPUTY PRESIDENT: Thank you, very much, Mr Follett. Let's get started. If you want to make an opening submission - - -
PN46
MR TAYLOR: No, your Honour, I'd rather just the closing.
PN47
THE DEPUTY PRESIDENT: Thank you. Mr Tom Purchase. Did I give you his telephone number, Associate?
PN48
THE ASSOCIATE: Yes, you did.
PN49
MR TAYLOR: Your Honour, would it be any problem for me to contact Mr Purchase and just tell him there's a delay in the - - -
PN50
THE DEPUTY PRESIDENT: That would be helpful, thank you.
PN51
MR TAYLOR: Yes.
PN52
THE DEPUTY PRESIDENT: Perhaps I might just adjourn for a few minutes and wait till we've got it working.
PN53
MR TAYLOR: Thank you, your Honour.
PN54
THE DEPUTY PRESIDENT: We'll just adjourn now for a few minutes, we'll get that working and we'll commence again in, let's hope it's only five or ten minutes.
SHORT ADJOURNMENT [10.46 AM]
RESUMED [11.56 AM]
PN55
THE DEPUTY PRESIDENT: It seems that after two years of having hearings virtually, we're unable to have hearings in person, or rather, in a combination. So we'll see what we can do with the laptop. I understand Mr Follett, not a lot, you would suggest from what I can discern, not a lot turns on the evidence of the witnesses of the applicant, is that correct?
PN56
MR FOLLETT: Yes.
PN57
THE DEPUTY PRESIDENT: In a broad sense - - -?‑‑‑Yes.
PN58
You're not going to have extensive cross-examination of the witnesses, is what I - - -
PN59
MR FOLLETT: Certainly not of these three individuals.
PN60
THE DEPUTY PRESIDENT: Yes.
PN61
MR FOLLETT: A little more from Mr Wilson and Mr Thain but not a great deal.
PN62
THE DEPUTY PRESIDENT: Yes, yes.
PN63
MR FOLLETT: Because ultimately our submission will be that not a lot turns on what they say.
PN64
THE DEPUTY PRESIDENT: That's what I discerned, yes. And so I'm happy to try and find a workable alternative just to get through that, because I think from where you're coming from, a lot turns on it and I do understand that the AWU – you know, we want to hear from what they have to say, ,so we're not discounting that, but I think just understanding it is probably a – less to turn on the cross-examination of them, in which case then we can try and make an accommodation and see how that goes.
PN65
I will sit down with my Associate and we'll put the laptop up and see how we go there. I'm not sure what the fallback is. We might use one of our phones and phone them, as we did in the Mackay Courthouse a few months ago, so we'll see what we can do. So we'll call in the first witness and then I'll come down to the Bar table, or to the Associate's bench.
PN66
Mr Purchase, it's Deputy President Lake here, how are you?
PN67
MR PURCHASE: Yes, good thank you, how are you?
PN68
THE DEPUTY PRESIDENT: Just a little frustrated, but in any event let's see if we can make this work.
PN69
MR PURCHASE: Yes.
PN70
THE DEPUTY PRESIDENT: We've got you speaking through on a laptop here and so you might have to bear with us. If you can't hear the question, just ask again.
PN71
MR PURCHASE: Yes.
PN72
THE DEPUTY PRESIDENT: And we'll see how we go, okay?
PN73
MR PURCHASE: Yes, too easy, mate.
PN74
THE DEPUTY PRESIDENT: All right. See how we go.
PN75
MR TAYLOR: Mr Purchase, can you hear me okay?
PN76
MR PURCHASE: Yes. Yes, yes, kind of, mate, yes.
PN77
MR TAYLOR: Okay.
PN78
THE DEPUTY PRESIDENT: Just bear with us.
PN79
THE ASSOCIATE: Apologies, parties, I'm just ensuring that the court recorder can hear the witness. The court recorder can hear the witness. I'll just quickly swear in the witness.
PN80
Mr Purchase, please state your full name and address for the record.
MR PURCHASE: Thomas Jack Purchase, (address supplied).
<THOMAS JACK PURCHASE, AFFIRMED [12.01 PM]
EXAMINATION-IN-CHIEF BY MR TAYLOR [12.01 PM]
PN82
MR TAYLOR: Mr Purchase, it's Mr Taylor, again. Can you hear me okay?‑‑‑Yes, mate, yes.
PN83
You've given a witness statement for the purposes of this hearing, and you've done a supplementary witness statement, as well, is that right?‑‑‑Correct.
PN84
Everything you've said in those witness statements is true and correct, to the best of your knowledge, yes, that's correct.
PN85
Are there any changes that you need to make to those statements, at all?‑‑‑No.
PN86
Your Honour, I tender the evidence of Mr Purchase.
THE DEPUTY PRESIDENT: That will be exhibit 1. Thanks, very much. Now let's try cross-examination, Mr Purchase.
CROSS-EXAMINATION BY MR FOLLETT [12.02 PM]
*** THOMAS JACK PURCHASE XN MR TAYLOR
*** THOMAS JACK PURCHASE XXN MR FOLLETT
PN88
MR FOLLETT: I should just note for the record, Deputy President, that paragraph 4 of Mr Purchase's first statement, we take objection to, and as I said before, we don't ask you to exclude it but it's not admissible on the construction exercise, being essentially recording Mr Purchase's own opinion.
PN89
Mr Purchase, can you hear me okay?‑‑‑Yes, mate. Yes, kind of.
PN90
I'll do my best to speak up. My name is Mr Follett. I just wanted to ask you some questions. You've prepared two short statements?‑‑‑Yes, correct. Yes.
PN91
Had you read the respondent's aide memoir document that had been filed in these proceedings, before you prepared your statement?‑‑‑Is that the one made by Jamie Cotton be the one? Is that the one you're referring to, sorry?
PN92
No, it's the one made by Adriana Hartcher from Contract Resources on 6 June?‑‑‑No, I don't believe I've seen that.
PN93
All right. In your first statement, Mr Purchase, you deal essentially with a toolbox meeting which occurred on 19 November?‑‑‑Yes, I wasn't a hundred per cent on the date but yes, it was roughly around that time.
PN94
Yes, and you otherwise didn't say anything in particular about the bargaining, except I think you mentioned a draft agreement where the CPI references in the wage rise clause had been removed?‑‑‑Yes, correct, yes. So that was during that - - -
PN95
Yes?‑‑‑Yes, that's right.
PN96
Just on the toolbox meetings, Mr Purchase, do you have daily toolbox meetings?‑‑‑No, we have daily pre-start meetings, but toolbox meetings are roughly monthly.
PN97
There's a distinction in your mind between a toolbox and a pre-start?‑‑‑What's the difference, did you say?
PN98
Yes?‑‑‑That the pre-start meetings are more, I suppose, specific to your work crew's activities, and then if they touch on, I suppose, the meeting that the supervisors had the day before, and any kind of site – I suppose, site safety concerns or things like that, that might impact you for the day, or whatever.
PN99
All right, and to your recollection, did they negotiations for the enterprise agreement in 2021, did they come up - - -?‑‑‑Hello?
*** THOMAS JACK PURCHASE XXN MR FOLLETT
PN100
Can you hear me, Mr Purchase?‑‑‑Yes, once again, I don't know if it cut out but did you get my answer then, sorry?
PN101
Yes. Yes, we did. I just wanted to ask you, whether you recall, at all, discussions about the enterprise agreement in 2021 coming up in daily toolbox or pre-start meetings?‑‑‑Sorry, could you repeat the question?
PN102
Yes. Speaking of the daily pre-start meetings, do you recall whether the enterprise agreement was discussed in any of those?‑‑‑No, not off the top of my head. Just, it was usually kind of reminders that might have been negotiated with work, to you know, head off to (indistinct) for those bargaining tools, nothing specific.
PN103
Now in the monthly toolbox meetings do you have any recollection of how many times the enterprise agreement was discussed in those?‑‑‑No. No, not off the top of my head. We just – the (indistinct) spoken about, but nothing specific, yes, not that I can recall.
PN104
You mentioned earlier that you couldn't specifically, from your own recollection, place the particular toolbox meeting where Mr Cotton spoke as being on 19 November or otherwise, could you?‑‑‑What do you mean, sorry?
PN105
You couldn't sit here today and you couldn't be sure whether it's 19 November or some other day?‑‑‑No, but it was roughly around that date.
PN106
Yes, and it's the case, isn't it, Mr Purchase, that you don't have a very specific recollection of any of the bargaining meetings that you might have attended?‑‑‑I can – you know, obviously not word for word, but I remember most of them and the general talks on – around those meetings, nothing specifically.
*** THOMAS JACK PURCHASE XXN MR FOLLETT
PN107
Focusing on the 19 November toolbox meeting, what happened in that meeting?‑‑‑I just remember that we were broken into two groups. I think we were limited with numbers. It was during the whole COVID thing that was going down, so we were limited with numbers and we couldn't fit in those rooms, so we were separated. It was almost – the scaffolds were going to come in after lunch, and it was pretty much everyone else in the first meeting which was made up of the industrial service team, the (indistinct) head of Wagners, and the civil team. And I think it was just the changes in the (indistinct), all the changes that were highlighted in yellow were put up on the screen. We pretty much went through, page by page, of (indistinct) then it was just any highlighted area. That was kind of the yellow highlighted sections were changes that we made, I believe. Other than that it was just a chance to ask about these changes, or – yes, a chance for everyone to look at those changes together.
PN108
Who was presenting at that toolbox, Mr Purchase?‑‑‑Yes, Jamie Cotton, mate.
PN109
Do you recall what technology he was using to display documents?‑‑‑Just on a big, like a – I don't know what size it was but it was just a TV that was, I think, you know, (indistinct), like it was plugged into, like, the laptop and someone else was – it was like a PowerPoint, I guess.
PN110
Do you know who was operating the laptop?‑‑‑Yes, Beau, I think his last name's Nicholson, I only called – Beau Nicholson, I believe.
PN111
You said in your first statement, Mr Purchase, that you don't recall any documents circulating in that meeting?‑‑‑No, (indistinct) actual hard copies of any documents circulated, yes, that's correct, from memory. There was nothing handed out. I believe it was just all on the computer screen.
PN112
How long did the meeting go for?‑‑‑I (indistinct) to be honest. Maybe an hour. I might be exaggerating on that but there were – yes.
PN113
How many documents were shown on the computer screen?‑‑‑Just the one, just the EBA. I went through, pretty much, page by page, where any of the changes – I think – yes, it was page by page, I believe. It was just the whole EBA.
PN114
Do you remember what clauses were highlighted and discussed?‑‑‑There were quite a few. I think by memory, most of the pages had some kind of change to them.
PN115
Do you remember now what all of them were?‑‑‑I couldn't tell you with a hundred per cent accuracy, sorry.
PN116
Would you agree with me, Mr Purchase, that there were certain things discussed in that meeting that you, sitting here today, can't now recall?‑‑‑Yes. Yes, I'm just trying to remember things.
PN117
Yes, and would you agree with me that there were certain things that you saw on the computer screen that day that you can't now recall, sitting here today?‑‑‑No, I remember seeing the EBA being displayed, and that's it.
*** THOMAS JACK PURCHASE XXN MR FOLLETT
PN118
Yes, but you can't tell me, sitting here today, which clauses of the EBA were highlighted on the computer screen, can you?‑‑‑No, that's right.
PN119
Yes. You refer in your reply statement, Mr Purchase, to a PowerPoint presentation?‑‑‑Sorry, was this the supplementary witness statement?
PN120
Yes?‑‑‑Yes.
PN121
In paragraph 6. To your recollection was the PowerPoint Microsoft program being used, or you're not quite sure?‑‑‑Yes, I believe that's what it is. Again, I'm not the best with technology but – whether it be PowerPoint and it was just open through Word and he was going through, page by page, I couldn't tell you. I don't know how he opened it.
PN122
All right?‑‑‑All I know is it's the EBA that was on display on that screen was – yes, they went through, page by page, whether it be Microsoft Word, PowerPoint, whatever.
PN123
Did you have any direct role in the negotiating process, or the bargaining process?‑‑‑Just as a bargaining representative.
PN124
In your first statement, other than reference to a meeting or the CPI wording being moved, you didn't otherwise say anything about the negotiation process, that's right, isn't it?‑‑‑Did I have anything to say apart from that?
PN125
Yes?‑‑‑What do you mean, directly, sorry?
PN126
I was talking about your first - - -?‑‑‑(Indistinct) into it.
PN127
I was talking about your first statement, Mr Purchase, and I'm suggesting to you that other than that reference, you didn't say anything about what occurred in bargaining meetings?‑‑‑I suppose I haven't – yes.
PN128
How many were there, bargaining meetings?‑‑‑How many bargaining meetings?
PN129
Yes?‑‑‑I couldn't be accurate with you, sorry.
*** THOMAS JACK PURCHASE XXN MR FOLLETT
PN130
Do you know the dates that they were?‑‑‑I don't but I'm sure (indistinct) can provide that.
PN131
Do you know how many people were each meeting?‑‑‑Yes, there were roughly six to seven at the time, and on the very odd occasion there'd be eight.
PN132
All right, and do you remember which meetings were not attended by a certain individual?‑‑‑By what, sorry?
PN133
Did some people miss certain meetings?‑‑‑Yes, maybe on the odd occasion, people that maybe couldn't make it because of work commitments or whatever.
PN134
Did you miss any - - -?‑‑‑I don't remember who.
PN135
I'm sorry, Mr Purchase. Did you miss any meetings?‑‑‑I may have missed a couple, just due – yes. Yes, I may have missed a couple. I don't remember which ones or what dates they were.
PN136
Do you remember how many times rate increases were discussed in bargaining meetings?‑‑‑In terms of, like our – the negotiating of the actual pay rise itself, Mr (Indistinct)?
PN137
Yes?‑‑‑Yes, I'd say that would probably be – that was obviously – I mean, that's why you got to have them, so – I would say it'd be for the majority of it, it was brought up for most of the meetings.
PN138
But you'd agree with me, wouldn't you, Mr Purchase, that there was obviously a whole lot of things discussed at the bargaining meetings, that sitting here today, you don't now specifically recall?‑‑‑Not specifically, correct.
PN139
Yes. You mentioned in paragraph 7 of your reply, in the supplementary statement, Mr Purchase, that the question of CPI increases was not an issue previously?‑‑‑Yes.
PN140
You commenced employment about five to seven years ago?‑‑‑Yes, correct.
PN141
So you were employed - - -?‑‑‑Maybe a little bit longer but (indistinct) - - -
*** THOMAS JACK PURCHASE XXN MR FOLLETT
PN142
You were employed for a duration of the 2019 agreement?‑‑‑Yes but I had nothing to do with it though.
PN143
Yes. Do you remember what pay rises you received under that enterprise agreement?‑‑‑Well, I'm sure I could look it up for you, but not sitting here right now. I couldn't tell you with a hundred per cent accuracy. It might have been around two or three.
PN144
Yes. Do you remember the clause that provided for 3 per cent, 2.5 per cent and 10.5 per cent?‑‑‑Yes, roughly, if I'm – yes. Yes.
PN145
Yes, and it also had all of Brisbane December CPI (indistinct)?‑‑‑Yes, I believe that's roughly what it said, yes.
PN146
To your recollection was the CPI, at any time during the operation of that agreement whether annually or quarterly, higher than the amount specified in the enterprise agreement?‑‑‑I don't – no, I don't remember – well, I don't remember looking at it, but I don't imagine an industry or a topic brought up.
PN147
All right, nothing further, your Honour.
PN148
THE DEPUTY PRESIDENT: Anything, Mr Taylor?
PN149
MR TAYLOR: No, your Honour.
PN150
THE DEPUTY PRESIDENT: No. It's Deputy President Lake here, Mr Purchase. Thank you, very much for your evidence this morning. We have no further questions for you, so you can leave. Thank you, very much?‑‑‑All right, thanks guys.
Thank you.
<THE WITNESS WITHDREW [12.18 PM]
PN152
THE DEPUTY PRESIDENT: Who's the next witness?
*** THOMAS JACK PURCHASE XXN MR FOLLETT
PN153
MR TAYLOR: I propose to call Mr Cole. He's the one who's, at the last minute, had to go and look after a child, but we probably should try him if we can. I don't know if he's actually going to be available because he had medical appointments, but - - -
PN154
THE DEPUTY PRESIDENT: Do you wish to cross-examine him, Mr Follett?
PN155
MR FOLLETT: No, I'm content for his statement to simply be received, Deputy President.
PN156
THE DEPUTY PRESIDENT: Yes.
PN157
MR FOLLETT: I don't want to run the gauntlet with more technology issues if we don't have to.
PN158
THE DEPUTY PRESIDENT: Yes.
PN159
MR TAYLOR: That's fine. That being the case, I'll tender the evidence of Mr Cole.
THE DEPUTY PRESIDENT: We'll mark that JC01.
EXHIBIT #JC01 STATEMENT OF MR COLE
PN161
MR FOLLETT: I just note an objection at paragraph 4.
PN162
THE DEPUTY PRESIDENT: Yes.
PN163
MR FOLLETT: And also the second and third sentences of paragraph 5, which are hearsay.
PN164
THE DEPUTY PRESIDENT: So number 4, and what were the others?
PN165
MR FOLLETT: The second and third sentences of paragraph 5.
PN166
THE DEPUTY PRESIDENT: All right.
PN167
MR FOLLETT: I'm sorry, I missed the exhibit number for that.
PN168
THE DEPUTY PRESIDENT: JC01. Now next get our next – who do we propose next?
PN169
MR TAYLOR: We'll go with Mr Joseph Olexienko, if we can. How do we do this, Associate?
PN170
THE ASSOCIATE: If you could get Mr Olexienko to join the TEAMS meeting I'll add him into the call and we'll have to proceed as we did with the last witness.
PN171
MR TAYLOR: With the leave of the Commission I'll call him to (indistinct) and - - -
PN172
THE DEPUTY PRESIDENT: Yes. Yes, certainly, (indistinct) witness.
PN173
THE ASSOCIATE: Maybe I'll try calling him and we'll proceed like we did with Mr Purchase.
PN174
MR TAYLOR: Okay, I'm comfortable with that.
PN175
THE ASSOCIATE: The witnesses name again?
PN176
MR TAYLOR: Joseph Olexienko. Sorry, sir, I should say all of our witnesses will be affirmed today.
PN177
THE ASSOCIATE: Okay, yes. Thank you.
PN178
THE DEPUTY PRESIDENT: All right, Mr Olexienko, we'll get you sworn in now.
PN179
THE ASSOCIATE: Mr Olexienko, please state your full name and address for the record.
MR OLEXIENKO: My name is Joseph Olexienko, (address supplied).
<JOSEPH OLEXIENKO, AFFIRMED [12.26 PM]
EXAMINATION-IN-CHIEF BY MR TAYLOR [12.26 PM]
*** JOSEPH OLEXIENKO XN MR TAYLOR
PN181
MR TAYLOR: Mr Olexienko, it's Geoff Taylor here. Can you hear me okay?‑‑‑Yes, I can.
PN182
You've done a witness statement for us to use in these proceedings, is that right?‑‑‑Yes, that's correct.
PN183
Is everything in it true and correct, to the best of your knowledge?‑‑‑Yes, it is.
PN184
Are there any changes you'd like to make to that?‑‑‑No, there isn't.
PN185
I'll tender the evidence of Mr Olexienko.
THE DEPUTY PRESIDENT: Thank you, I'll mark that JO01.
EXHIBIT #JO01 STATEMENT OF MR JOSEPH OLEXIENKO
Mr Olexienko, it's Deputy President Lake here. Mr Follett will now ask you some questions in cross-examination.
CROSS-EXAMINATION BY MR FOLLETT [12.27 PM]
PN188
MR FOLLETT: Mr Olexienko, can you hear me okay?‑‑‑Yes, I can.
PN189
Your statement you've prepared is quite short, would you agree with that?‑‑‑Yes, it is, yes.
PN190
Now you were employed around September 2019, by Contract Resources?‑‑‑Yes, that's correct. I believe it's 19 September.
PN191
Yes. It's the case, isn't it, that you have toolbox meetings, about monthly?‑‑‑Yes, that's correct. We have them every second Tuesday of every month.
PN192
And you also have daily meetings. Do you call them toolbox meetings, or do you call them pre-start meeting?‑‑‑We have the daily pre-start meetings.
*** JOSEPH OLEXIENKO XXN MR FOLLETT
PN193
All right, and who usually presents to you in a monthly toolbox meeting?‑‑‑Normally one of the HR people for Contract Resources that will present the toolbox on the Tuesday, or it'll be someone, yes, from the office that would, yes, present it.
PN194
You know Mr Jamie Cotton?‑‑‑Yes, I do, yes.
PN195
Does he present regularly at monthly toolbox meetings?‑‑‑He always participates in the meetings, yes. He might not be the one presenting it but he will be always sitting in on it and he will always speak up if there's any questions to be answered, or anything like that.
PN196
Is it the case that he attends some daily pre-starts but not all?‑‑‑Yes, that's correct. He will sometimes do a walk-around and come to certain pre-starts in the morning, just to sort of touch base with, like, certain crews and stuff like that, and yes, he will be sometimes walking around and going to people's pre-starts, yes.
PN197
I want to take you back to the second half of 2021. Do you recall the EBA being negotiated at that point in time being discussed in daily pre-start meetings?‑‑‑We never had anything about the EBA brought up in our pre-starts, no, just in our toolboxes.
PN198
All right?‑‑‑We had a toolbox about the EBA.
PN199
Do you recall how many toolboxes the EBA came up for discussion?‑‑‑Well, there was toolboxes on, like, a safety toolbox because that's what they are, the toolboxes that we do, and there was multiple times that we did bring up the EBA, but it wasn't relevant to the toolbox. But we did have one toolbox, I believe it was in November, that was relevant for our EBA negotiations.
PN200
You refer in paragraph 7 of your statement, to a toolbox meeting where there was a discussion that the CPI had been removed from the enterprise agreement, do you see that?‑‑‑Yes. Yes, there was a part where we did go through the negotiations when we were having that toolbox, our union delo(sic) actually, they had their catch up when they have the meetings with the CR's and stuff, that it was actually taken out. But our union delo's sort of picked up on it, and kind of put it back in.
PN201
This toolbox that you're talking about where that occurred, that's different from the November toolbox you mentioned earlier, correct?‑‑‑What do you mean by that, what's (indistinct) toolbox?
*** JOSEPH OLEXIENKO XXN MR FOLLETT
PN202
It was a different meeting?‑‑‑Sorry, the toolbox we had in November was just about the things that we added into the EBA from the previous EBA that we had, so like, yes, a few things, changes, (indistinct) school working arrangements. It was just stating all the stuff that was added in - - -
PN203
Yes?‑‑‑(Indistinct) that was just started, yes.
PN204
And the toolbox meeting you're talking about in paragraph 7, that's a different toolbox meeting?‑‑‑No, that was after the – yes, so that was after the – yes, that was early this year we had a toolbox meeting and everyone came into WG11, (indistinct) call, and that was just spoken about how Jamie tried to explain to us how he thought it was – it was a quarterly CPI. That was after we signed the contract and everything like that, and they wanted to try and negotiation with us. And we put it to a vote and we had to come back later on in the day and put our votes in if we wanted to vote and negotiate, or if we wanted to go to arbitration. So the vote ended up, yes, getting voted down and, yes, it was just the arbitration now.
PN205
Yes, and this was after the dispute had first arisen, correct?‑‑‑What was that, sorry?
PN206
This was after the dispute had first arisen as to what the CPI rate actually meant?‑‑‑Yes.
PN207
All right?‑‑‑Yes, that's correct, yes.
PN208
Thank you. You give some evidence in paragraph 3 about attending a toolbox meeting in November 2021 where Jamie Cotton spoke about the enterprise agreement?‑‑‑Yes, that's correct, yes.
PN209
How many people were in that meeting, roughly?‑‑‑I think we might have had about 50 to 70 people on site. There would have been, yes, I believe at that stage it could have been a two session toolbox because we were numbered due to COVID restrictions on site.
PN210
Yes?‑‑‑I believe it was only half of the crew. It might have been 30 at that time, and 30 the other time, yes, because of the restrictions in the room.
PN211
And who presented that meeting?‑‑‑Jamie did.
*** JOSEPH OLEXIENKO XXN MR FOLLETT
PN212
How did he present it to you?‑‑‑Yes, there was – yes, obviously they've got the TV up in the toolbox room and then we had like, obviously, the EA agreement on there, and there was slowly just went through the EA agreement and everything was highlighted, which was new that got put into the agreement. Obviously all our union delegates at the time were present and obviously everyone that was in the room were asking questions and going back and forth, and stuff like that if you had any questions, and we slowly went through all the slide shows, or the pages, yes, and just so everyone on site was aware what the union delo's and Contract Resources were coming together with the EA agreement.
PN213
All right, and do you remember who had control of the computer?‑‑‑Yes, Beau Nicholson.
PN214
All right?‑‑‑Which is no longer with CR.
PN215
Okay, and how many clauses were highlighted, to your recollection?‑‑‑Just off the top of my head, I don't think there was too much to really – yes, I think – I don't know how many clauses were on the TV screen, or screen at one time but there wasn't really too much that we sort of changed in our negotiations, or in the EA agreement.
PN216
Do you remember what the nature of the changes was,
PN217
Mr Olexienko?‑‑‑(Indistinct) working arrangements, and obviously our percentage pay rise, annual pay rise that we were going for.
PN218
All right?‑‑‑And our bonus that we – yes.
PN219
Are they the only changes that you now recall?‑‑‑No, I think there was other things, more like full-timers and there was more other clauses and stuff like that, but yes, nothing that really caught my eye really.
PN220
All right?‑‑‑Nothing, yes, significant.
PN221
Obviously enough, Mr Olexienko, there were a range of things discussed in that meeting that you don't now, sitting here today, recall?‑‑‑Yes, there would be parts of that meeting that, yes, I could not recall, yes, being such long ago, but yes.
PN222
And in terms of what clauses were up on the screen and highlighted, and other things that you might have seen that day, you can't specifically recall all of them, as well, that's correct, isn't it?‑‑‑What was that (indistinct), sorry?
*** JOSEPH OLEXIENKO XXN MR FOLLETT
PN223
Yes, well, anything that you might have seen on the screen that day, you can't sit in here today and recall everything that you saw?‑‑‑Not everything, no, but there was things that caught my eye. Like, obviously the pay rise, the flexible working arrangements.
PN224
Yes?‑‑‑They were the things that, you know, I was most – a lot of people in the room were sort of wanting to know about and stuff like that, and – yes.
PN225
Thank you, I have no further questions.
PN226
THE DEPUTY PRESIDENT: Okay. Anything else, Mr Taylor?
PN227
MR TAYLOR: Nothing from us.
PN228
THE DEPUTY PRESIDENT: Thank you, very much, Mr Olexienko, for your evidence this morning. We'll (indistinct) now, thank you. You can now leave the meeting, or hang up?‑‑‑Awesome. All right, thank you guys.
Thank you, goodbye?‑‑‑Great.
<THE WITNESS WITHDREW [12.37 PM]
PN230
MR TAYLOR: Your Honour, do we want to attempt TEAMS with Mr Willman, or are there –
PN231
MR FOLLETT: I'm content with this mechanism if you are, Deputy President.
PN232
THE DEPUTY PRESIDENT: Well, we're on a roll at the moment. We're on a roll.
PN233
MR TAYLOR: All right, we're on a roll. We're smashing our way through it.
PN234
THE DEPUTY PRESIDENT: Let's see how we go.
PN235
MR TAYLOR: I'll call him and just let him know we're a bit - - -
*** JOSEPH OLEXIENKO XXN MR FOLLETT
PN236
THE ASSOCIATE: Mr Willman, please state your full name and address for the record.
MR WILLMAN: Aaron Travis Willman, (address supplied).
<AARON TRAVIS WILLMAN, AFFIRMED [12.39 PM]
EXAMINATION-IN-CHIEF BY MR TAYLOR [12.39 PM]
PN238
MR TAYLOR: Mr Willman, Geoff Taylor here. Can you hear me okay?‑‑‑Yes.
PN239
Yes. You've drafted witness statement for us that we've used in these proceedings, is that right?‑‑‑Yes, I have.
PN240
Yes. You've got a copy of that with you now?‑‑‑Yes, I've got that in front of me.
PN241
Everything in it is true and correct, to the best of your knowledge?‑‑‑Yes.
PN242
Are there any changes you'd like to make to that witness statement, anything you need to add, or take away?‑‑‑No, no changes.
PN243
I tender the witness statement of Mr Willman.
PN244
THE DEPUTY PRESIDENT: Thank you, very much. Mr Willman, it's Deputy President Lake here. You're now going to have some questions from Mr Follett.
PN245
MR WILLMAN: Yes.
THE DEPUTY PRESIDENT: And I'll mark that AW01.
EXHIBIT #AW01 STATEMENT FROM MR AARON WILLMAN
CROSS-EXAMINATION BY MR FOLLETT [12.41 PM]
PN247
MR FOLLETT: Mr Willman, can you hear me okay?‑‑‑Yes, I can.
PN248
*** AARON TRAVIS WILLMAN XN MR TAYLOR
*** AARON TRAVIS WILLMAN XXN MR FOLLETT
You were employed first by Contract Resources in about February 2020?‑‑‑Yes, that's correct.
PN249
In your witness statement at paragraph 3, you've referred to attending a toolbox meeting in mid November 2021?‑‑‑Yes.
PN250
Do you recall the date of that meeting?‑‑‑No, I don't recall the exact date. I'm pretty sure it was around the start of November, early to mid November.
PN251
All right, and you had monthly toolbox meetings, is that the case?‑‑‑Yes, every second Tuesday of every month was the toolbox meeting.
PN252
And on occasions – well, at those monthly toolbox meetings, Mr Jamie Cotton would usually attend?‑‑‑Yes, I don't remember him not really being at a toolbox meeting.
PN253
I take it from that, he was in most toolbox meetings?‑‑‑Yes, he was in pretty much all of them, maybe not up the front running them, I believe, in there.
PN254
Yes?‑‑‑He normally just sits in the back and, I suppose, answers questions when there's a bit of haze around them or whatever.
PN255
Then you also have daily pre-start meetings, is that correct?‑‑‑Yes.
PN256
They're usually conducted by supervisors?‑‑‑Yes, that's correct.
PN257
And occasionally Mr Cotton would attend some of those?‑‑‑Yes, occasionally.
PN258
Do you recall how many toolbox meetings at which the enterprise agreement was discussed?‑‑‑No, not exactly, I wouldn't.
PN259
In the toolbox that we referred to in mid November, do you recall where that was?‑‑‑Yes, at WG11.
PN260
That's the room?‑‑‑Yes, the room was usually at WG11, where we have our toolbox meetings.
*** AARON TRAVIS WILLMAN XXN MR FOLLETT
PN261
Do you recall roughly how many people were in that meeting?‑‑‑There were two separate groups and I think we were the second group, so there probably would have been about 30 odd people.
PN262
You say in your statement at paragraph 4, that Mr Cotton displayed a PowerPoint presentation?‑‑‑Yes, most of the time there was always something just up on the screen, you know, from (indistinct) off his PC or some paper or whatever, just so he can see what he was reading.
PN263
You said, 'most of the time.' Do you have any specific recollection of what happened in this mid November meeting and the display process?‑‑‑The display that it had on there, sort of, from what I remember, was just stuff that was put in and new stuff that was highlighted, and they were just going through, you know, mostly discussing that sort of stuff. Not a lot of it had to do with casual employment. A lot of it was fixing up the agreement for the stuff in there with the flexible working agreement and all that sort of stuff.
PN264
You're referring to changes to the enterprise agreement, are you?‑‑‑Yes.
PN265
How was it you were seeing that document?‑‑‑Just the – like a brief description of going through everything that was – that had been changed in it.
PN266
But how was that displayed?‑‑‑From what I remember it was up on the – like, the TV.
PN267
Do you remember when Mr Cotton was using the Microsoft PowerPoint program, or you don't remember how it was displayed?‑‑‑No, I think it did. I always goes through a, like a Microsoft PowerPoint presentation, sort of thing.
PN268
There was certainly a computer being used?‑‑‑Yes.
PN269
All right, and was Mr Cotton navigating that computer, or was someone else doing it?‑‑‑No, someone else was navigating the computer.
PN270
Do you remember who that was?‑‑‑Beau Nicholson, or (indistinct).
PN271
And how many clauses were highlighted, to your recollection?‑‑‑I couldn't tell you to be honest.
*** AARON TRAVIS WILLMAN XXN MR FOLLETT
PN272
What were the nature of the clauses that were highlighted?‑‑‑I'm not too sure, mate.
PN273
There was obviously a range of things said in that meeting that sitting here today, Mr Willman, you don't now remember?‑‑‑I remember. I couldn't tell you, like, the exact clauses that were amended in there but – so yes.
PN274
Yes, but a fair - - -?‑‑‑I mean, I obviously don't remember every single dot point they put up on that screen.
PN275
Yes. There was obviously some clauses that were discussed and you, just sitting here today, don't remember anything about that?‑‑‑Sorry, can you say that again?
PN276
Yes, well, for example, there were some clauses that might have been discussed that sitting here today, you just don't have any recollection about that?‑‑‑I suppose there could be some clauses, yes, that I wouldn't have a recollection about.
PN277
Equally, there would have been some things that were shown on the TV screen that you just don't now, sitting here today, remember, correct?‑‑‑Yes, there could be something, yes.
PN278
Yes. Nothing further, your Honour.
PN279
THE DEPUTY PRESIDENT: Thank you, very much.
PN280
MR TAYLOR: Nothing from me, your Honour.
PN281
THE DEPUTY PRESIDENT: Thank you, very much for your evidence. You can now leave, thank you?‑‑‑Thank you.
Thanks, very much.
<THE WITNESS WITHDREW [12.48 PM]
PN283
MR TAYLOR: Your Honour, we're done with the remote witnesses. You may wish to resume your position.
PN284
THE DEPUTY PRESIDENT: Yes.
*** AARON TRAVIS WILLMAN XXN MR FOLLETT
PN285
MR TAYLOR: Shall I get - - -
PN286
THE DEPUTY PRESIDENT: In terms of the program - - -
PN287
MR TAYLOR: I'm content with a break if we could get it.
PN288
THE DEPUTY PRESIDENT: Do you want to have a short break now for lunch, and then have the witnesses attend then? Given the massive delays this morning I'm just conscious of the time.
PN289
MR FOLLETT: Yes, I'm not as confident as I was this morning that we'll finish today, but we've got the second day available and that would certainly be our very strong preference, and it's there for that reason, so - - -
PN290
THE DEPUTY PRESIDENT: Yes. Is half an hour suitable or should we make it probably half past one?
PN291
MR FOLLETT: I think half past one might be a good time.
PN292
THE DEPUTY PRESIDENT: All right, we'll adjourn till half past one, and then again we'll be back at the (indistinct) and hopefully it will be a bit smoother.
LUNCHEON ADJOURNMENT [12.49 PM]
RESUMED [1.48 PM]
PN293
MR FOLLETT: Could I just extend an apology to the Commission and to my colleague about our late return back, Deputy President. We had some difficulty with our lunch.
PN294
THE DEPUTY PRESIDENT: Okay. I hope you enjoyed it anyway.
PN295
Our ambitious target of finishing today is getting stretched, but let's see how we go. There's two more witnesses from the applicant, and they're in person, as I understand.
PN296
MR TAYLOR: Yes, your Honour. Mr Wilson. Associate, do you want me to get him in?
PN297
THE DEPUTY PRESIDENT: Okay, yes, so let's call him in.
PN298
THE ASSOCIATE: Mr Wilson, please state your full name and address for the record.
MR WILSON: James Gilmore Wilson, (address supplied).
<JAMES GILMORE WILSON, SWORN [1.49 PM]
EXAMINATION-IN-CHIEF BY MR TAYLOR [1.49 PM]
PN300
THE DEPUTY PRESIDENT: Good afternoon, Mr Wilson?‑‑‑Your Honour.
PN301
Thank you. Over to yourself, Mr Taylor.
PN302
MR TAYLOR: Mr Wilson, you've drafted a witness statement for these proceedings, is that right?‑‑‑Yes.
PN303
And you've drafted a supplementary witness statement, as well, is that correct?‑‑‑Yes.
PN304
Is everything in them true and correct, to the best of your knowledge?‑‑‑Yes.
PN305
There's no changes or additions you'd like to make?‑‑‑No.
PN306
No. Your Honour, I tender the witness statements for Mr Wilson.
THE DEPUTY PRESIDENT: Thank you, Mr Taylor. JW01, we'll call that.
EXHIBIT #JW01 STATEMENT OF MR JIM GILMORE WILSON
CROSS-EXAMINATION BY MR FOLLETT [1.50 PM]
PN308
THE DEPUTY PRESIDENT: Thank you, very much. All right, cross-examination, Mr Follett?
PN309
*** JAMES GILMORE WILSON XN MR TAYLOR
*** JAMES GILMORE WILSON XXN MR FOLLETT
MR FOLLETT: I just note for the record, Deputy President, that paragraph 9 of the first statement, we object to.
PN310
THE DEPUTY PRESIDENT: Yes.
PN311
MR FOLLETT: On the same basis as the (indistinct).
PN312
Good afternoon, Mr Wilson?‑‑‑Good afternoon.
PN313
In your first witness statement, Mr Wilson, you give a positive account of recall at paragraphs 7 and 8 - - -?‑‑‑Mm-hm.
PN314
About CPI being the clause wording being removed from the draft agreement?‑‑‑(No audible reply)
PN315
And the remaining paragraphs of that statement, you're talking about things that you don't recall happening. That's correct?‑‑‑Yes.
PN316
At the time of that statement did you have any positive recollection of the bargaining meetings?‑‑‑Yes, I remember participating in the bargaining meetings, yes.
PN317
You say in paragraph 10 of that first statement, that to your recollection you weren't to all of them?‑‑‑Look, as far as I recall, I went to all of them. There were quite a few. I think we were meeting weekly for quite a number of months, so look, I may have missed – there might have been one that I was unable to attend, but as far as my recollection is, I attended all of them, yes.
PN318
Yes, and quite a lot of meetings. You don't say, sitting here today that you remember everything that happened in every single meeting, obviously?‑‑‑No.
PN319
And equally, it's possible, isn't it, that something that you might have recalled happening in one particular meeting, might have in fact happened in another meeting?‑‑‑Certainly.
PN320
In your second witness statement – do you have that in front of you?‑‑‑Yes, I have.
*** JAMES GILMORE WILSON XXN MR FOLLETT
PN321
In paragraph 4 to 6, and also paragraph 8, you refer to some discussions about the company's 1.5 per cent pay offer, which was for the first year of the 2021 agreement, and you refer to discussions about competitors?‑‑‑Yes.
PN322
And you mention Monadelphous and you refer also to a spreadsheet, and as I understand it, that had some competitors on the sheet and a reference to what the company was aware of that their pay rises were?‑‑‑Yes, a sort of a breakdown of pay rates across – it was CR's, Monadelphous, and I believe his was the other one used.
PN323
All right?‑‑‑Yes.
PN324
In paragraph 8 of that second statement, you place that meeting – well, I'll ask you. Do you place that meeting of that discussion in the same meeting that Mr Cotton refers to in his witness statement in November 2021, where he refers to a discussion about CPI and the reference to the quarterly sheet?‑‑‑Yes. So, my only recollection of the discussion of the 1.5 per cent pay offer and the justification for it was in that meeting as a result of, you know, remaining in the same band as the – yes, the perceived competitors.
PN325
So you only recall one meeting, and that was the one with the competitors and the spreadsheet?‑‑‑Yes, that's right, yes.
PN326
Do you agree with me that that discussion about competitors and the display of the spreadsheet was towards the end of bargaining, would have been slightly before 19 November?‑‑‑Yes, I would imagine so, yes.
PN327
Because 19 November was when the company took the EA to the employees?‑‑‑And so that would have – obviously I wasn't at that meeting with the employers.
PN328
No?‑‑‑But that would have been as they were getting close to putting an agreement out to ballot, I would imagine.
PN329
Yes, and did you read in Mr Kuun's statement, a reference to a meeting that Contract Resources had had with Ampol in early November?‑‑‑I don't recall that in his statement, sorry.
*** JAMES GILMORE WILSON XXN MR FOLLETT
PN330
No. Did you know at that point in time that Contract Resources had met with Ampol?‑‑‑So, Contract Resources were meeting pretty regularly with Ampol because they – you know, as the principal maintenance contractor on site. Their contract was coming up for expiration date, so they were in discussions about renewing it.
PN331
Okay?‑‑‑So, look, I think I sort of remember Mr Cotton saying they had a sort of regular Friday afternoon meeting with someone, whoever from Ampol was responsible for administering the contract.
PN332
But to your knowledge they were conveying to you – when I say, 'they', Contract Resources were conveying to you, they were in discussions with Ampol at around the same time - - -?‑‑‑Yes.
PN333
Including, presumably, about wage rates - - -?‑‑‑Yes.
PN334
And who was asking for what?‑‑‑Absolutely, yes.
PN335
It's possible, isn't it, that what Mr Cotton says about the existence of a bargaining meeting where the one point – do you remember 1.3 per cent being raised?‑‑‑I don't remember 1.3 per cent being raised, no.
PN336
Is it possible that it occurred and you just don't remember it?‑‑‑Look, it is possible. When you're bargaining – you know, when you're a union organiser doing enterprise bargaining negotiations there's a lot of discussions as you put forward – you know, I don't need to explain the full process, I'm sure, but you know, you put through claims, and there's some claims that your members are more passionate about or more interested in than others, and the one thing that members are always interested in, almost always above else, is how much money they're going to get.
PN337
Yes?‑‑‑You know, how much the pay increase is going to be, so you know, if there'd been a discussion of 1.3 per cent, you know, I assume I would recall that.
PN338
Yes. You've read what Mr Cotton has said about that particular meeting?‑‑‑Yes, I have.
PN339
That the 1.3 per cent was the September quarterly CPI inflation figure at that point in time?‑‑‑I may have read that statement, yes.
*** JAMES GILMORE WILSON XXN MR FOLLETT
PN340
You're not denying that occurred, you're just saying that you don't recall that it occurred?‑‑‑Look, I don't recall that it occurred, yes, but as I said, I'm pretty confident that, you know, a discussion around wages and a discussion around the meaning of that clause, that would have been something that was, you know, foremost in my memory.
PN341
Yes, but what would have been more foremost in your memory was what the actual negotiated figure was, correct?‑‑‑Well - - -
PN342
The actual figure?‑‑‑Yes. Perhaps, yes.
PN343
You were asking for 3, 2.5 and 2.5?‑‑‑That was from the previous agreement. That's what we had in that, yes.
PN344
It follows, I think from some of your answers, Mr Wilson, that your evidence is you either didn't know, or you don't now recall whether you knew, what the annual CPI figure was in September?‑‑‑No.
PN345
No. Do you remember Mr Thain asking where the company had got the 1.3 per cent figure from?‑‑‑No, I don't, no.
PN346
Do you remember Mr Cotton showing a printed copy of the September quarterly sheet from the Queensland statistician's office?‑‑‑I don't, no.
PN347
When you say you don't remember, it means it might have happened but you don't remember?‑‑‑I think it's very unlikely that it did. I mean, anything's possible and so - - -
PN348
But you're not ruling it out?‑‑‑No.
PN349
And - - -?‑‑‑But certainly in any bargaining meeting I attended, no one was presented with a quarterly - or a document about CPI.
PN350
All right, and do you recall reading that Mr Cotton attributed a statement from you - - -?‑‑‑I do, yes.
PN351
Where he said that you said to Mr Thain that you agreed?‑‑‑Yes.
PN352
That's what occurred, isn't it?‑‑‑Do I recall that - - -
*** JAMES GILMORE WILSON XXN MR FOLLETT
PN353
Yes?‑‑‑In reading it? Yes, I do. Yes, that – it never happened.
PN354
It never happened?‑‑‑No, it definitely didn't happen. I would think that would be reflected in the minutes, had it happened, as well, but I don't believe it is.
PN355
You've seen the minutes, have you?‑‑‑Well, no one's seen any minutes, as far as I understand, so - - -
PN356
Were the minutes ordinarily sent to the union?‑‑‑Yes, or to all bargaining representatives, yes.
PN357
So you would have seen them at some point in time?‑‑‑So, at some point the minutes that are – see, Contract Resources initially had someone as a sort of national HR person, but she left the organisation quite early on in negotiations, so I think we might have got three or four sets of minutes, but after that there was no more minutes, no.
PN358
Right. Now you ended up accepting as a headline wage increase figure, 2, 2 and 2, that's correct?‑‑‑Yes, that's correct, yes, sorry.
PN359
Sorry, you're nodding?‑‑‑I understand.
PN360
THE DEPUTY PRESIDENT: We actually need it on the record?‑‑‑Yes.
PN361
We need to hear your answer?‑‑‑Yes.
PN362
I know you understand that but – that's fine.
PN363
MR FOLLETT: What I want to suggest to you, Mr Wilson, is that you were well aware of what the annual CPI figure was at that point in time because you'd been shown the sheet and it referred to it being 3.9 per cent, that's correct, isn't it?‑‑‑No, I don't – no, I wasn't aware at the time and it wasn't shown on the sheet, no.
PN364
If you had have known that the annual CPI was tracking at that point in time, at 3.9 per cent there's no way you would have accepted 2 per cent, is there?‑‑‑It's not up to me to accept offers. The members vote on – you know, the members are the ones that vote the agreement up. I don't really have a say in what's accepted. I just, you know, obviously with the delegates' and the voting representatives' feedback information to the members and then I'll allow them to guide me, yes.
*** JAMES GILMORE WILSON XXN MR FOLLETT
PN365
I assume the members didn't voluntarily agree to put 2 per cent as a pay increase, instead of 3 per cent which is what was in your log of claim?‑‑‑No, they didn't volunteer that, so that's right. So that was as a result of negotiations they accepted that offer.
PN366
Yes, and what I want to suggest to you is that you knew that the CPI figure was the quarterly figure because at
PN367
1.6 per cent, that was lower than what was ultimately agreed at 2 per cent?‑‑‑Sorry, could you repeat that question?
PN368
Yes?‑‑‑Yes.
PN369
I want to suggest to you that you knew that the CPI figure being referred to in the enterprise agreement was the quarterly December figure because you knew at the time that that figure was 1.6 per cent, which was less than the 2 per cent?‑‑‑Yes. No, that's not true.
PN370
All right, and - - -?‑‑‑But I would have assumed in an agreement with an annual pay rise, the CPI clause referred to the annual CPI rate.
PN371
I understand what you say you would have assumed. But equally, what I'm suggesting to you is that there's no way you would have accepted a negotiated outcome of 2 per cent whilst CPI at that time was running at almost double 2 per cent?‑‑‑Well, that's what the members – you know, we would have accepted it if that's what the members chose to accept, yes.
PN372
I see. You didn't say anything about this in your first witness statement though, did you?‑‑‑No, I didn't.
PN373
Nothing further, Deputy President.
PN374
THE DEPUTY PRESIDENT: Thank you.
PN375
Mr Wilson, just a couple of questions?‑‑‑Sure.
PN376
You're not going yet. Do you have the materials - you don't have the materials in front of you?‑‑‑I have the witness statements, yes.
*** JAMES GILMORE WILSON XXN MR FOLLETT
PN377
The document that was at the time called CPI September Quarter, have you got a copy of that there?‑‑‑I don't have a copy of it, sir, no.
PN378
MR FOLLETT: I've got a court book.
PN379
THE DEPUTY PRESIDENT: Thanks. It's JC4. Now, as I understand - because you hadn't got to December - you're bargaining?‑‑‑Yes.
PN380
A lot of issues being discussed and, towards the end, it gets to numbers, doesn't it? It always does?‑‑‑That's correct, your Honour, yes.
PN381
You start off with the easy things and then you get to the hard stuff. There's a discussion about numbers and the CPI - this document was at least circulated or a copy was around, was it, that was shown to you or what - - -?‑‑‑I don't recall seeing one during the bargaining meetings. I mean - - -
PN382
Mr Associate - - -
PN383
MR FOLLETT: Mr Associate - - -
PN384
THE WITNESS: Yes, that's it, yes.
PN385
THE DEPUTY PRESIDENT: As an example - - -?‑‑‑I have, subsequent to those negotiations, seen a copy of that, yes, but I don't recall seeing a copy of that during bargaining at all, yes.
PN386
Even the discussions about that clause, there was no discussion, you say, about what the number was?‑‑‑No, the only discussions about that clause - one of our claims was to, you know, maintain the - roll the agreement over, sort of.
*** JAMES GILMORE WILSON XXN MR FOLLETT
PN387
Yes, don't want to go backwards?‑‑‑And change the things we wanted to change, effectively, and so there was no discussion about that actual - the wording of that clause 2.6. Now, obviously there was discussion about the quantum, but - and, you know, the only discussion, as I think is in my statement, was when we - at the sort of start of bargaining, you know, the company HR representative put the document up on the projector screen sort of thing for us all to refer to with the tracked changes, and that reference to the December inflation had been removed from that working copy. When one of the bargaining reps pointed out that it was removed, it was just put back in at the next meeting with no further discussion, as I recall.
PN388
How did the number 2 per cent get arrived at?‑‑‑What was the - - -?‑‑‑Well, it was, I mean, through to‑ing and fro‑ing, but the main issue amongst our membership was a lot of them had been working in that capacity at Ampol, previously Caltex, for a while. Previously, a lot of them had been employed by Giovenco and then Contract Resources came in with, you know, a lower paying agreement that they were able to win the work away from Giovenco with.
PN389
So, when we got to that sort of 2 per cent figure, there was a section of our members that wanted to take industrial action and take it further, but there was also a section of it that said, 'You know, things are pretty good and, obviously, the risk of the company losing the contract' then us to go through again what they'd gone through when Giovenco had lost it to Contract Resources, a lot of our members, the majority of our members, made the decision that, you know, they were happy enough with that 2 per cent figure if it meant, you know, maintaining the contract and maintaining, you know, sort of, the job, you know, where it was sort of thing, yes.
PN390
THE DEPUTY PRESIDENT: In that changeover and any other changeover, isn't it the case that most of the members, most of the workers, stay the same; the contractor changes?‑‑‑Yes, that's correct.
PN391
A bit like mining, oil, the same?‑‑‑That's right, yes. Certainly a lot of my members out there now working for Contract Resources were working for Giovenco before that contractor changed, I think in 2015.
PN392
Some of them might perceive little risk in terms of taking industrial action because who cares who the company is?‑‑‑That's a good point. I think - I'm not sure of the exact figures, but when they went from Giovenco to Contract Resources, it was, on average, about a 10 per cent pay cut that, you know, the guys working for Giovenco, and the majority of them came back because, you know, that was the job and it was - their life was set up around it.
PN393
So, there was a concern that the same thing would happen again and they - you know, we'd be sort of back to where we were before the 2019 agreement was finalised, or even, you know, further behind than that, sort of thing, yes. So, yes, I don't think most of the members were concerned about losing the job, what they were concerned about was losing their conditions that they'd sort of, you know, bargained for in the previous six years.
*** JAMES GILMORE WILSON XXN MR FOLLETT
PN394
THE DEPUTY PRESIDENT: Yes, because they'd have to renegotiate with the new employer?‑‑‑Yes, that's right, yes.
PN395
Were you involved in the previous agreement that was rolled over?‑‑‑I was, yes.
PN396
The CPI was new to that in 2019, wasn't it?‑‑‑Yes, yes. Without going sort of too deep into the reasons, your Honour, the agreement that they'd done that sort of allowed them to win the work, none of the members out there had any say or right. It was sort of they did a state-wide agreement, they had sort of a few people doing, you know, contract work around Queensland. That got voted up with classifications. The AWU wasn't involved in negotiations, it was just purely between the company and those - I think they had 80 employees that voted on it, but I'm not sure. That agreement came into effect. It had classifications that covered the work at Lytton. We had a Lytton-specific agreement back then.
PN397
Then when it came time to renegotiate that agreement, the company asked us to hold off because there was a shutdown going on and they wanted to get that done and our members who would have been involved in bargaining said, 'We'd rather get the shut done so we can get the, you know, additional overtime' and that sort of thing, and then when we came to sit down, effectively they said to us, 'Hey, your agreement's expired.' I forget the section of the Fair Work Act that applies, but I think it says to the effect of you can have two agreements that cover the same work; once one expires, the other will automatically apply.
PN398
So, that 2019 agreement, there was, I guess, a lot of history to that that a lot of the guys - my members - felt they didn't really get a say in it, you know, they didn't - you know, weren't really happy with how it ended up. So, there was a lot of to‑ing and fro‑ing with that agreement, there was quite a bit of industrial action that took place as well and, you know, to the extent, through the CEO, met with myself and the bargaining reps to sort of try to get things resolved and, you know, one of the things at the very end, you know, was - we just sort of threw in there at the end - this was when, you know, inflation was very low then, you know, it was below 2 per cent annually and even below 1.5 annually, I think in some years - so we just sort of threw that in at the end to say - just to give us a bit of cover and also be able to go back to the members and say, 'Here's, you know, sort of another thing we've got' sort of thing, you know, yes.
PN399
That's how that clause came about. There wasn't really any real discussion about how - - -
*** JAMES GILMORE WILSON XXN MR FOLLETT
PN400
THE DEPUTY PRESIDENT: No real science?‑‑‑Yes, that's right, yes, and the reason for wording it as December was the pay rise comes in in January, so that's the most accurate, you know, annual figure of, you know, cost of living increase. That's why we chose December as, you know, the figure to be used for the annual.
PN401
Were you involved in the meetings that led to the arbitration today, the dispute process, I guess?‑‑‑Yes, I was in some of them, yes, yes.
PN402
What is your recollection of how the disputes process was engaged or why was it engaged?‑‑‑Well, so once those figures came out - I think it was around February, once, you know, those - every quarter they put out the inflation over both a quarterly and an annual figure.
PN403
Yes?‑‑‑So when that came out, my members brought it to Mr Thain, our delegate's, attention that inflation, I think it was 4.3 per cent annually at December, so, you know, as a result of the clause in the agreement, they were, you know, obviously asking about when that additional 2.3 per cent would be applied to their rates of pay.
PN404
I think initially Mr Thain spoke to Mr Cotton about it. Then we sort of had some discussions. It took a while, sort of, to get - you know, for Mr Cotton to be available to have a chat with us, you know, and I just sort, of, you know, I had sort of, I guess, discussed it with him - I can't remember if it was via email or on the phone - but we sat down at the refinery. There's a little what used to be an old cricket oval out there that's now a car park, but there's the old cricketers club, which is where we sort of meet, and we met with Mr Cotton, myself and Mr Thain, about that figure. He said he thought it was a quarterly figure. I said we'd always understood it to be an annual figure. I said, you know, honestly that's what we all believed when we put it in sort of thing and, you know, we sort of said, 'Do you have anything that' - you know - 'Can you show us anything that says that it's a quarterly figure?' At that point, he sort of said - - -
PN405
THE DEPUTY PRESIDENT: Here we are?‑‑‑Indeed.
PN406
That September document from the QGSO, the Queensland Government Statistician's Office, the September one - you've got a copy there - shows Brisbane at 1.3 quarterly. The top line says, 'Capital City September Quarter 2021' and then says, 'Quarterly 1.3, Annually 3.9'?‑‑‑Yes.
PN407
That was the document that was circulated prior to the agreement being made?‑‑‑Okay, yes.
*** JAMES GILMORE WILSON XXN MR FOLLETT
PN408
That's my understanding. Is that the case?‑‑‑Look, honestly, your Honour, I don't remember seeing this document during negotiations. They've mentioned in their evidence there was a toolbox meeting amongst the workforce where they distributed it. Obviously, I wasn't at that meeting because that was you know, I assume a sort of routine meeting that happens between the supervisors and the workforce.
PN409
Under that 'Capital City September Quarter 2021', which is the heading, it does then have a quarterly and annual figure for Brisbane and then - - -?‑‑‑Yes.
PN410
But both that quarterly and annual fit under September quarter 2021, don't they?‑‑‑Yes, they do.
And that's why we're here. In terms of - no, I think I'm fine, thank you very much. Back to yourself, Mr Taylor.
RE-EXAMINATION BY MR TAYLOR [2.15 PM]
PN412
There's been a couple of questions from the Bench and my friend about how you arrived at that 2 per cent pay rise and how the union might have settled for it. You say the members ultimately settled for it. Would you have been comforted by the idea that it was underpinned by an annual CPI pay rise that at least kept people on par with inflation?‑‑‑Certainly, yes.
PN413
Nothing further.
PN414
THE DEPUTY PRESIDENT: Mr Follett, I just want to give you the opportunity, because I asked a number of questions.
PN415
MR FOLLETT: No, nothing.
PN416
THE DEPUTY PRESIDENT: Nothing arising? Okay, thank you.
Thank you very much for your attendance this afternoon?‑‑‑Thank you, your Honour.
<THE WITNESS WITHDREW [2.16 PM]
PN418
THE DEPUTY PRESIDENT: Are we ready for Mr Thain? Yes?
PN419
THE ASSOCIATE: Please state your full name and address for the record.
*** JAMES GILMORE WILSON RXN MR TAYLOR
MR THAIN: Jaime Peter Thain, (address supplied).
<JAIME PETER THAIN, AFFIRMED [2.17 PM]
EXAMINATION-IN-CHIEF BY MR TAYLOR [2.17 PM]
PN421
Mr Thain, you have prepared a witness statement for me, including an annexure about the relevant clause in dispute called JT1; is that correct?‑‑‑That's correct.
PN422
Is everything in that witness statement true and correct to the best of your knowledge?‑‑‑Yes.
PN423
Are there any changes you would like to make to that?‑‑‑No.
PN424
You have also prepared a supplementary witness statement; is that right?‑‑‑Correct.
PN425
Everything in that is true and correct to the best of your knowledge?‑‑‑Yes.
PN426
And no changes to be made to it?‑‑‑No.
PN427
I tender the witness statements of Mr Thain.
THE DEPUTY PRESIDENT: Thank you very much. We will name that JT01. Thank you.
EXHIBIT #JT01 WITNESS STATEMENTS OF JAIME THAIN
Cross-examination?
CROSS-EXAMINATION BY MR FOLLETT [2.18 PM]
PN430
I just note, in the first statement, Deputy President, paragraphs 7 and 12 are hearsay.
PN431
*** JAIME PETER THAIN XN MR TAYLOR
*** JAIME PETER THAIN XXN MR FOLLETT
THE DEPUTY PRESIDENT: Sorry, you might need to speak up. I'm not sure whether we're capturing everything.
PN432
MR FOLLETT: Paragraphs 7 and 12 of the first statement are hearsay. We object to them on that basis, consistent with what I said earlier, Deputy President, treat them as matters of weight.
PN433
THE DEPUTY PRESIDENT: It's 7 and 12 or 7 to 12?
PN434
MR FOLLETT: It's 7 and 12.
PN435
THE DEPUTY PRESIDENT: Yes, all right, thank you.
PN436
MR FOLLETT: Mr Thain, you have been employed by Contract Resources since about 2017?‑‑‑Correct, October 2017, yes.
PN437
You were not involved in negotiations for the 2019 enterprise agreement?‑‑‑No.
PN438
You say in paragraph 9 of your first statement that you were an AWU negotiator for the 2021 enterprise agreement?‑‑‑Correct.
PN439
Did you start that bargaining process as an employee representative?‑‑‑Yes.
PN440
Then you took over the role as AWU delegate when Mr Cole stepped down?‑‑‑Correct.
PN441
That was about September 2021?‑‑‑To my recollection, around that time, yes.
PN442
Quite early?‑‑‑Yes, in the piece, yes.
PN443
Do you recall how many bargaining meetings there were?‑‑‑If I can look at my notes, I'd probably be able to give you a more accurate reading of it.
PN444
Sitting here, without looking at your notes, you don't have a recollection?‑‑‑Well, I can - off the top of my head, I'd say about between 10 to 15.
*** JAIME PETER THAIN XXN MR FOLLETT
PN445
All right. I think that's sufficient for the moment?‑‑‑Okay.
PN446
Other than looking in your diary, you don't recall the specific dates upon which those meetings occurred?‑‑‑Not looking at my diary, no. I'd have to look at those specific dates because it was pretty sporadic, the dates.
PN447
Equally, without looking at your diary or any notes that you might have had, you don't have a perfect recollection of what was discussed in each and every one of those meetings?‑‑‑I have a fair recollection, but the dates and what was said are two different things. I remember the important information that was said in most of the meetings, yes.
PN448
Yes, but I think what I took from that answer, Mr Thain, is that you would have a recollection of certain things that were discussed, certain topics, but placing that discussion in any particular meeting is a bit more difficult?‑‑‑It depends on how you put it because earlier in the piece, I remember certain things because we worded it by dot point b the log of claims, so in order of log of claims because it was constantly changing, no, I couldn't completely agree with that.
PN449
All right. But it's possible, isn't it, that you recall some things occurring in one meeting when they might have happened in another meeting?‑‑‑Quite possible, but I'm fairly true to my word that I remember it happening at a certain meeting. Is there any exact thing we're talking about here or are we just - - -
PN450
I will come to it in a moment, but just speaking generally at the moment?‑‑‑Okay.
PN451
Now there were daily prestart meetings?‑‑‑Is this just for my job or - - -
PN452
Yes?‑‑‑Not to do with EBA talks?
PN453
Yes?‑‑‑Yes, daily prestart meetings, yes.
PN454
Was the EBA ever discussed in daily prestart meetings?‑‑‑Only in regards - nothing about thorough facts, it was just in regards to when the meetings were taking place.
PN455
Then there were monthly toolbox meetings?‑‑‑Yes.
*** JAIME PETER THAIN XXN MR FOLLETT
PN456
Just in relation to the daily prestart meetings, they were mostly conducted by supervisors?‑‑‑Correct.
PN457
Mr Cotton might have attended some from time to time, but not all of them?‑‑‑Maybe one in that whole time of the EBA negotiations, yes.
PN458
The monthly toolbox meetings, Mr Cotton would attend all of those?‑‑‑The majority of the time. Unless there was something that he had to be pulled aware for, the majority of the time, he was there, yes.
PN459
And some of them he would specifically address, some of them he might answer some questions, and some of them he might not say a whole lot?‑‑‑Yes, broadly, yes.
PN460
In terms of the bargaining meetings, again without looking at your notes or any minutes or anything, you couldn't specifically identify who was in each and every one of those meetings?‑‑‑Yes, I could.
PN461
You could?‑‑‑Yes.
PN462
Well, without being able to recall when all the meetings were, how is it that you can say, despite that, that you can recall exactly who was in them?‑‑‑Because the majority of the time it stayed the same people, apart from when they were sick or away.
PN463
All right?‑‑‑So, I couldn't give you the exact dates of people who were sick or away, but I could tell you the majority of the time they were there.
PN464
The majority of the time, the attendees were effectively the same?‑‑‑Yes.
PN465
One of the things that occurred right at the beginning of the bargaining process was - and this was before you'd even prepared your log of claims - was that you had a separate discussion with Mr Cotton; do you remember that?‑‑‑In regards to what?
PN466
Mr Cotton approached you and suggested that you needed to be a bit more realistic with your wage claim than what had occurred in 2019. Do you remember that?‑‑‑So this is before our log of claims was lodged?
*** JAIME PETER THAIN XXN MR FOLLETT
PN467
Yes?‑‑‑Well, no, I don't recall that, no.
PN468
You don't recall that?‑‑‑Because I wasn't part of the 2019 negotiations.
PN469
Do you remember what the 2019 negotiations log of claim from the union was for pay increases?‑‑‑The percentages?
PN470
Yes?‑‑‑What we ended up with or what we went for?
PN471
What you went for?‑‑‑I think, off the top of my head, I think it was 5 per cent across the board across three years.
PN472
Do you remember it was actually 8 per cent, 4 per cent and 4 per cent?‑‑‑No, I don't recall that, no.
PN473
That agreement was ultimately agreed at 3 per cent, 2.5 per cent and 2.5 per cent?‑‑‑Correct.
PN474
When you say you don't recall Mr Cotton having this discussion with you, does that mean it's possible that it happened and you just don't now recall it, or are you denying it happened?‑‑‑I don't recall having that conversation with Mr Cotton because I don't know why he would come to me about something that I wasn't involved in.
PN475
Well, he says he came to you to ask that the log of claims that you were about to prepare be a little bit more realistic on wage increases?‑‑‑So he came to me before the log of claims were put in?
PN476
Yes?‑‑‑And he knew what our log of claims were?
PN477
No, he asked you, when putting in that log of claims, to consider and make it a bit more realistic than what it was previously?‑‑‑I don't recall having that conversation with Mr Cotton.
PN478
All right. Now, before you prepared your first witness statement, do you recall reviewing the company's aide-memoire that had been filed in this proceeding?‑‑‑Yes.
*** JAIME PETER THAIN XXN MR FOLLETT
PN479
Some of that aide-memoire set out some of the evidence that the company said that it was going to lead?‑‑‑Yes, I can remember that.
PN480
Can I hand you a copy of it, please. It's in the court book, Deputy President. Do you have a copy of the court book?
PN481
THE DEPUTY PRESIDENT: Yes, I do, thank you. What page?
PN482
MR FOLLETT: It's tab 14, page 56.
PN483
THE DEPUTY PRESIDENT: Thank you.
PN484
MR FOLLETT: Did you want a copy now?‑‑‑No, I've got it, thank you.
PN485
You can see there's some reference to some of the evidence at paragraph 9. Do you remember reading that at the time?‑‑‑Of reading the aide memoire?
PN486
Yes?‑‑‑Yes.
PN487
Your first statement, can I suggest to you, was drafted primarily in response to what was set out in that aide memoire from an evidentiary perspective. Do you agree with that?‑‑‑Yes.
PN488
What you essentially did was deal with the 19 November 2021 meeting by saying that you didn't attend?‑‑‑I was informed I was not there, yes.
PN489
You also dealt with 9(b), which is the reference to Mr Cotton providing to you a September quarterly CPI sheet?‑‑‑So he did not provide that sheet to me on the day. Is that what the summing-up of the words is?
PN490
No, my question was that you prepared your statement by reference to what was in the aide memoire. With respect to 9(a), you said you didn't attend that meeting?‑‑‑Correct.
PN491
And with respect to 9(b), you specifically said something about that topic in your first witness statement?‑‑‑Correct.
*** JAIME PETER THAIN XXN MR FOLLETT
PN492
What you said about that topic was in, effectively, paragraphs 11 and 12 of your first witness statement?‑‑‑Correct.
PN493
At the start of paragraph 11 - I withdraw that. Can I suggest to you, Mr Thain, that - I withdraw that. Paragraph 9(b) of the aide memoire says:
PN494
Mr Jamie Cotton also provided the same CPI September sheet 2021 to Mr Jaime Thain, the applicant's delegate during bargaining.
PN495
Can I suggest to you that what you've done in paragraph 11 is - I withdraw that. You read that paragraph 9(b) to suggest that there was a meeting just between you and Mr Cotton at which Mr Cotton had provided you that document; correct?‑‑‑In a one on one meeting, not in an enterprise agreement meeting.
PN496
What I'm suggesting to you, Mr Thain, is that's what you interpreted paragraph 9(b) to be, that that's what the company was going to say?‑‑‑Sorry, I'm a bit confused.
PN497
I'm asking about your mental processes here, Mr Thain, and I'm putting to you that when you read paragraph 9(b), you thought the company was going to say that Mr Cotton had a separate meeting with you and gave you that sheet. 'Yes' or 'No'?‑‑‑Did I think he was going to say - the company was going to say that?
PN498
Yes?‑‑‑Yes, I don't know how to answer that question, sorry.
PN499
I want to suggest to you that you did and that that has influenced the way in which you have responded in your witness statement by saying that he provided you that sheet, but not in a bargaining meeting, in a separate one on one meeting just with you?‑‑‑Yes.
PN500
What you've attempted to do is to respond to what you anticipated the company would say rather than what actually happened. That's correct, isn't it?‑‑‑Correct.
PN501
You have a specific recollection of Mr Cotton providing you the September quarterly CPI sheet?‑‑‑Correct. I have the actual document that he gave me.
*** JAIME PETER THAIN XXN MR FOLLETT
PN502
And you have a specific recollection of him explaining to you that the company's position was that the CPI amount was quarterly?‑‑‑No, I don't. We spoke about how we got the percentage offer to our enterprise bargaining agreement and the percentage that they offered to come back with. I said, 'Where did you get that figure from?' and that's when we had that conversation when he gave me the sheet.
PN503
Yes, and he said to you, 'Here's the sheet and it records quarterly CPI in September as 1.3'?‑‑‑Yes.
PN504
'And that's where we've got the 1.5 per cent'?‑‑‑Correct.
PN505
So, he was articulating that the company's position was that the CPI meant a quarterly figure?‑‑‑Not to my recollection because why would he show me a September quarter when it's not even stipulated in the agreement? It's of no relevance; hence why I didn't look at it. I asked the question of where he got the 1.5 per cent offer from, he handed me the September CPI sheet, explained that September quarter CPI was 1.3, 'That's where we got our offer from.'
PN506
Do you have paragraph 11 of your witness statement there, your first one?‑‑‑Yes, I do.
PN507
The third line:
PN508
Mr Cotton claimed in the course of that meeting that the CPI part of the clause was intended to mean a quarterly CPI figure.
PN509
?‑‑‑That's right. He was pointing to the September quarter figure saying, 'That's where we got it from.' I can show you in a manner that will make it pretty obvious because, as we all know, the September CPI quarter comes out with not only a quarterly figure but an annual figure. I asked, 'Where did you get the 1.5 per cent offer from?' He said, 'Right there.'
PN510
THE DEPUTY PRESIDENT: Sorry, just to be clear - - -?‑‑‑Sorry. Do you want that?
PN511
I think it's exactly the one - that's JC4?
PN512
MR FOLLETT: JC4.
PN513
THE DEPUTY PRESIDENT: Yes. Okay, no, that's fine, thanks.
*** JAIME PETER THAIN XXN MR FOLLETT
PN514
MR FOLLETT: It's the case, isn't it, Mr Thain, that, in fact, he gave you this document not in a one on one meeting but in a bargaining meeting?‑‑‑That's incorrect.
PN515
Mr Cotton and Mr Kuun were present at this meeting?‑‑‑Incorrect.
PN516
They were present at all bargaining meetings?‑‑‑It didn't happen at a bargaining meeting.
PN517
Just answer my question: they were present in all bargaining meetings?‑‑‑As far as I recollect, yes.
PN518
You've read Mr Cotton's account of what he said occurred in that meeting in either late October or early November?‑‑‑Are we talking about the one on one or EBA meeting?
PN519
What he says occurred in the EBA meeting?‑‑‑Sorry, what point is that on Jamie's - I don't have Jamie's statement on me.
PN520
There should be a court book, a big folder, in front of you?‑‑‑Yes.
PN521
If you turn to page 124 towards the back - the page numbers are down the bottom in the middle?‑‑‑Yes.
PN522
It's paragraphs 18 through to 21, principally, on page 127 and following?‑‑‑Sorry, what number was it?
PN523
Look at paragraph 18:
PN524
In around late October or early November, approximately midway through the negotiations, I recall having a meeting at 37 South Street, Lytton at 10.30 am.
PN525
You don't deny there was a bargaining meeting in late October or early November?‑‑‑I can check my notes to confirm that. I don't remember anything off the top of my head, though.
PN526
That's where bargaining meetings traditionally occurred, at 37 South Street, Lytton?‑‑‑Correct.
*** JAIME PETER THAIN XXN MR FOLLETT
PN527
And it's in the board room?‑‑‑Correct.
PN528
'Mr Kuun, Mr Thain, Mr Wilson, myself and other employee representatives' and this was to specifically discuss for the first time the company's 1.5 per cent wage offer?‑‑‑As far as I can recollect, if I can just catch up with my notes, I might be able to see what was discussed.
PN529
Can you do this not by referring to your notes at this stage, Mr Thain?‑‑‑It could be a bit hazy as my memories of this thing happening quite some time ago are a bit - - -
PN530
That's really the point, Mr Thain?‑‑‑Yes, well, when you have so many meetings - - -
PN531
But could you close your diary - - -?‑‑‑ - - - it's hard to keep up.
PN532
- - - for the moment, please? Could you close your diary for the moment, please.
PN533
THE DEPUTY PRESIDENT: Mr Thain, we don't have the benefit of your diary?‑‑‑Okay, sorry.
PN534
That's it, thanks.
PN535
MR FOLLETT: The company presented to you in a bargaining meeting their responsive wage offer of 1.5 per cent, 2 per cent and 2 per cent, didn't they?‑‑‑As far as I can recollect in that meeting, yes.
PN536
It stands to reason, doesn't it, Mr Thain, that you would have discussed in the bargaining meeting where your 1.5 per cent, 2 per cent and 2 per cent came from?‑‑‑That is correct.
PN537
Yes, and you did discuss where the 1.5 per cent came from in a bargaining meeting, didn't you?‑‑‑Jamie explained it in another bargaining - in that bargaining meeting to the other representatives, as I already was aware of where the figure came from.
*** JAIME PETER THAIN XXN MR FOLLETT
PN538
Do I take that to mean that he did produce the September quarterly CPI document in that meeting after you say he'd already separately given it to you and explained that the 1.4 per cent was derived from the September quarterly 1.3 per cent CPI increase?‑‑‑Yes.
PN539
So that did happen in the room with the other bargaining representatives from the AWU there?‑‑‑As far as I'm aware, yes, but it wasn't given to me, it was given to other members of the table.
PN540
Who was it given to? Mr Wilson?‑‑‑I couldn't tell you off the top of my head. It was just put on the table and whoever wanted to have a look at it, but we were all within a basic understanding of where it came from due to my previous meeting with Jamie.
PN541
But certainly in that meeting, everyone was on the same page, that the company's assertion as to where the 1.5 per cent came from was the CPI quarterly figure of 1.3 per cent?‑‑‑I won't speak on anyone else's behalf, but I understood where they got the figure from.
PN542
All right. It went a little bit further than that, though, didn't it, Mr Thain? Mr Cotton explained that that's what the reference to CPI in clause 2.6 of the agreement meant, the quarterly figure?‑‑‑No, because why would - - -
PN543
Well, you didn't - - -?‑‑‑He didn't explain anything as at September because it's not even worded as September either. It's irrelevant.
PN544
You couldn't be in any doubt, could you - I withdraw that. Do you remember looking at the sheet either when you say Mr Cotton gave it to you earlier or in that meeting and noting that the annual figure at September was 3.9 per cent for Brisbane?‑‑‑Yes, I do remember looking at that figure because they're both right next to each other.
PN545
Do you remember Mr Wilson in the bargaining meeting agreeing with Mr Cotton that the CPI reference in the agreement was a reference to the quarterly CPI?‑‑‑I don't remember him saying it in those words. I remember him saying he agreed with how Mr Cotton got the 1.5 per cent offer from the 1.3 per cent CPI quarterly, CPI September.
PN546
All right?‑‑‑He didn't agree with Jamie, no.
*** JAIME PETER THAIN XXN MR FOLLETT
PN547
Do you remember him, Mr Wilson that is, saying that the CPI goes up and down quarterly?‑‑‑Yes, fluctuating, talking about the quarterly basis, yes. Nothing about it being December quarter or annually was ever mentioned.
PN548
That was really my next question. You didn't say in that bargaining meeting that the CPI was annual for the purposes of the agreement, did you?‑‑‑No, because it wasn't really reflective of how we were at the time. We had no clue about inflation going to go through the roof or anything. I'm not a financial adviser. It doesn't really - I shouldn't say interest me, but it doesn't really directly affect me. It was just something in there as a safety net that we had from the previous agreement that no one had ever spoken about, including Contract Resources or employees to that effect, that it would be activated, the clause.
PN549
Yes, but inflation right at that point in time, the most recent evidence of annual inflation was 3.9 per cent at the time of that meeting; correct?‑‑‑As far as I'm aware from that document, yes.
PN550
You wanted 3 per cent as a year 1 wage increase?‑‑‑I didn't personally want 3 per cent, no.
PN551
Sorry, the AWU in its log of claims wanted 3 per cent?‑‑‑That was what was discussed between the members and myself, yes.
PN552
That was in your log of claims, was it not?‑‑‑Yes, it was in the log of claims.
PN553
And the company put forward 1.5 per cent for year 1?‑‑‑Correct.
PN554
And you eventually ended up reaching agreement at 2 per cent?‑‑‑Correct.
PN555
3.9 per cent is a considerable distance away from 1.5 per cent or 2 per cent or indeed 3 per cent, is it not?‑‑‑Correct.
PN556
As an important wage increase for your membership; correct?‑‑‑Correct.
PN557
What I want to suggest to you is that you well knew that the CPI increase in clause 2.6 was a quarterly increase because there's no way you would have given up 3 per cent if you knew that annual inflation was 3.9 per cent?‑‑‑Not necessarily. Like I said, it wasn't something we really reflected heavily on during the bargaining process because it had never been activated and, being September only, not December, which is the one we're talking about, I found that irrelevant because it could always go backwards.
*** JAIME PETER THAIN XXN MR FOLLETT
PN558
Yes, it could, it can - - -?‑‑‑So it could end up with a percentage where it might affect us.
PN559
- - - it can fluctuate?‑‑‑A hundred per cent.
PN560
Knowing it can fluctuate and knowing that annual inflation at that point in time was 3.9 per cent - - -?‑‑‑I never said I knew what it was going to be either. I don't know what it was going to be. It could have gone backwards.
PN561
- - - you would have made sure that - instead of leaving it to the whim of CPI inflation, you would have insisted upon a higher wage increase, even higher than your log of claims of 3 per cent; correct?‑‑‑No, that's - - -
PN562
To guarantee that your members were going to ensure that their wages didn't go backwards because CPI was roaring ahead and you'd only locked in 2 per cent in an enterprise agreement?‑‑‑Yes - no, that's an assumption and we were heavily, heavily, heavily pressured during negotiations about getting the EBA done to have it - secure a contract for the next three years.
PN563
That's why you knew 2 per cent was a pretty good deal, given that alternative of quarterly inflation of 1.6 per cent; correct?‑‑‑No, I don't agree 2 per cent is a good percentage at all. I don't see anybody could see that.
PN564
You were comfortable looking at 2 per cent as a minimum because you knew that, in all likelihood, it would end up being the maximum because inflation was going to be lower than 2 per cent. That's right, isn't it?‑‑‑No. I just know my members and my people that I work with and I know that they fold relatively easily as the union presence wasn't very strong at the time and we had a potential to talk about a voucher so we could get percentages back in other avenues.
PN565
Some time after this, towards the middle of November, towards the end of bargaining, the 1.5 per cent and the company's wage offer came up again for discussion?‑‑‑As in the whole percentages over the three years or are you just talking about the first year?
PN566
Well, my question is about when the competitor rates were raised. Do you remember that?‑‑‑Is that talking about when Mr Kuun slid another EBA from Monadelphous on the table reflecting their offer of contract?
*** JAIME PETER THAIN XXN MR FOLLETT
PN567
How do you recall it occurring?‑‑‑I remember a little slide show that Mr Kuun put on during an EA negotiation meeting with competitors and rivals that were looking to come in and undercut CR at the time.
PN568
Yes?‑‑‑They had percentages about all three companies, but missing the most vital one, being the lead company on site that had a higher percentage than us.
PN569
Ampol?‑‑‑No, Wood Group. It was a tactic that was used and even a rival's EBA was put on the table during negotiations as a petty attempt to try and lower our rate.
PN570
Thank you for that?‑‑‑No worries.
PN571
That meeting occurred after the one that we've just been talking about where the September quarterly sheet came up?‑‑‑As far as I'm aware, yes.
PN572
The company's position was essentially saying, 'We need to keep the wages in or around what we're asking for because that's consistent with what other competitors are charging and therefore that will keep us competitive for the Ampol contract'?‑‑‑Yes, heavy influence on the contract emphasis.
PN573
Yes?‑‑‑To keep the contract.
PN574
Sure. Did the AWU have a presence with those other competitors, in those other competitors?‑‑‑As in?
PN575
An industrial presence - Monadelphous, for instance?‑‑‑Does AWU work with them?
PN576
Yes?‑‑‑Not to my recollection. I don't know.
PN577
Well, if they're a competitor, surely they've got similar trade coverage or industry coverage?‑‑‑I still don't know the ins and outs of who can and can't be covered by AWU, so I'm not aware.
PN578
Early on in the negotiating process, there was an incident with the CPI wording being removed from the draft agreement?‑‑‑Quite conveniently, yes, I remember that.
*** JAIME PETER THAIN XXN MR FOLLETT
PN579
When you say 'quite conveniently', have you read what Mr Cotton says about that in his reply witness statement?‑‑‑Where am I looking for that, sorry?
PN580
It's right towards the back at page 207?‑‑‑207?
PN581
Paragraph 5. Have you read this?‑‑‑I have once.
PN582
He says in or around September or early October, during some of the first bargaining meetings, there was a discussion about clarifying the timing of the first wage increase. Do you remember that?‑‑‑I do remember that, yes, as in - - -
PN583
Do you remember the 2019, the timing for the wage increase was three different dates, being the first full pay period after a particular - - -?‑‑‑I vaguely remember that being brought up as being an issue because it was like halfway through a pay period.
PN584
Yes?‑‑‑I remember that being an issue, but I don't remember exactly what the dates were or anything like that.
PN585
Do you recall that what was agreed was that you would change the pay rises to be payable from 1 January each year?‑‑‑Yes, that was talked about before that draft came out, yes, correct.
PN586
By reference to your first witness statement, Mr Thain, at attachment JT1, the very first page of that, this is the version you're referring to where the CPI wording's been removed; correct?‑‑‑Correct.
PN587
You see what's taken out is all the bullet points from 2.9, so that whole section's gone?‑‑‑2.9?
PN588
Do you remember what clause 2.9 looked like - - -?‑‑‑Not off the top of my head, no.
PN589
- - - in the 2019 agreement?‑‑‑No, I don't sorry.
PN590
Can I ask you to turn back to page 139?‑‑‑Yes.
*** JAIME PETER THAIN XXN MR FOLLETT
PN591
You see there you've got the heading and then the first two lines:
PN592
In consideration of the nature and duration, the following wage increases - - -
PN593
And then you've got (a), (b) and (c) there?‑‑‑Yes.
PN594
See the different dates: the first full pay period after approval by the Fair Work Commission; the first full pay period after 5 January; first full pay period after 3 January. Now, what's happened in JT1 is that those first two lines remain but (a), (b) and (c) have just been removed and in its place has been on 1 January a percentage increase; on 1 January a percentage increase; on 1 January a percentage increase?‑‑‑Correct.
PN595
That's highlighted in yellow?‑‑‑Yes.
PN596
Hardly is Mr Cotton trying to hide anything from you, he's highlighting it for you to have a look at?‑‑‑I believe he highlighted that because I was going to get back to him with the days those dates fell on, getting rid of any confliction of it being mid pay week.
PN597
All right. But it doesn't have what the percentage increase is in that, does it?‑‑‑No, because we still were talking about that. We'd never settled on a percentage increase, so why would he put something that he doesn't have in there?
PN598
Yes. You don't actually know why or how Mr Thain came to replace what was in the clause (a), (b) and (c) with those two lines highlighted in yellow.
PN599
THE DEPUTY PRESIDENT: Mr Cotton.
PN600
MR FOLLETT: Sorry, Mr Cotton?‑‑‑I was going to say, 'Hang on.'
PN601
You don't actually know why or how Mr Cotton came to replace (a), (b) and (c) with the two yellow highlights, do you?‑‑‑Well, I don't think anybody did. No one in the negotiation sure didn't, including Natasha, who had a lot of hands on with all the claims and editing of this. They were all quite puzzled when we brought it up.
*** JAIME PETER THAIN XXN MR FOLLETT
PN602
Could I suggest to you that he never said to you during bargaining - I withdraw that. You never specifically raised this with him, did you, during bargaining?‑‑‑In what way, sorry? What exactly are we talking about?
PN603
You never specifically said to Mr Cotton during bargaining, 'You've taken out the CPI wording. We want you to put it back in'?‑‑‑I don't believe I said it. I believe, in my recollection, I think it was Beau Nicholson that said it.
PN604
When you say to your recollection, were you there?‑‑‑Yes, when it was brought up at the table, yes.
PN605
Are you saying Mr Nicholson said it to Mr Cotton?‑‑‑Yes. Said it to the table. We were all there in negotiations, so it wasn't directed at any one person.
PN606
Is this the occasion when you say Mr Cotton responded by saying, 'I don't know what happened there'?‑‑‑Correct.
PN607
Can I suggest to you that - - -?‑‑‑Or words to that effect.
PN608
Can I suggest to you that that didn't occur at that time and the first time this was brought to Mr Cotton's attention was when you raised it in February of 2022?‑‑‑No, that's false. So - - -
PN609
And you said to him - when the dispute first came up as to what CPI meant, you referred to the fact that he'd taken the CPI wording out and it had to be put back in; that's correct?‑‑‑No, we brought it up at the meeting.
PN610
All right?‑‑‑I might have repeated that myself later down the track, but at that meeting it was brought to light.
PN611
Do you remember on 23 February having a discussion with Mr Cotton about what was, in essence, the beginning of this dispute about the CPI rate?‑‑‑Yes.
PN612
Mr Cotton places that meeting on 23 February. Do you have any reason to disagree with that date?‑‑‑I couldn't recollect the exact date, but I know it was around February some time, yes.
PN613
You had a specific discussion in that meeting, didn't you, about whether the CPI was quarterly or annually?‑‑‑Just between me and Jamie outside of the office, yes.
*** JAIME PETER THAIN XXN MR FOLLETT
PN614
That meeting started at your initiative?‑‑‑Yes, I was highlighted by - excuse me - highlighted by our members that there was a clause that we need to activate as the CPI was higher. So, I, as the delegate and only delegate on site, yes, I approached Jamie.
PN615
You knew the CPI was higher because Mr Cotton had told you, hadn't he, prior to that?‑‑‑I don't know if it was Mr Cotton. It might have been someone else.
PN616
Do you remember - - -?‑‑‑It may have been Mr Cotton, yes.
PN617
Do you remember Mr Cotton giving you the December quarterly statistician sheet?‑‑‑I think that was later in the piece. I don't think that was that meeting, as far as I remember.
PN618
He says in late January, after that sheet came out, he gave it to you and told you that because the quarterly CPI was 1.6 per cent, that they would be implementing a 2 per cent pay increase?‑‑‑No, that wasn't spoken about to me. To my recollection, that was spoken to with Beau Nicholson. He received a sheet, not myself.
PN619
In any case, you then approached Mr Cotton in or around February, late February, because you were aware the company had paid 2 per cent and you were of the view that they should have been paying 4.3 per cent?‑‑‑Correct.
PN620
4.3 per cent being the December 2021 annual CPI increase?‑‑‑Correct, as worded in the EBA.
PN621
THE DEPUTY PRESIDENT: That's why we're here.
PN622
MR FOLLETT: If only it was that simple, Mr Thain?‑‑‑I thought it was pretty straightforward.
PN623
Would you agree with me that 23 February was the first time you had ever raised with anyone at Contract Resources that you thought the CPI wording was an annual increase measured in December?‑‑‑The first time I spoke to anybody about it or spoke to Jamie about it?
PN624
Anybody at Contract Resources about it, a management representative, as it were?‑‑‑Yes, that was the first - Jamie was the first one I brought it up with, yes.
*** JAIME PETER THAIN XXN MR FOLLETT
PN625
Would you agree with me that that was the first time anyone from the AWU had raised it in your presence with Contract Resources?‑‑‑I was the one who brought it up, I was the AWU representative, or did someone else from the AWU?
PN626
Did any other AWU representative bring it up in your presence?‑‑‑Not in front of me that I recollect, no.
PN627
Do you remember on that day that Mr Cotton said to you that it was always a quarterly figure?‑‑‑I do remember him trying to explain it, yes.
PN628
Do you remember he said to you words to the effect, 'We talked about this. I remember explaining this to you when I showed you the CPI increase for the September quarter'?‑‑‑Yes, I do remember that.
PN629
And he said, 'And I pointed out the sheet where the increase was based on each quarter and you agreed with that'?‑‑‑I agreed - - -
PN630
Do you remember him saying that?‑‑‑I remember him saying - yes, I do remember him saying that, yes.
PN631
Your response was words to the effect, 'It's not about morals, it's about what is in writing'?‑‑‑That's Jamie's recollection of how it went down, yes.
PN632
Well, that's what you said, isn't it?‑‑‑At one stage of the conversation, but that's not all I said, no.
PN633
But you're not disputing you said that at one point in time?‑‑‑A hundred per cent I said it.
PN634
What you meant by, 'It's what's in writing' was you thought, as you've just expressed before, you thought the writing was pretty clear that CPI in December for Brisbane is an annual CPI figure; correct?‑‑‑Correct, yes.
PN635
What you meant about the morals bit was the reference to you changing your position from agreeing with him that it would be a quarterly CPI figure to now saying it's an annual CPI figure because that was more opportunistic and beneficial to your members; correct?‑‑‑No, not correct.
*** JAIME PETER THAIN XXN MR FOLLETT
PN636
You knew that by changing your position, you were being immoral and that's why you said, 'It's not about morals, it's about what's in writing.' Correct?‑‑‑No, I don't - I couldn't quite explain or understand why Jamie would have used that 'morals' because he approached it with me about morals. He said, 'Well, you have to look at your morals' and that was what pointed the response of, 'It's not about morals, it's about what's in black in white.' So, I wasn't quite sure what Jamie was referring to by 'morals'. He didn't quite explain himself.
PN637
Nothing further.
PN638
THE DEPUTY PRESIDENT: When did you see, Mr Thain, the September - the sheet you have in your hand?‑‑‑Yes.
PN639
When did you get that? When were you given that?‑‑‑Jamie Cotton physically gave this to me. This was earlier - - -
PN640
Whereabouts in the sort of timing of things?‑‑‑This was earlier in the piece. When we were discussing their first response of the first year's percentage offer of the 1.5 per cent, I raised the question of, 'Okay, how did you get that figure? How do you determine we're worth 1.5 per cent?' and that's when he produced this document and stated, 'Well, reflecting the September quarter of how things are going being 1.3, we think it's only fair to be getting a 1.5 - to be giving a 1.5', which I didn't understand, being that we don't get pay rises quarterly, we get them annually. That's when I pointed out right beside that figure we're looking at the annual, not the - - -
PN641
The increase was for an annual - it's an annual increase, isn't it?‑‑‑Correct.
PN642
Three plus two and a-half plus two and a-half, or whatever the numbers are. If, as you say, he said 1.5, 'I derived it from that number there, 1.3' - - -?‑‑‑Correct.
PN643
Why would he derive a quarterly number to use for an annual increase and why would you - why would you understand it - why would you look at that and say, 'Annually - Jamie, it should be 3.9, not 1.3, it's in front of you. It says annual, it says 3.9.' Why wouldn't you reassess your position and go, 'We're almost 1 per cent under?‑‑‑Because of the sheer fact that it's a September quarter and not the December annual figure that we'd be looking at, so that could still - - -
PN644
But it was never going to go down from 3.9?‑‑‑ - - - fluctuate.
*** JAIME PETER THAIN XXN MR FOLLETT
PN645
Yes, but it wasn't going to go down from 3.9?‑‑‑I don't know that. I'm not a financial person.
PN646
Doesn't need a financial. Annually, to date, the annual is 3.9, you've only got one more quarter to go?‑‑‑Yes.
PN647
And you were prepared to accept one and a-half when it was running at 3.9?‑‑‑As a union, I can't speak on just my own behalf, so this is from a union's point of perspective. We're made up of tradesmen such as scaffolders, painters, laggers, industrial service workers. I don't know any bankers or any financial advisers or anybody that even keeps up with the market of consumer price index that had flagged anything with me in regards to this, but it was something at the time that I found irrelevant, being September, when we were worried about December annual, which it can fluctuate up or down.
PN648
The explanation you give is that you say, 'Well, how did you get one and a-half?' You're asking for three?‑‑‑Yes.
PN649
You're representing your members and you're saying, 'We want three' and the organisation comes back with one and a-half and you go, 'Well, how on earth is that - how do you justify that'?‑‑‑Yes.
PN650
He brings out this piece of paper and says, 'See that quarterly figure's 1.3'?‑‑‑Mm-hm.
PN651
Now, you're negotiating for an annual number, not a quarterly number?‑‑‑Correct.
PN652
The number right next to it, still under the banner of September quarter 2021?‑‑‑Yes.
PN653
Is 3.9?‑‑‑Correct.
*** JAIME PETER THAIN XXN MR FOLLETT
PN654
Why would you - you're out negotiating wages - why would you say, 'I'll accept that' when the figure next to it is 3.9? I mean, in hindsight now, it's a far more attractive number, but, at the time when you're negotiating, why didn't you say, 'I'm off, I need - 3.9 is - we're running behind. You should give us more than one and a-half, you should give us three'?‑‑‑So, as I was saying before, being a delegate, I put my own personal views aside. I represent 80-odd members, so I have to take it back to the members to get feedback. No one flagged it with me, and not to mention about - sorry, to mention the heavily scrutinised push that was put and rushed on this EBA to get signed to secure a contract. Everyone - being a heavily casualised industry - there's only three people, off the top of my head, in a company of a hundred-odd people that are permanent employees - everyone's more worried about job security than getting an extra couple of dollars in their bank.
PN655
Now that we've found out with the refinery staying open, the contract being now secured, only now has just put a lot of casuals at ease. With this percentage, we were safe to go at the 3 per cent offer because we weren't asking too much, we weren't asking too little. We felt that was fair. So, even though it does say 3.9, what I think is not really relevant to what 79 other blokes that I represent interpret it as. They would go job security over .9 of a per cent more.
PN656
THE DEPUTY PRESIDENT: In your mind, you knew the members that you represented didn't have the stomach to go for 3.9 and push hard?‑‑‑Correct, because I - - -
PN657
Based on - you're saying casual workforce or highly casualised, they may lose their jobs?‑‑‑Correct.
PN658
They'd been through that process a few years earlier?‑‑‑Yes. Fear and anxiety gripped a lot of our members about work because they had been heavily casualised. Being very difficult to become a permanent employee with CR, for unknown reasons, that was a big bargaining chip that CR knew and exploited to keep the contract.
PN659
You accepted one and a-half or you accepted two in the end?‑‑‑Correct. Again, feedback from the members, not my personal view.
PN660
You are now pursuing that it should be 4.3?‑‑‑Correct.
PN661
Another 2.3 per cent?‑‑‑Correct, as it's clearly stated in the EBA what we're entitled to.
PN662
As you say, yes?‑‑‑As 90-odd other people at our work believe too.
PN663
That's why we're here?‑‑‑That's exactly right, sir.
PN664
That's what I have to decide. Okay. Anything else, Mr Taylor?
*** JAIME PETER THAIN XXN MR FOLLETT
PN665
MR TAYLOR: No, your Honour.
PN666
THE DEPUTY PRESIDENT: Anything arising?
PN667
MR FOLLETT: There is just something arising out of one of those questions, Deputy President.
PN668
You gave evidence before about the sheet being placed in a bargaining meeting on the table, words to that effect?‑‑‑The September CPI?
PN669
Yes?‑‑‑Yes.
PN670
You say before that, Mr Cotton had handed it to you separately?‑‑‑Correct.
PN671
How many days or weeks before?‑‑‑Maybe a week or two, as far as I can recollect.
PN672
A week or two?‑‑‑Mm.
PN673
All right. That meeting where it was placed on the table, would you agree with me that that was likely to have been before 4 November?‑‑‑I couldn't give you the exact date, no, sorry, I'm not clear on the date that it was spoken about.
PN674
Because the September figures were only released on 27 October?‑‑‑Mm-hm.
PN675
So, if Mr Cotton had have given you this sheet before that, he would have had to have given it to you at some time after 27 October?‑‑‑Yes, I would agree.
PN676
And one to two weeks before the next meeting, that places the meeting on or around 4 November or later?‑‑‑Roughly, yes.
PN677
Nothing further.
PN678
THE DEPUTY PRESIDENT: Thank you very much. Nothing else?
PN679
MR TAYLOR: No.
*** JAIME PETER THAIN XXN MR FOLLETT
THE DEPUTY PRESIDENT: Thank you very much for your time?‑‑‑Not a problem. Thank you, Deputy President.
<THE WITNESS WITHDREW [3.09 PM]
PN681
MR FOLLETT: I believe we're up to our evidence. Our first witness is - - -
PN682
THE DEPUTY PRESIDENT: There's nothing further from you, Mr Taylor?
PN683
MR TAYLOR: No, your Honour, not at this time.
PN684
THE DEPUTY PRESIDENT: Okay. It's 10 past 3. We still might do it.
PN685
MR FOLLETT: We will certain finish the evidence.
PN686
THE DEPUTY PRESIDENT: Yes.
PN687
MR FOLLETT: Mr Cotton is our first witness.
PN688
THE ASSOCIATE: Mr Cotton, please state your full name and address for the record.
MR COTTON: James Andrew Cotton, (address supplied).
<JAMES ANDREW COTTON, AFFIRMED [3.11 PM]
EXAMINATION-IN-CHIEF BY MR FOLLETT [3.11 PM]
PN690
Your name is Jamie Cotton?‑‑‑Yes.
PN691
You presently work for Contract Resources Pty Ltd?‑‑‑Yes.
PN692
As the Lytton Refinery site manager?‑‑‑Yes.
PN693
Your business address is 37 South Street, Lytton?‑‑‑That's correct.
*** JAMES ANDREW COTTON XN MR FOLLETT
PN694
You have prepared two statements for the purposes of these proceedings?‑‑‑Yes, I have.
PN695
You should have a court book in front of you in a folder, Mr Cotton. Can you turn to page - the tab numbers are mixed up, but the pages at the bottom middle, page 124, and that's behind tab 18?‑‑‑Yes.
PN696
That is a witness statement of yours dated 15 August 2022?‑‑‑Yes.
PN697
With six annexures or attachments. Have you had an opportunity to read that recently?‑‑‑Yes, I have.
PN698
Are there any changes you want to make to it?‑‑‑Yes, just one to - I think it's point 26.
PN699
Point 26, this is a reference to the 19 November toolbox meeting?‑‑‑Yes.
PN700
Mr Beau Nicholson and other employee representatives assisted me during the presentation and clicked the PowerPoint slides.
PN701
What is it?‑‑‑Just to correct that, it's not PowerPoint slides, it was two PDF documents.
PN702
Two PDF documents?‑‑‑Yes, one being the enterprise agreement and the other being the September CPI.
PN703
Did you use PowerPoint slides on that day?‑‑‑No.
PN704
How was the display conducted?‑‑‑So that meeting room is quite large, it has a 70 inch or a 75 inch TV screen on one wall and then, over to one side, it has a sort of hard drive system there with a laptop computer and then a number of seats throughout the room.
PN705
And you use the laptop, do you, to display things on the screen?‑‑‑On the screen, yes.
PN706
And you mentioned you had two separate PDF documents?‑‑‑Yes.
*** JAMES ANDREW COTTON XN MR FOLLETT
PN707
Were you operating the laptop or someone else?‑‑‑No, Mr Nicholson was operating that. I think, from memory, the agreement's about 40 or 50 pages long, so he was sort of assisting going through where the highlights were and then, yes, the second one was the CPI sheet.
PN708
That was displayed on the 75 inch TV screen?‑‑‑Correct.
THE DEPUTY PRESIDENT: I will mark those two documents Cotton 01 and Cotton 02.
EXHIBIT #COTTON01 FIRST WITNESS STATEMENT OF JAMES ANDREW COTTON
EXHIBIT #COTTON02 SECOND WITNESS STATEMENT OF JAMES ANDREW COTTON
PN710
MR FOLLETT: Just in respect of the second witness statement, Mr Cotton, it's found at page 206. Have you had an opportunity to read that recently?‑‑‑Yes, I have.
PN711
Are there any changes you want to make to that?‑‑‑No, that one's fine, thank you.
PN712
JC01 and JC02, thank you, Commissioner.
PN713
THE DEPUTY PRESIDENT: We actually have a JC already, so I called it Cotton01 and Cotton02.
PN714
MR FOLLETT: Mr Cotton, clause 2.6 was in substantially the same form in the 2019 agreement?‑‑‑Yes.
PN715
Do you recall whether there was any previous disputation under the prior agreement about CPI?‑‑‑No.
PN716
Do you recall what the CPI figures were for the years of operation under that enterprise agreement?‑‑‑Not exactly, but somewhere around 1 per cent, maybe a little bit more, 1.5.
*** JAMES ANDREW COTTON XN MR FOLLETT
PN717
Can I hand you two documents. The three-yearly increases in the 2019 agreement were: December, Brisbane CPI 2018; December, Brisbane CPI 2019, and December, Brisbane CPI 2020. What I have handed to you is the consumer price index for the December quarter 2018 and 2019. Do you see that?‑‑‑Yes.
PN718
Do you see annual inflation and quarterly inflation for Brisbane in 2018 was .5 per cent and 1.5 per cent respectively?‑‑‑Yes.
PN719
And the pay increase specified in the agreement for that year was 3 per cent?‑‑‑That's correct.
PN720
Then for 2019, quarter .7 per cent and annual 2 per cent and the pay increase in the agreement for that year was 2.5 per cent?‑‑‑That's correct.
PN721
In your first witness statement at court book page 200, JC6, the December quarter 2020 document with quarterly inflation of 1.1 per cent and annual inflation of 1 per cent. Do you see that?‑‑‑Sorry, let me just find that.
PN722
Page 200?‑‑‑Yes.
PN723
The specified increase in the agreement for that year was also 2.5 per cent?‑‑‑Yes.
PN724
Does it follow from that that no matter what CPI meant in any of those years, the specified amounts in the enterprise agreement were always the pay increases?‑‑‑Yes, that's correct.
PN725
I tender those two sheets.
THE DEPUTY PRESIDENT: They will be CPI01 and CPI02.
EXHIBIT #CPI01 CPI SHEET
EXHIBIT #CPI02 CPI SHEET
PN727
MR FOLLETT: In Mr Thain's reply statement, which you hadn't seen - had you seen that statement prior to filing and preparing either of your statements?‑‑‑No, not Mr Thain's reply statement, no.
PN728
In paragraph 3, he refers to the removal of the CPI wording from the clause 2.6 and he says that early in the bargaining process that had occurred:
*** JAMES ANDREW COTTON XN MR FOLLETT
PN729
We asked the employer negotiating representatives about this. Mr Cotton's response was, 'I'm not sure what happened there' or words to that effect.
PN730
Did you say those words in a bargaining meeting attended by Mr Thain and others?‑‑‑No.
PN731
When did you first become aware that there was a complaint about the removal of the CPI wording?‑‑‑That was earlier this year, earlier in 2022, and although I didn't see a copy of that actual wording where it had been removed, it was around February, I think, that that occurred, and then, yes, when I saw a copy of it was, I think, as recent as June or July, somewhere around there.
PN732
You give an explanation for how that might have occurred, or must have occurred, or did occur in your reply statement?‑‑‑Yes, from memory, what had occurred was there was some discussions around the wording being - the date wasn't definitive on when the pay increase would apply. It was the first full pay period or a specific date, and that's how it had come up around how do we - how do we change that wording so we've got - we're not in sort of a disagreement with payroll trying to argue when the pay rises are going to apply, so we just went directly to that date of, I think, 1 January. So, when I'd amended that wording, I removed the complete clause and put in what that wording was, basically to show that, yes, okay, we're willing to amend it, but is that the right wording that we want in there and then, ultimately, yes, it went from there to the final wording.
PN733
I think the actual days of the week were put in ultimately?‑‑‑Possibly, yes. So, yes, we did actually go through Saturday, Sunday and Monday of each year, yes.
PN734
When that came up earlier this year, who brought it to your attention?‑‑‑Mr Thain.
PN735
Is it possible you might have said something along the lines of, 'I'm not sure what happened there' at that point in time?‑‑‑Yes, I think so, and I sort of took it as a bit of a throwaway comment, you know, I was a bit confused or not really sure what he was talking about at that time.
PN736
In Mr Wilson's reply statement, he refers in various paragraphs to a meeting where competitors' rates of pay were discussed?‑‑‑Yes.
PN737
Do you recall that?‑‑‑Yes, I do recall that.
*** JAMES ANDREW COTTON XN MR FOLLETT
PN738
When was that?‑‑‑Mid-November? Yes, mid-November, somewhere around there, probably towards the later of the negotiation period.
PN739
He refers to Monadelphous being referred to. Was that a company that you recall referring to?‑‑‑Yes, Monadelphous would be one of them. There was others.
PN740
Is that at the same meeting or a different meeting to what you set out in paragraphs 18 to 21 of your first statement where you talk about the September quarterly CPI sheet?‑‑‑So it would've been a different meeting. Initially, if I can sort of just explain, I guess, when I did my own research around what does the market look like, that sort of included CPI increases and also our competitors, so, yes, it's possible that I spoke to both of them points.
PN741
You refer to a meeting in late October or early November where the September quarterly CPI sheet was distributed in a bargaining meeting?‑‑‑Yes.
PN742
Was that before or after your meeting with Ampol on 4 November?‑‑‑So that would have been after, I believe.
PN743
And then, right towards the end of negotiations, I think you said there was a meeting about competitors' rates of pay?‑‑‑Yes.
PN744
And there was a spreadsheet?‑‑‑There was. Mr Kuun displayed a spreadsheet, yes.
PN745
Just briefly, in paragraph 30 of your first witness statement, you refer to a Mr Wade Matthews as an employee representative at that point in time.
PN746
Does Mr Matthews report to you?‑‑‑No.
PN747
Nothing further.
THE DEPUTY PRESIDENT: Thank you very much. Anything arising?
CROSS-EXAMINATION BY MR TAYLOR [3.25 PM]
PN749
Your evidence is that you weren't involved as a negotiator in 2019; is that right?‑‑‑Sorry?
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN750
You weren't involved as a negotiator in 2019, but you were at some or all of the bargaining meetings?‑‑‑Yes, I did attend some of those bargaining meetings.
PN751
Some of them? Okay. You don't remember any discussions about when the provision came in, the CPI provision was put into the agreement?‑‑‑No.
PN752
Do you remember any discussions with your management and HR colleagues about where that was going?‑‑‑No.
PN753
You can't say what the CPI provision meant in the 2019 agreement; is that right?‑‑‑I can't say?
PN754
Yes, I'm asking you?‑‑‑Yes, I have my view of what that is.
PN755
What's that?‑‑‑So it's based on the quarterly figure.
PN756
Why do you say that?‑‑‑That's how I've always understood it to be.
PN757
The figure in the agreement or just the CPI generally?‑‑‑The CPI in general comes out quarterly.
PN758
Going back to the 2021 agreement, your evidence is that you prepared the draft that was circulated. That didn't have the CPI provisions in it, is that right, with a highlighted section with no figures?‑‑‑Yes, that's correct.
PN759
Taking it out was your initiative; is that right?‑‑‑Yes, I took it out.
PN760
Had you discussed with the negotiators about taking it out at all?‑‑‑Yes, so around tidying up that wording of not the first full pay period for a specific date on when it would apply.
PN761
But you hadn't negotiated - you hadn't discussed actually taking out the CPI provisions in the agreement?‑‑‑No.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN762
What other clauses had you been negotiating at that time?‑‑‑There was quite a few clauses, I guess, around - some of it was related to change in legislation, I believe. HR were sort of looking after that side of it. There was definitely conversation around updating the skills classification, just to tidy it up so it was more relevant to some of the qualifications people had.
PN763
Had those negotiations resulted in things being added or taken away from the agreement?‑‑‑No, not taken away from the agreement. I think a lot of it was really just to tidy up around the wording.
PN764
So you didn't choose to leave anything else out of the draft, just the CPI provisions in 2.6?‑‑‑I don't recall actually. I didn't go back and review was there something else that I'd taken out. I think the wording around the classification was changed a couple of times throughout the negotiation.
PN765
Who else in Contract Resources has copies of this draft or did you have the only working draft?‑‑‑So it would be myself and Natasha O'Donnell, who was the HR representative.
PN766
You both had a working draft?‑‑‑Yes, I believe so, yes.
PN767
So you both had that capacity to edit the draft; is that right?‑‑‑Yes.
PN768
Your evidence is that you don't know who reinserted the provision into the draft; is that right?‑‑‑That's correct.
PN769
Common sense says it has to be Natasha; right?‑‑‑Yes, it could have been.
PN770
Well, who else could it have been?‑‑‑Yes, okay, yes.
PN771
You could have done that change, reinserted it, but you don't remember for sure?‑‑‑No.
PN772
If Natasha had done it, she would have had to send it to you via email?‑‑‑No, not necessarily.
PN773
How else would she have gotten it to you? She was in Perth; right?‑‑‑Yes.
PN774
Natasha from HR, she was based in Perth?‑‑‑She was based in Perth, yes.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN775
How else would she have gotten a document to you other than through email?‑‑‑Yes, so just to clarify it, when I made the changes, that would be the copy that I had, so that you had a draft copy which sat with Natasha.
PN776
Right?‑‑‑Then I printed the copy with that clause highlighted. So, it wasn't highlighted when we went through it, it was highlighted and then printed.
PN777
But the question was - I'm trying to work out who reinserted it into the agreement and the circumstances in which that happened?‑‑‑Yes.
PN778
You're saying you can't remember if it was you who did it or Natasha. If Natasha had done it, she would have had to have had a copy herself and then emailed it to you; is that right?‑‑‑Yes.
PN779
Have you checked your email for that document at all?‑‑‑Yes, so there was - the final one came from HR. I don't believe it was Natasha because Natasha had left the business.
PN780
I'm talking about the document where it was first reinserted into the agreement, the CPI provisions?‑‑‑No, I didn't see that in my email.
PN781
If Natasha had reinserted it - you're saying she possibly could have reinserted it - if she's the one who did it, how do you know it was Contract Resources' intention to include the CPI provision in the agreement; it was always there? How do you know that?‑‑‑Sorry, can you repeat that question?
PN782
You're saying you don't know who reinserted the provision into the agreement. How do you say it was always Contract Resources' intention to include the CPI provision in the agreement?‑‑‑That was always the intention on my behalf.
PN783
How do you know that? I mean, how do you know what Natasha did or why she did it?‑‑‑Yes, I can't comment on behalf of Natasha, but my intention was always for it to be in the agreement.
PN784
Your intention was?‑‑‑Yes.
PN785
You don't know why Natasha reinserted it. How did she attend bargaining meetings?‑‑‑Via Teams.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN786
Did anyone else attend via Teams?‑‑‑No, I don't believe so.
PN787
Teams is a Microsoft product. There's an option there to record meetings. Was that done?‑‑‑No, I don't believe so.
PN788
Your evidence is that there's no meeting occurred with the employee bargaining representative where they demanded the CPI provisions get reinserted; is that right?‑‑‑Correct.
PN789
The evidence from the AWU's witnesses is that this meeting did occur, as multiple witnesses for the union have said, and that your evidence is not correct. What do you say to that?‑‑‑I stand by my statements.
PN790
You said earlier you didn't know what it meant in 2019 but you thought it was a quarterly - well, you weren't involved in negotiations, but you always just assumed it was a quarterly figure; is that right?‑‑‑That's always been my understanding, yes.
PN791
I'm putting it to you that you knew exactly what the CPI provision meant as an annual figure and that was your motivation for leaving it out of the draft document?‑‑‑No, I reject that claim completely.
PN792
We have heard from multiple witnesses for the union where they've accepted that there was at least one bargaining meeting where it was discussed how you'd come up with the CPI figure, how you'd come up with a 1.5 per cent offer, and that's when you showed, I think, you showed or maybe gave someone a copy of the September quarter 2021 figures; is that right?‑‑‑No, the first time I gave someone the September CPI was at a bargaining meeting at South Street.
PN793
At South Street?‑‑‑Yes.
PN794
Who was that?‑‑‑I believe it was Mr Thain who I - I actually passed it around the room, from memory, or it was passed amongst the bargaining reps, myself and Mr Kuun, but I do definitely recall explaining it in more detail to Mr Thain.
PN795
You think it was circulated that way?‑‑‑It was circulated that way.
PN796
You had a single sheet and you say it went around the room; is that right?‑‑‑Yes.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN797
We have heard evidence to the effect that it was put on a table, not that it was circulated. What do you say to that?‑‑‑No, I reject that.
PN798
You say it was a printed sheet, just one copy?‑‑‑Yes.
PN799
Who were the people who saw it at that meeting?‑‑‑Myself, Mr Kuun, Mr Thain, Mr Purchase, Mr Wilson, Mr Cole and potentially Mr Nicholson was there as well at that one, and - I can't recall - I think Mr Brad Clay was also present at that meeting.
PN800
Just have a look at your statement, please. Where in your statement does it say that you circulated the CPI sheet that you say you did?‑‑‑Yes, at point 18, I think it is. Yes, so it doesn't specifically say that I circulated that.
PN801
But you're saying it now; is that right?‑‑‑Yes, when I think back to that meeting, I specifically recall discussing it with Mr Thain. I sort of can revisit that room where I recall it being passed around, yes.
PN802
You say that was at the November 2021 - late October/November 21?‑‑‑Sorry, I'm just looking back through my statement. Yes, so it's around late October/early November, I think it was.
PN803
What was your basis for circulating that document?‑‑‑My basis for circulating that document, it was part of the research that I'd done into what the negotiations - you know, what would be our support to justify a fair and competitive rate against what the market is, what inflation is, what our competitors are. That research was done as part of that.
PN804
We have heard evidence from the union negotiators who say there might have been a document placed on a table but not circulated. You're saying that's not right?‑‑‑Can you repeat that, please.
PN805
We have heard evidence from some of the union negotiators that that document - there was a printed document that was placed on a table, but we've not heard that it was actually circulated. You are adamant that it was circulated; is that right?‑‑‑Yes.
PN806
Let's go to the toolbox meetings, if we can, please. What room were the toolbox meetings held in?‑‑‑WG11 that room is known as.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN807
Can you describe that room? That's on South Street, that's not in the refinery, that's in South Street?‑‑‑No.
PN808
Where's WG11?‑‑‑WG11 is located on site.
PN809
At?‑‑‑At the refinery.
PN810
Can you describe the room for us?‑‑‑Yes, so quite a large TV. So, you've got an entrance from either side of the building, east and west, probably capacity is around 80 to 100 people, quite a large TV up on one end, the most southern end of the building, you know, a hard drive and sort of computer set up over on the western side. Yes, quite a large open room, a bit bigger than this, yes.
PN811
You said before the presentation, it was on the large screen and it was done via a couple of different PDFs. Mr Nicholson was driving the computer at that time; is that right?‑‑‑Yes.
PN812
Because they're two different PDFs, at what point did you have to stop one presentation and then put up the CPI figure?‑‑‑So we scrolled through the enterprise agreement with all the highlighted changes and then the CPI sheet was at the back end of that, a separate slide, but that was the second document that was presented.
PN813
PDF documents don't have slides, they've got pages?‑‑‑Well, pages.
PN814
Was it one document or two different ones?‑‑‑Two different documents, one being the enterprise agreement, one being the September CPI sheet.
PN815
You say you spoke to the enterprise agreement, particularly the changes?‑‑‑Yes, so they were highlighted on the sheet.
PN816
Then Mr Nicholson must have minimised the first PDF and then, you know, found the other document and started it up?‑‑‑No, I believe they were both open, the documents, the PDF documents.
PN817
Maybe tabbed between them? I'm sorry to do the IT language, your Honour, but, you know - - -
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN818
THE DEPUTY PRESIDENT: Perhaps you could have been of assistance this morning to us showing your IT knowledge there?
PN819
MR TAYLOR: I try and stay away from it these days.
PN820
THE DEPUTY PRESIDENT: Tabs.
PN821
MR TAYLOR: Tabs, thank you.
PN822
What did you say once you'd gone to that second PDF document?‑‑‑So, just talked through it. So, I sort of - yes, quite a lot of people in the room, so sort of just talked through what CPI is and really to help, I guess, educate people and myself around what it actually all means. So, yes, the way I always sort of look at it is we've got quite a large workforce and when you're, you know, I guess, working with a smaller group of people, it's always important to try and, at a toolbox, deliver the message to people so you can try and relate it to everybody in the room.
PN823
You said the room was for 80 to 100 people, but we were still in COVID period before there was any sort of real transmission at that point in time?‑‑‑Yes, that's correct.
PN824
So, you did it in two different meetings. How many people?‑‑‑Probably 30 to 35, maybe, in each, somewhere around there.
PN825
How many employees are covered by the agreement?‑‑‑It does vary depending on what the workload is, but if you looked at that specifically based at Lytton, you would run somewhere around 60 to 80, but sometimes it's significantly more than that.
PN826
But the agreement doesn't cover anyone except for the people at Lytton; right?‑‑‑Yes, but we do have work scopes that go up and down, so we get an influx of people and they're covered by that agreement when on the site.
PN827
You don't know how many were covered by the agreement at the time it was made?‑‑‑So, specifically you would - you know, anybody who works on that site on the day when it goes to a vote, then they are entitled to vote on that agreement.
PN828
But you don't have a number?‑‑‑Not exactly, no.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN829
I'm trying to work out maybe how many people didn't attend the meetings?‑‑‑This particular meeting in November?
PN830
The two toolbox sessions?‑‑‑Yes, look, it would be minimal. I would think - - -
PN831
THE DEPUTY PRESIDENT: They were paid for meetings, I assume?‑‑‑Yes.
PN832
MR TAYLOR: You would normally take minutes of the toolbox meetings, or someone would?‑‑‑Yes, so that meeting was an information session meeting before we were going to vote on the agreement. Other toolbox meetings we run monthly, yes, we have an open Q and A in each of them and, yes, generally there's some minutes taken.
PN833
I assume there's minutes that have been made from the other bargaining meetings as well that have preceded the toolbox meetings? Are there minutes from the bargaining meetings?‑‑‑Negotiation meetings?
PN834
Yes, yes?‑‑‑Yes.
PN835
But you haven't put those into your evidence?‑‑‑No, I didn't submit them as part of it.
PN836
Were there minutes from the toolbox meetings?‑‑‑From the negotiation meetings.
PN837
No, sorry, back to the toolbox meetings. Were there minutes from those sessions on 19 November?‑‑‑No, there was the two PDF documents and an attendance sheet.
PN838
You didn't make those two PDF documents available to the people who weren't there on the day or just as an ongoing record put them in the toolbox minutes?‑‑‑So, the agreement went to every employee that was eligible to vote, so they did get a copy of that agreement.
PN839
How did you distribute that?‑‑‑That went to their email.
PN840
But you didn't send the CPI document to those people?‑‑‑No.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN841
Do they have a corporate email address?‑‑‑No, so when it goes to vote, I believe it goes to their personal email address.
PN842
Do these workers, like the scaffolders, have a corporate email address?‑‑‑No, I don't believe so.
PN843
And that's how the vote was done it, was it, an electronic vote?‑‑‑No, no, so an email was sent out with the - you know, informing employees that we'd be going to vote and this is the agreement that you're voting on, and then the vote day, which was done in December, was done on a secret ballot.
PN844
We have heard from multiple witnesses today that you didn't display the CPI sheet as you say you did. What do you say to that?‑‑‑I reject that claim.
PN845
Those witnesses either say that you didn't speak about the meaning of the CPI provision, or they've got no recollection at all of you saying it.
PN846
MR FOLLETT: I object to that. I think the second part is a fair characterisation, but not the first part.
PN847
THE DEPUTY PRESIDENT: Thank you, Mr Follett. Do you want to - - -
PN848
MR TAYLOR: Very good. We have heard from multiple witnesses that they have got no recollection about you speaking to the meaning of the CPI provision. How do you explain that?‑‑‑I mean, look, I can't comment on their behalf.
PN849
All right?‑‑‑I know what I delivered there on the day. And, you know, when I look around the room in a toolbox or a mass toolbox like that, if you've got 30-odd people or more sometimes, I mean if they're not paying attention or someone is down the back, it can be difficult for them, you know, maybe they don't feel it's important to them, or they're not interested, or they're distracted, but I can't really comment on what they see.
PN850
You didn't actually circulate the document at the toolbox meetings, did you?‑‑‑No, not at that toolbox.
PN851
No one else did? No one else circulated the PDF, particularly the CPI document, at the toolbox; is that right?‑‑‑No.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN852
We've heard that there was evidence that discussions at the negotiating meetings to discuss about how you'd come up with the figure of two and a-half per cent, but not how CPI was actually to mean in the clause. I'm putting it to you that there was no discussion at the bargaining meetings about the meaning of the CPI provisions in 2.6?‑‑‑No, I reject that. I absolutely explained CPI during the negotiation meetings.
PN853
When you say you explained CPI, what do you mean?‑‑‑How that sheet is based on the quarterly figure and that was how we were in negotiations - was around based on the quarterly figure.
PN854
Nothing further, your Honour.
PN855
THE DEPUTY PRESIDENT: Just a few questions from myself, Mr Cotton?‑‑‑Yes.
PN856
The September CPI document, I'll call it, and you're familiar with it, and that's the one that you've styled with JC4, I think it is. Do you have that in front of you? Is it JC4 or 5? JC4, the September quarter?‑‑‑Sorry, I'm just trying to find it.
PN857
Page 198?‑‑‑Yes, sorry.
PN858
You say that's the document that you circulated in the meeting in November, or you late late October - 18 in your statement?‑‑‑Yes, so at the bargaining meeting?
PN859
Yes?‑‑‑And - yes.
PN860
So let's start with the bargaining meeting, which is 18, isn't it, paragraph 18 on your statement?‑‑‑Yes, let me just confirm. Yes, that's correct.
PN861
That was a bargaining meeting. Mr Thain was there, Mr Kuun, Mr Wilson and you mentioned Mr Purchase and perhaps one other, I think?‑‑‑Yes.
PN862
That was a specific bargaining meeting at that stage?‑‑‑Yes.
PN863
You say her it was specific to discuss the offer of one and a-half for the first year's increase because the log of claims from the AWU was 3 per cent?‑‑‑Yes.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN864
I think you said earlier that that was one of the documents amongst some other information you used to inform yourself of what increase you were going to propose back, or the counter offer back?‑‑‑Yes.
PN865
Not just to inform yourself, but obviously the organisation that you were bargaining on behalf of?‑‑‑Yes.
PN866
In 19, you say you explained how you reached the 1.5, by reference to the September quarter being 1.3 at the time?‑‑‑Yes.
PN867
Which is what you say, you say it's the most recent quarter. Mr Thain was in that meeting and you spent time explaining to him the CPI, the quarterly figure. Were there any questions about why are you using the quarterly and not the annual figure?‑‑‑No, I think there was an initial discussion around what is CPI, but I don't recall that it was specifically around why is it annually or why is it quarterly, yes.
PN868
On that sheet - I'll refer you back to it?‑‑‑Yes.
PN869
Under the increase for Brisbane, it shows, obviously, two numbers, one the annual, one the quarterly, both fitting under the heading of 'September Quarter 2021'. 'Capital City September Quarter'?‑‑‑Yes.
PN870
The first one is Brisbane, quarterly 1.3, annual 3.9?‑‑‑Yes.
PN871
Were there any questions about, 'Well, why aren't we getting 3.9 if that's the case'?‑‑‑Not that I recall around specifically why we're not getting 3.9. I don't recall that Mr Thain or anyone actually specifically asked that.
PN872
Right?‑‑‑I remember talking in around how is the - probably more so the quarterly made up around the items below in figure 1. We talked around how it's made up and what contributes to that, you know, cost of living or the CPI has gone up, but what's factoring into that. I certainly remember talking to that.
PN873
The mechanism behind how CPI is calculated?‑‑‑Yes, I definitely remember talking to that.
PN874
That was the focus of the conversation rather than the raw score or the raw number?‑‑‑Yes.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN875
On that basis, you said, from what I understand you're saying, 'It's 1.3 and we'll offer 1.5. That's how we develop the 1.5'?‑‑‑Yes.
PN876
If I'm paraphrasing what you're trying to say?‑‑‑Yes, and there was also, you know, some conversation around our other competitors. I know that came up later, but there was some of that as well around, 'We're asking for three, why are you only offering one and a-half?' sort of, you know, 'How did you get to that position?' basically was what we were trying to explain to them.
PN877
But no question that they should be looking at the annual figure of 3.9?‑‑‑No, no.
PN878
The only focus of the conversation was 1.3?‑‑‑Yes, 1.3 and why we're not getting the three that we asked for - that they'd asked for, sorry.
PN879
You had some competitor data as well, you say, that later was introduced to the bargaining committee?‑‑‑Yes.
PN880
You say that Mr Kuun, Mr Cole and Mr Wilson and Mr Thain understood what you were saying?‑‑‑Yes, I - - -
PN881
You don't know what they think but - - -?‑‑‑No.
PN882
- - - you spent time explaining it?‑‑‑Explaining it, yes.
PN883
Did you get to the point where you thought it was understood?‑‑‑Yes.
PN884
Was there a discussion about how a CPI might move each quarter?‑‑‑Yes.
PN885
What happened in that discussion?‑‑‑I think it was around it's not always - I can't recall exactly what it was - but around the quarter can be significantly different and, you know, from memory, I think I was really saying we don't know what that December quarter is yet because it hasn't occurred. So, being mindful that we're not going to - we can't overcommit, we're not at three, but we don't know what it is going to be, and we also didn't want to go with a, 'Sorry, the offer is zero.' It was around, yes, let's wait and see what it is. We're at one and a-half, you want three, we're sort of halfway there. If there's a little bit more then, you know, let's see where we can go dealing with our client as well, I guess, trying to understand - gauging where they were. Yes, I think that was sort of it around the quarterly discussion.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN886
Was it ever raised again, the quarterly conversation, the discussion about the percentage and how the mechanism - apart from the toolbox talk where you say you raised that and spoke to it?‑‑‑Yes. No, I don't believe so. We'd sort of moved away from around the CPI. It became more about what are our competitors and who are our competitors.
PN887
Yes?‑‑‑So it sort of moved more at looking at, yes, what is that, who are we competing for this contract with, I guess, is where we ended up.
PN888
Had you had meetings with Ampol at that stage leading towards - you were trying to bring two - not you necessarily, but the organisation was trying to land two agreements at the same time together?‑‑‑Yes, almost, yes, yes, which is not ideal, I think. Yes, so we had had some initial meetings with Ampol and it was really an update. So, the initial meetings are more of a check-in to see how are we progressing, are we moving, where's it at, is there any concerns for protected action, and that sort of stuff, so more just keeping them up to date, and then, as we got closer to the pointy end, absolutely right, we were trying to say, 'Well, you know, we're very close to getting our EBA sorted, but we don't want to overcommit in the event that we're going to be priced out of the market.' So, yes, the meetings with Ampol became, you know, probably more detailed towards the end of the negotiation period.
PN889
At the toolbox talk - I think there were two of them because you had to break the groups into two for COVID, or probably keep the plant running, or something like that - what did you explain to that group about the CPI in that clause or how it was meant to - - -?‑‑‑So, I talked through around specifically that, 'We're going to vote on an agreement that has got a 2 per cent increase for the first year. If the CPI quarter is higher for December, then ultimately you will get whatever is higher, but what you're doing is you're guaranteed a 2 per cent pay rise, so, you know, you can lock that in no matter what. If it goes up above, if the December quarter is above it, then, yes, sure, you pick up whatever the additional is.'
PN890
But you couldn't be sure that you said 'quarter' in there?‑‑‑Yes, look, I think I would, you know, given that that was always my belief that it was around the quarter. I can't recall exactly if I said 'quarterly', but I certainly would have explained, given that that was my understanding of it.
PN891
Did you get any questions on the pay increase and how it might work?‑‑‑No, I think there was a question around the sign-on payment, I think, from one or two individuals, which was answered. That was fine. No, I don't recall that there was any specific questions in relation to that.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN892
Then the agreement was voted up and there was a discussion post that when the December quarterly CPI came out?‑‑‑Yes.
PN893
You gave that to Mr Thain?‑‑‑Yes.
PN894
And you say, in 34, which is on page 130, you explained the 2021 agreement increase of 2 per cent were, as predicted, more than what was expressed in the CPI December quarter sheet, which is at 1.6. Did you predict that or was that just your thoughts when you say 'as predicted'?‑‑‑As predicted, yes, so I think around saying that, you know, that quarterly was going to be around somewhere between one and a-half or two, so sort of just saying, you know, 'As predicted, somewhere around there.'
PN895
Mr Thain didn't say anything about that?‑‑‑No. No, I don't think there was too much conversation, you know, following that; it was sort of taken away.
PN896
Do you know when approximately that meeting was? You say towards the end of January. I assume that's when the quarterly sheet comes out?‑‑‑Yes, I think it's late - it might be Australia day or thereabouts that the CPI figure is released. Yes, I can't recall exactly what day, but, yes, late January or early February it would have been.
PN897
What's the benefit if it's interpreted as annual? What's your understanding?‑‑‑The benefit if it's interpreted annually?
PN898
Yes, for the bargaining committee or for the employees?‑‑‑So I guess if you saw consistent increases throughout the entire year, then there would be a substantial increase over the entire year, which is somewhat - you know, I could see that would be beneficial, but it's also very open; you don't know what it could be over a whole year.
PN899
Why do you think this matter has been raised, this question?‑‑‑So I think it's been raised or I feel it's been raised that - maybe there's some conversation around the wording or once the agreement has been lodged, you know, people have sort of had a look back at it and gone, 'Well, you know, I interpret that differently' or 'I read that differently' or, you know, 'There's an opportunity that we could, you know, potentially get more of an increase out of this, so let's see if we can' and then, yes, sort of it's gone from there.
PN900
But you say you've explained it fairly clearly?‑‑‑Yes.
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN901
I will allow questions from both as I have covered some material.
PN902
MR TAYLOR: No questions, your Honour.
PN903
THE DEPUTY PRESIDENT: No more?
PN904
MR FOLLETT: No more.
THE DEPUTY PRESIDENT: Thank you very much for your time?‑‑‑Thank you.
<THE WITNESS WITHDREW [4.03 PM]
PN906
THE DEPUTY PRESIDENT: You have got one more witness, haven't you?
PN907
MR FOLLETT: The final witness is Mr Peter Kuun.
PN908
THE DEPUTY PRESIDENT: Do you expect much in cross-examination? Do you have some - - -
PN909
MR TAYLOR: Not as much as we just did.
PN910
THE DEPUTY PRESIDENT: Yes, all right.
PN911
MR FOLLETT: There's no examination other than tendering his statement.
PN912
THE DEPUTY PRESIDENT: All right.
PN913
MR TAYLOR: Your Honour, I have a sick son at home. I'm not asking to leave immediately, but I would perhaps prefer to do so after this witness, if we can find a way.
PN914
THE DEPUTY PRESIDENT: Yes, I was thinking it would make a logical conclusion, depending on how many questions you have, and if you feel you need to come back tomorrow morning to finish off, if we don't finish, but I'm content - - -
*** JAMES ANDREW COTTON XXN MR TAYLOR
PN915
MR TAYLOR: As I said earlier, I'm flexible to do oral submissions tomorrow, or to do it in writing.
PN916
THE DEPUTY PRESIDENT: Yes, I think that's where we might land is oral submissions tomorrow. Thank you.
PN917
THE ASSOCIATE: Please state your full name and address for the record.
MR KUUN: Peter Kuun, 37 South Street, Lytton.
<PETER KUUN, AFFIRMED [4.05 PM]
EXAMINATION-IN-CHIEF BY MR FOLLETT [4.05 PM]
PN919
Mr Kuun, your name is Peter Kuun?‑‑‑Correct.
PN920
You are employed by Contract Resources Pty Ltd?‑‑‑Yes.
PN921
As presently the south-east regional manager?‑‑‑Yes.
PN922
You have prepared a statement for the purposes of these proceedings?‑‑‑Yes.
PN923
Do you have a copy of that with you?‑‑‑I do, yes.
PN924
It is dated 15 August 2022 with 21 paragraphs and one annexure?‑‑‑Correct.
PN925
Have you had an opportunity to read that recently?‑‑‑Yes.
PN926
Are the contents true and accurate?‑‑‑Yes.
PN927
Do you need to make any changes?‑‑‑No, thank you.
PN928
Do you adopt it as your evidence?‑‑‑Yes.
PN929
I tender that.
*** PETER KUUN XN MR FOLLETT
THE DEPUTY PRESIDENT: Thank you very much. PK01.
EXHIBIT #PK01 WITNESS STATEMENT OF PETER KUUN
MR FOLLETT: Nothing further.
CROSS-EXAMINATION BY MR TAYLOR [4.06 PM]
PN932
Mr Kuun, you weren't involved in the negotiations for the 2019 agreement, or you were?‑‑‑No, I wasn't.
PN933
You weren't present at any of the meetings?‑‑‑No.
PN934
Had discussions with anyone about that? Obviously, you wanted an agreement of some sort. Did anyone explain to you the changes that were made in that agreement to you?‑‑‑Nothing that I can recall.
PN935
What do you think the CPI provision meant in the 2019 agreement?‑‑‑I had no idea in the 2019 agreement. I was not involved at all.
PN936
We will go to the 2021 negotiations. You say that Contract Resources spoke about how you came up with the proposed 1.5 per cent pay rise based on the CPI figures on the CPI sheet; is that right?‑‑‑Part of it, yes.
PN937
That's where that sheet had been shown to one of the AWU negotiators?‑‑‑So it was shown in a meeting to, as per my statement, at least three that I can recall. There may have been others.
PN938
Like it was shown to them?‑‑‑Yes, in a - - -
PN939
Who held it?‑‑‑In a negotiation. Mr Cotton.
PN940
Mr Cotton held it?‑‑‑Yes.
PN941
There was only one copy?‑‑‑Yes, I believe so, yes.
PN942
So you didn't have multiple copies to circulate?‑‑‑I don't recall, but I don't - I only know that there was definitely one copy.
*** PETER KUUN XXN MR TAYLOR
PN943
Was that one copy circulated or just shown to three people, did you say?‑‑‑It was shown to everybody within that negotiation meeting.
PN944
Who were they?‑‑‑As per my statement, there's myself and Mr Cotton, Mr Wilson, Mr Cole and Mr Thain, but, as per my statement, I can't guarantee that there weren't any other bargaining reps there at the same time.
PN945
Your evidence is that the purpose of showing that pay rise was to give a reference point for where that 1.5 per cent figure had come from; is that right?‑‑‑Yes, it was part of that, yes.
PN946
Was there a discussion at that meeting about how clause 2.6, the CPI provision in that clause was supposed to - was somehow affected by this document?‑‑‑Sorry, can you just repeat the question?
PN947
There's a CPI figure in clause 2.6 of the new and current agreement?‑‑‑Yes.
PN948
Was there an explanation at that meeting that this is the CPI figure that is supposed to reflect, you know, the equivalent to the CPI figure that's in clause 2.6?‑‑‑My recollection is Mr Cotton explaining to Mr Thain the CPI - the quarterly CPI, and that's where the 1.5 per cent came from.
PN949
No, no, I'm not talking about the fixed 1.5 per cent, I'm talking about the CPI provision, the second part of that, the greater of?‑‑‑Yes, explaining that the CPI was taken from the quarterly. There wasn't anything that I can recall additionally to what that number may become.
PN950
Does your witness statement say that?‑‑‑As in?
PN951
Specifically that the CPI figure in clause 2.6 would be referenced by the quarterly figure?‑‑‑Can I just ask, are you referencing point 10 in my reference statement, in my - - -
PN952
Sure, point 10, which says you were proposing to insert clause 2.6 - the figure you were proposing to - the fixed year's percentage increase that you were proposing in the clause was based upon, and just higher than, the Brisbane quarterly figure. Right? So that's the fixed figure?‑‑‑Yes.
*** PETER KUUN XXN MR TAYLOR
PN953
That's not the second part of clause 2.6, which refers to December quarter CPI and then it's the greater of the two?‑‑‑Yes. So, there was no discussion, from my recollection at that point, around those two. It was around the 1.5 and explaining the quarter versus annual.
PN954
So the quarter versus annual thing was how you'd come up with the fixed figure?‑‑‑That was the number that we showed, yes.
PN955
Did you actually explain that second part or was there a discussion about that second part of the clause 2.6 in any of those bargaining meetings?‑‑‑No, this is the only - - -
PN956
Not the fixed figure, the - - -?‑‑‑This was the only reference to CPI that I recall. Mr Cotton explained - I was with him in the meeting and Mr Cotton explained that.
PN957
So that's the only - it was only ever raised once, to the best of your knowledge, and that was in reference to the fixed figure, 1.5 per cent?‑‑‑It was in reference - no, so it was in reference to the quarterly, understanding it as quarterly, so 1.5 per cent, which was obviously what we'd worked off.
PN958
Paragraph 10 of your statement says that:
PN959
The first year's fixed percentage increase that we were proposing to insert (the 1.5 per cent) was based upon, or higher than, the Brisbane quarterly figure.
PN960
Right?‑‑‑Correct.
PN961
So your evidence is that the quarterly figure sort of demonstrated - you wouldn't have used the September figure, but that's how you came up with the 1.5 per cent?‑‑‑That was the number that we used, yes.
PN962
But there's nothing in your statement that actually says where that September quarter CPI was an example of how the quarterly CPI would be used to determine the second part of clause 2.6, the CPI?
PN963
MR FOLLETT: Well, 'Nothing about what's in the statement', I think that's a question of interpretation. I interpret that paragraph quite differently. So, if he can either be more express, rather than asking how one might interpret the statement, as to what his actual evidence is.
*** PETER KUUN XXN MR TAYLOR
PN964
THE DEPUTY PRESIDENT: Thank you. Yes, what do you have to say, Mr Taylor?
PN965
MR TAYLOR: You say paragraph 10 of your evidence is to say that you didn't just derive the 1.5 per cent from it, but also you say that you were intending clause 2.6 to be based on a quarterly figure, not the September figure but something like that later on; is that right?‑‑‑Yes, well, correct, as per the December quarter figure.
PN966
You didn't attend any of the toolbox meetings, did you?‑‑‑No.
PN967
Nothing further, your Honour.
PN968
THE DEPUTY PRESIDENT: Thank you very much. Anything in re-examination?
PN969
MR FOLLETT: No re-examination.
THE DEPUTY PRESIDENT: Thank you very much for your brief time. You can go?‑‑‑Thanks.
<THE WITNESS WITHDREW [4.14 PM]
PN971
THE DEPUTY PRESIDENT: Mr Taylor, as I recall, you were keen to move and I think it's probably an opportune moment. What do you have to say, Mr Follett?
PN972
MR FOLLETT: If we resume at 10 o'clock tomorrow, we will finish submissions, hopefully, by lunch.
PN973
THE DEPUTY PRESIDENT: That's okay. So, oral submissions tomorrow at 10.
PN974
MR TAYLOR: Yes, your Honour.
ADJOURNED UNTIL WEDNESDAY, 24 AUGUST 2022 [4.14 PM]
*** PETER KUUN XXN MR TAYLOR
LIST OF WITNESSES, EXHIBITS AND MFIs
THOMAS JACK PURCHASE, AFFIRMED....................................................... PN81
EXAMINATION-IN-CHIEF BY MR TAYLOR.................................................. PN81
CROSS-EXAMINATION BY MR FOLLETT..................................................... PN87
THE WITNESS WITHDREW............................................................................. PN151
EXHIBIT #JC01 STATEMENT OF MR COLE................................................ PN160
JOSEPH OLEXIENKO, AFFIRMED................................................................. PN180
EXAMINATION-IN-CHIEF BY MR TAYLOR................................................ PN180
EXHIBIT #JO01 STATEMENT OF MR JOSEPH OLEXIENKO.................. PN186
CROSS-EXAMINATION BY MR FOLLETT................................................... PN187
THE WITNESS WITHDREW............................................................................. PN229
AARON TRAVIS WILLMAN, AFFIRMED...................................................... PN237
EXAMINATION-IN-CHIEF BY MR TAYLOR................................................ PN237
EXHIBIT #AW01 STATEMENT FROM MR AARON WILLMAN.............. PN246
CROSS-EXAMINATION BY MR FOLLETT................................................... PN246
THE WITNESS WITHDREW............................................................................. PN282
JAMES GILMORE WILSON, SWORN............................................................ PN299
EXAMINATION-IN-CHIEF BY MR TAYLOR................................................ PN299
EXHIBIT #JW01 STATEMENT OF MR JIM GILMORE WILSON............ PN307
CROSS-EXAMINATION BY MR FOLLETT................................................... PN307
RE-EXAMINATION BY MR TAYLOR............................................................ PN411
THE WITNESS WITHDREW............................................................................. PN417
JAIME PETER THAIN, AFFIRMED................................................................. PN420
EXAMINATION-IN-CHIEF BY MR TAYLOR................................................ PN420
EXHIBIT #JT01 WITNESS STATEMENTS OF JAIME THAIN.................. PN428
CROSS-EXAMINATION BY MR FOLLETT................................................... PN429
THE WITNESS WITHDREW............................................................................. PN680
JAMES ANDREW COTTON, AFFIRMED....................................................... PN689
EXAMINATION-IN-CHIEF BY MR FOLLETT.............................................. PN689
EXHIBIT #COTTON01 FIRST WITNESS STATEMENT OF JAMES ANDREW COTTON................................................................................................................................. PN709
EXHIBIT #COTTON02 SECOND WITNESS STATEMENT OF JAMES ANDREW COTTON................................................................................................................................. PN709
EXHIBIT #CPI01 CPI SHEET............................................................................ PN726
EXHIBIT #CPI02 CPI SHEET............................................................................ PN726
CROSS-EXAMINATION BY MR TAYLOR..................................................... PN748
THE WITNESS WITHDREW............................................................................. PN905
PETER KUUN, AFFIRMED................................................................................ PN918
EXAMINATION-IN-CHIEF BY MR FOLLETT.............................................. PN918
EXHIBIT #PK01 WITNESS STATEMENT OF PETER KUUN..................... PN930
CROSS-EXAMINATION BY MR TAYLOR..................................................... PN931
THE WITNESS WITHDREW............................................................................. PN970