PN1

SENIOR DEPUTY PRESIDENT HAMBERGER: I might just get the appearances again in case something might have changed.

PN2

MR M BARONI: Baroni, initial M, and I appear for Truck Moves, Quick Shift and Vehicle Express, your Honours of the Commission, my apologies.

PN3

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you, Mr Baroni.

PN4

MR BARONI: Also appearing with me is Mr Maxim and Mr Leon.

PN5

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you.

PN6

MR M GIBIAN: May it please, I appear for the Transport Workers Union, Ms Carr is with me.

PN7

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you, Mr Gibian.

PN8

MR P RYAN: If the Commission pleases, my name is Ryan, initial P and I appear for the Australian Road Transport Industrial Organisation in this matter.

PN9

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you, Mr Ryan.

PN10

Mr Baroni, have we got your witnesses? I don't think there's anything else.

PN11

MR BARONI: We have two witnesses. Before I call the witnesses, I thought I'd make an opening remark which may be helpful. (a), first to refresh everybody's memory of the background to the proceedings and then what my clients seek in relation to the proceedings.

PN12

Your Honours will recall that the background to part, at least of these proceedings was an application by the Transport Workers Union, pursuant to the award review process that the coverage of the award be expanded to cover what was found by the Federal Court in those proceedings, to be an industry not covered by this award, that is the Road Transport and Distribution Award.

PN13

That was the background and there was a declaration by the Federal Court, your Honours and Commissioner will remember that my client, at least as far as Trucks Moves was concerned was not covered by this award because it did not carry goods. The effect of that decision was that it didn't fall within the description contained in the award.

PN14

The proceedings therefore, amongst other things that the TWU sought was an expansion of the definition by way of TWU2 which in effect, asked the Commission to insert a new subclause (j), the effect of that was to include vehicle relocation within the scope of the award.

PN15

Last year, your Honour, the Full Bench heard evidence about whether that should be so amongst other matters dealing with variations that the TWU sought. The Full Bench made a decision, amongst other things to grant that application and therefore now covering the vehicle relocation industry within the scope of the award.

PN16

In terms of the findings of the Full Bench, your Honours and Commissioner, the substance of those findings - can I withdraw that. The decision in effect was found at paragraph 87 of the decision and I assume your Honours have that decision. That's the Full Bench decision (2017) FWCFB 1913 of 6 July 2017.

PN17

Now the decision is in fact, as far as it relates to the coverage, is encapsulated at paragraph 87 and that seems to be the sum total, and I don't mean this in a pejorative way but it seems the sum total of the conclusion that the Full Bench came to in relation to whether coverage would be expanded as sought by the TWU or not.

PN18

Your Honours and the Commissioner expressed this view:

PN19

We agree with the TWU submissions that the exclusion of drivers in the vehicle relocation industry from any modern award coverage is anomalous.

PN20

The Full Bench found quite clearly there, it was an odd situation whereby a business such as Truck Moves or the vehicle relocation industry was not covered by any award, so it wasn't a finding as I understand as I understand the passage about that it wasn't covered by the Transport Award, if I can refer to it like that, but simply a finding that it was not bound by any award.

PN21

Your Honours and Commissioner went on to say:

PN22

The situation is inconsistent with the requirement to ensure the modern awards, together with the national employment standards provide a fair and relevant minimum safety net of terms and conditions.

PN23

Then your Honours went onto say:

PN24

We also agree that the appropriate modern award to cover the employees in question is the road transport award.

PN25

That's where your Honours conclude that well, this is the appropriate award. It's not clear why that finding was made but presumably, the view was that it's at least related in some way to the transport industry, but I note that there's no finding by the Full Bench it is the same as the transport industry. I presume therefore, based on that, that the Full Bench went on to say:

PN26

However, we do consider that there is an arguable case that some of the provisions of the road transport award should be modified in their application to this group of employees, having regard to the particular features of the work.

PN27

The Full Bench made an acknowledgement there in my submission, that there is some differences which need to be determined by this Full Bench and by differences, one must take that to mean particular features of the vehicle relocation industry which are not the same. It must follow, given that passage, are not the same as the transport industry.

PN28

Certainly, my client no longer quibbles with the fact that they are now or about to be bound by the coverage of this award. That's not the issue that we're here to debate today, but rather what the issue is that we're here about today, is what provisions of the award should be modified, if any, and therefore what in total should apply to my clients. That's the issue that needs to be determined today.

PN29

Can I also make this observation, that in relation to the passage by the Full Bench, it seems to be no limitation - and I don't mean that in a sense that it's an absolute free for all and a rehearing of matters, but there seems to be no limitation on what the issues that need to be looked at are limited to. Therefore, as a consequence of that passage, you'll hear evidence today about the varying features between the vehicle relocation industry and the transport industry, together with various provisions of the award, including the classifications which as a matter of logic follow the rates of pay, whether they're suitable or not for the business of my clients.

PN30

That then gives rise in my submission, to whether the Commission can in fact, vary rates of pay in a context of an award modernisation proceeding. I won't go to this in detail, but my friend puts it against me in the TWU submissions and says that the application or the argument is misconceived. We reject that. That passage leaves open, as I've said your Honours and Commissioner at paragraph 87, that the scope to argue is clear as day that there are various provisions which need to be identified which may or may not suit.

PN31

We have, at least a couple of ways home on this. The first is to satisfy the Full Bench of those provisions, including we say, the relevant grades and the rate of pay which is analogous to those particular grades. In my submission, if we satisfy the Commission, in accordance with the principles of - I'll withdraw that. In accordance with section 135 and 156(2) I think, then we say we can get it over the line.

PN32

Your Honours may also come to the view that well, there are significant differences or differences which need to be taken into account and that may well be limited to, for example, apart from some particular clauses which have been articulated in the submissions and the fact that the draft order articulates what you see. Your Honours and Commissioner may come to a view that the grades themselves don't reflect, at all, the nature of the work that my clients perform.

PN33

There are a number of ways home in relation to our application, if I can call it that, that the Bench needs to turn its mind to. Can I just briefly make this observation. 134 sets the principles, the objectives I should say. Section 135 makes it clear that a modern award minimum wages can not be varied under this part except as follows, and then 135(1)(a) says:

PN34

Modern award minimum wages can be varied if the Fair Work Commission is satisfied that the variations justified by work value reasons.

PN35

Then it refers to section 156(3) which is the relevant provision, we say, attracts the jurisdiction of the Commission to do so. 156(3) sets out the following:

PN36

In a four yearly review of modern awards the Fair Work Commission may make a determination varying modern awards minimum wages only if the Fair Work Commission is satisfied with the variation of the modern award minimum wages justified by work value reasons.

PN37

Hence, your Honours and Commissioner, that the way our case has been structured is to draw the attention of the Full Bench to those work value reasons in our submissions. That is, what we're asking the Full Bench to do is have regard to the differences in the industry. It's an industry that's never been regulated. There can be no quibble about that fact. The Federal Court proceedings and on appeal, have made it clear that the industry itself did not fall into the road transport industry. There is no quibbling about that.

PN38

Therefore, what we're dealing with is an industry that we say for the first time is now going to be covered by an award. Those factors, that particular factor needs to be taken into account by the Full Bench in determining how and to what extent it should be bound. The Full Bench has made a decision that it's to be bound and again, as I said earlier, we don't quibble with that, that is the decision of the Full Bench.

PN39

It's now time to have a discussion about what provisions of the award should apply and how. Your Honours and Commissioner may be completely against my client on that, but we say it's a relevant consideration because not to do so, (a) would be an infringement on the principles - I'll withdraw that - on the provisions of section 134 in at least that regard to the employer's business, regard must be had to that. On that issue, you will see that there is evidence in the statements of both Mr Whitnall and Mr Bradac about the cost impost.

PN40

That is a significant issue that the Bench needs to take into account because it would be rather unfair if my clients were put in a position whereby by some decision of the Full Bench their business was literally destroyed. That is a possible consequence of simply not having regard to any of the evidence that's put forward in relation to the way my client operates and what its current cost structure is.

PN41

We say they are very important considerations that one must have regard to and they can't be trivialised as may well be suggested by the (indistinct) view that in the sense that they simply say, well you're simply driving trucks and that's the end of the story. There's no difference between the two industries. Well, that argument simply can't be sustained by virtue of the findings of the Federal Court proceedings.

PN42

Of course, the Full Bench its statutory task is somewhat different, as is clear from the award review proceedings and that is to ensure that at least in part, that nobody's left not covered by an award. That is one of the award objectives, but having regard to that, as I've said, it's very important, we say, a principle issue that the views of the employer and its current business structure be taken into account.

PN43

Mr Gibian can shake his head all he wants about the Federal Court proceedings, but they speak for themselves. Well, don't shake your head. That's probably not the way to get something in return. They're my opening remarks, your Honour, I don't think I need to say anything further.

PN44

DEPUTY PRESIDENT SAMS: Mr Baroni, have your clients had any discussions with the union since - almost nine months since the Full Bench's proceedings?

PN45

MR BARONI: I understand your Honour, that there was a conference facilitated by his Honour which - - -

PN46

DEPUTY PRESIDENT SAMS: I mean independently of that conference.

PN47

MR BARONI: Not independently, but I assume that arising from the attitude of the union, I mean that again, I don't mean it pejoratively, but there was simply no way forward. The requirements of each party were 180 degrees apart if I can put it that way. So, there would be little prospect. I note that the TWU in its submissions don't quibble with the transition period, but I think it goes beyond that and obviously part of the order that we seek, encapsulates a transition period.

PN48

But the fundamental issue that my client will face, and again, it simply is a fact that the rates of pay that they pay, have never been analogous to this award, or any award. They've been pegged at a level which is - and we don't resile form this and nor can we, are slightly above the national minimum wage. That's where the business model was pegged.

PN49

You can't simply come along and make a decision, in my respectful submission that overnight it turns the business on its head, without having regard to what consequences that will have for the business and in fact the employees that it employs. It has some 98 casuals and that is evidence which I think was put in the first proceedings. There are all those issues, as I've put to the Full Bench that needs to be considered.

PN50

They are my opening remarks, your Honours and Commissioner. With that I'll call my first witness.

PN51

MR GIBIAN: I was just going to raise a matter or two matters more of a mundane procedural type. Firstly, the Commission as I understand it, has listed today and tomorrow for the hearing of evidence and then there's a further day I think on 13 April. My expectation, and I understand the expectation of the parties generally is that submissions would be on 13 April, is that's convenient to the Full Bench.

PN52

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN53

MR GIBIAN: I don't know whether the full two days will be occupied by evidence, but I think Mr Baroni's estimates are somewhat longer than mine, so it may be that a good proportion is. I have a difficulty tomorrow afternoon and Ms Carr will take our witnesses, if we are still proceeding at that time. I just thought I should, as a matter of courtesy inform the Bench of that.

PN54

The second point in relation to the evidence is that Mr Whitnall and Mr Bradac have made further statements. In part, and I'm not critical of that, but in part they traverse areas that were dealt with in their earlier statement and in relation to which both of those witnesses were cross-examined in the earlier hearings before the Full Bench. I'm working on the assumption, and I don't think there's any contest between the parties that it's not necessary and the Full Bench would presumably, not particularly appreciate canvassing those areas to the extent that they're adequately dealt with in the - - -

PN55

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, we'll obviously look at the cross-examination and the statements that were made previously about that. That's still part of the practice.

PN56

MR GIBIAN: Indeed. It feels a little like Groundhog Day again, but I don't want to try and - I just don't want to take up too much time where matters were adequately canvassed with these exact same witnesses on the previous occasion.

PN57

SENIOR DEPUTY PRESIDENT HAMBERGER: Just to indicate now, we need to start a bit later tomorrow morning. I think we can start at 10.30 tomorrow, that will hopefully still get it all done.

PN58

MR BARONI: Your Honour, just before I do call Mr Whitnall, can I just make one further observation, which touches upon something Mr Gibian said. Mr Gibian is right, that before I go to that, can I just make this last comment in relation to the Full Bench decision which I forgot to make which goes to the evidence that Mr Gibian spoke about.

PN59

In effect, the Full Bench in my submission actually make no findings about the evidence and again, I mean that in any pejorative way. It just simply seems to me that no finding was made about any of the evidence. The analysis of the Full Bench starts at paragraph 38 of its decision in relation to TWU2, I should make clear. It simply refers to the various positions put in the evidence that was led. It makes no findings about any of that evidence and then it concludes that summary, if I can put it that way, at paragraph 66.

PN60

Again, I'm not sure that my friend would quibble with that, but there seems to be no findings of fact in relation to any - - -

PN61

SENIOR DEPUTY PRESIDENT HAMBERGER: No, I think it's just a summary.

PN62

MR BARONI: Yes, it was just a summary, I think, which then leaves that evidence that was led on the first occasion to be dealt with by the Full Bench. We say that evidence is relevant to these proceedings in determining what, if any provisions should be varied. It is also, as Mr Gibian pointed out, the fact that Mr Whitnall and Mr Bradac have filed statements in those proceedings and we don't - they are tendered and I think they are TM2 and TM3 respectively. Mr Bradac is TM2 and TM3.

PN63

There was also a witness statement of Mr Don Clayton that's TM1 and that is evidence we rely on. They're the only procedural matters I want to deal with your Honours and Commissioner, and I call Mr Whitnall.

PN64

Your Honours and Commissioner, before I do, there's just one other matter that I think that I need to deal with. Mr Whitnall's statement makes reference to two videos which are referenced - this is the statement signed 24 November. It makes reference to two videos, I think at paragraph 7 and 8 of his statement. I'm assuming - I'm not quite sure how the Full Bench wants to deal with those, whether they will be played whilst he is giving evidence so to speak.

PN65

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, what do you want to - I presume you want to ask him some questions about the video evidence, I assume, or not?

PN66

MR GIBIAN: No, not really. To the extent he says what's in a video, we can watch a video as well as anyone else can. It's not really - - -

PN67

SENIOR DEPUTY PRESIDENT HAMBERGER: If you don't have questions. We accept it in the evidence unless there are any objections and if it's not required to be played, let's not play it.

PN68

Sorry Mr Ryan, unless you have any questions about it.

PN69

MR RYAN: I simply make the observation that at MW16 at least, I think four of those videos were just straight out lifts from some American ostensible safety system, and I'm not sure the purpose of showing them or giving evidence against those. Secondly, there are two files that I could not access on the CD that were unrecoverable.

PN70

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN71

MR RYAN: I just make those observations. I don't think that latter point is a major point, but.

PN72

SENIOR DEPUTY PRESIDENT HAMBERGER: What do you want me to do with it, or deal with it?

PN73

MR RYAN: Let's just see how things pan out with Mr Whitnall in the witness box. I believe that you're associate has those two CDs loaded and ready to go. Perhaps we may be able to access them if required.

PN74

MR BARONI: Your Honour, sorry, perhaps the way forward would be that we have Mr Whitnall sworn and then those videos can be played.

PN75

SENIOR DEPUTY PRESIDENT HAMBERGER: How long are they?

PN76

MR BARONI: Sorry?

PN77

SENIOR DEPUTY PRESIDENT HAMBERGER: How long does it take for all of them together?

PN78

MR BARONI: Your Honour, I think we can deal with it this way. The relevant one, which I say is relevant anyway, is the one at paragraph 7, MW15. That goes for a couple of minutes. The one at paragraph 8 goes for significantly longer and perhaps we can just simply watch a few minutes of that and deal with it that way.

PN79

SENIOR DEPUTY PRESIDENT HAMBERGER: I mean we can watch them - we don't have to do it during the hearing if there are no questions about the material.

PN80

MR BARONI: I think just for the benefit of Mr Ryan.

PN81

SENIOR DEPUTY PRESIDENT HAMBERGER: Are you saying those are the ones you couldn't see?

PN82

MR RYAN: There were two files that I couldn't see.

PN83

MR GIBIAN: Do you know which ones they were?

PN84

MR RYAN: It was about - I can see the loading the truck of the American video, I could see CCTV Prixcar part one and part two could not be accessed. The safety training video from America I could see. The driver falls off a flat bed, I could see that. The loading and unloading of pallets to do with training of a forklift driver, I saw that. Load securing was UK material which I saw. Prixcar carrying a load and I think that's related to the evidence of Mr Whitnall. That was taken on an iPhone and I could see that. Loading double pallets, or loading pallets too high on a truck, I could see that. So, it was only the Prixcar part one and part two that I could not - it kept telling me - - -

PN85

SENIOR DEPUTY PRESIDENT HAMBERGER: Do you want to show those? If we can identify those.

PN86

MR BARONI: Yes, your Honour, can I make this observation, because I think the one referred to at paragraph (a) in fact, as described there by Mr Whitnall, it films the task of a driver from Prixcar I think it is, loading a truck on the back of another truck, back of a float. It films the whole process. Whereas opposed to the first one it just simply films - it shows one of my client's employees performing the task, so it tries to put forward to the Full Bench a contrast of the different tasks which are involved.

PN87

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes I'm not saying - I don't think there's any problems in the fact that we don't play then during the hearing doesn't mean that they won't be taken into account, we won't look at them or we won't take them into account in the evidence.

PN88

MR BARONI: Excuse, me your Honour. I'm in your Honour's hands. We can make the videos available to Mr Ryan if he wants to watch them at some other time.

PN89

SENIOR DEPUTY PRESIDENT HAMBERGER: Do you want to see those ones now?

PN90

MR RYAN: Your Honour, in terms of moving forward, I'll reserve a right, if I can have a look at those two with respect to the Prixcar part one and two, they're the two I couldn't access. If I have a look at them on someone's computer or something, then - I don't think it will be an issue.

PN91

COMMISSIONER LEE: How long does Prixcar one and two go for?

PN92

MR BARONI: It goes for about an hour, Commissioner, because it shows the entire process from start to finish of loading a truck on the back of another truck.

PN93

SENIOR DEPUTY PRESIDENT HAMBERGER: You're saying that you're happy not to show those now?

PN94

MR RYAN: I'm happy not to.

PN95

SENIOR DEPUTY PRESIDENT HAMBERGER: Thanks. Mr Whitnall.

PN96

MR BARONI: Yes, I call Mr Whitnall.

PN97

THE ASSOCIATE: Please state your full name and address.

PN98

MR WHITNALL: Matthew Sam Whitnall (address supplied).

<MATTHEW SAM WHITNALL, SWORN [10.33 AM]

EXAMINATION-IN-CHIEF BY MR BARONI [10.33 AM]

PN99

MR BARONI: Mr Whitnall, could you state your full name and address for the record please?‑‑‑Matthew Sam Whitnall (address supplied).

PN100

You're the Director of Truck Moves?‑‑‑Correct.

PN101

How long have you been a Director?‑‑‑Since 2003.

PN102

Have you prepared two statements for the purposes of these proceedings, one statement which was signed by you on 24 November 2017, is that correct?‑‑‑Yes.

PN103

Do you have a copy of that statement as well?‑‑‑Yes.

PN104

That has a number of annexures to it?‑‑‑Yes.

PN105

You've prepared a further statement, a reply statement, is that correct?‑‑‑Yes.

PN106

That was dated 19 January 2018, is that correct?‑‑‑Yes.

PN107

You have that with you?‑‑‑Yes I do.

*** MATTHEW SAM WHITNALL XN MR BARONI

PN108

Do you swear that the contents of those statements are true and correct to the best of your knowledge?‑‑‑Yes, I do.

PN109

I tender those, your Honour.

PN110

SENIOR DEPUTY PRESIDENT HAMBERGER: Mr Whitnall's witness statement dated 24 November 2017 is TM4.

EXHIBIT #TM4 FURTHER STATEMENT OF MATTHEW SAM WHITNALL DATED 24/11/2017

PN111

His reply statement dated 19 January 2018 is TM5.

EXHIBIT #TM5 REPLY STATEMENT OF MATTHEW SAM WHITNALL DATED 19/01/2018

CROSS-EXAMINATION BY MR GIBIAN [10.35 AM]

PN112

MR GIBIAN: Mr Whitnall, just so we're clear you understand the stage that these proceedings have reached is that the Full Bench has found that the apparent exclusion of your business from modern award coverage is anomalous and it should be covered by the Road Transport and Distribution Award. You understand that?‑‑‑Yes.

PN113

Your business accepts that?‑‑‑Yes.

PN114

But you have set out changes that you would ask the Full Bench to make to the award in the way that it applies to your business, correct?‑‑‑Correct.

PN115

Those are set out in the draft determination which you've annexed to your further statement TM4?‑‑‑Yes.

PN116

Can you just go to that? I think it's marked MW14 in your version, the only annexure to your further statement of 24 November?‑‑‑Sorry, can you ask me again?

PN117

Do you have the draft determination that your company has prepared? It's the only annexure to your further statement of 24 November 2017 which was just marked as TM4. That statement runs to 12 pages. You'll see on the first page of the statement at paragraph 5, you say "I make this further statement in support of the draft determination, a copy of which is annexed". Do you have that?‑‑‑Yes, I have that.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN118

I just want to ask you to confirm that we correctly understand the central or significant parts of what you are asking this Full Bench to do. On the second page of the determination, there's a head towards the top of that page Classification Minimum Wage Rate, do you see that?‑‑‑Yes.

PN119

At point 3, you're asking for a provision that in lieu of the rates in clause 15.1 and 15.2, a different rate apply, correct?‑‑‑Yes.

PN120

That is you're asking that your business be exempt from all of the rates of pay that are currently in the Road Transport and Distribution Award, correct?‑‑‑As set out, yes.

PN121

You would have one rate only for all your employees, regardless of the work that they perform - I should say all your driver?‑‑‑Correct, drivers.

PN122

That that would be an hourly rate of $18.83 as a base rate at least, which is less than any rate which is currently provided in the Road Transport and Distribution Award, correct?‑‑‑Yes.

PN123

But any class of employee, that's your understanding?‑‑‑Yes.

PN124

You then at point 5, apparently for the avoidance of doubt, sorry, perhaps just going back a step. I think you said on the previous occasion you gave evidence that all of your drivers at least are casual employee, or purportedly engaged as casual employees, is that right?‑‑‑Correct.

PN125

The present rates you pay at least incorporate a casual loading of 25 per cent for all hours for those casual employees. Is that right?‑‑‑Yes.

PN126

In paragraph 5 on the second page of the draft determination, you've sought provision that the casual loading not be paid with respect to weekend and public holiday work or ordinary hours on weekends and public holidays. Am I right about that?‑‑‑Yes, correct.

PN127

And exempted from clause 19 of the award, which provides that employees would be paid the rate applicable to the highest class of work that they perform on any particular day, correct?‑‑‑Yes, correct.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN128

It's perhaps a little redundant, is it not, considering you're only paying them $18.83 for any work for currently driving any type of vehicle, correct. Do you agree with that?‑‑‑Sorry, I don't understand that.

PN129

Well, there's no higher rates, are there? If your application is granted, there would only be one rate for any driver, correct?‑‑‑Correct.

PN130

Then under the heading Long Distance Operations, you seek to insert for the first time, a cent per kilometre rate into the Road Transport and Distribution Award. Do you see that?‑‑‑Yes.

PN131

The rate that you're operating upon there, is calculated by reference to the same hourly rate of $18.83, correct?‑‑‑Correct.

PN132

That is, it's lower than any rate currently provided for long distance work in the Long Distance Operations Award. Is that your understanding?‑‑‑Yes, correct.

PN133

There would be no casual loading paid to those employees under your proposal?‑‑‑Correct.

PN134

Even if they're casual engaged as casual employees?‑‑‑Correct.

PN135

Under the heading Ordinary Hours of Work, you are seeking a change to the ordinary hours to allow above eight hours of ordinary hours of work on any particular day, being either 10 or 12, correct?‑‑‑Yes.

PN136

What weekly arrangement would you propose with respect to ordinary hours of work? Is there any maximum ordinary hours in a week in your proposal?‑‑‑No.

PN137

So, no maximum at all? It could be 10 hours a day for a local driver, seven days a week?‑‑‑No, I'm not making a proposal.

PN138

What's your understanding of how the award would operate if your proposal is granted with respect to ordinary hours? Would there be any maximum number of ordinary hours in a week?‑‑‑We would look at the safest work practices and do what's proposed there.

PN139

I'm asking you about the award provision. Are you aware that the current award provides for ordinary hours to be worked on a basis of 38 hours a week?‑‑‑Yes.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN140

What is your proposal in relation to ordinary hours on a weekly basis? Is there any limit other than the daily limit?‑‑‑It would be a similar amount.

PN141

Do you know what you propose? Do you propose that it be simply 10 hours a day on any day of the week, or is there a weekly maximum, or don't you know?‑‑‑I don't know.

PN142

Point 10 at the top of the following page - I'm sorry, just going back. In respect of the ordinary hours, the effect of the provision that you ask for is that overtime would not be payable until a longer number of hours are worked on a particular day, correct?‑‑‑Could you ask that question again, sorry?

PN143

Is your understanding that the present provisions of the Road Transport and Distribution Award are that a maximum of eight ordinary hours would be worked on any particular day?‑‑‑Yes.

PN144

That overtime would be payable where a person works in excess of the eight ordinary hours?‑‑‑Under the Transport Award, yes.

PN145

Under the Award that the Full Bench has decided would apply to your employment, your business, correct?‑‑‑I don't think they've reached a decision, but yes.

PN146

You understand they've reached a decision that the Award will apply to your business, correct?‑‑‑Correct.

PN147

We're now discussing whether there should be any variation made to the rate applies, correct?‑‑‑Correct.

PN148

You understand that the Road Transport and Distribution Award provides for overtime in excess of eight hours of work?‑‑‑Yes.

PN149

Where someone works over eight hours and you wish to avoid that, any liability for overtime on a particular day until at least someone has worked 10 or 12 hours. Is that right?‑‑‑Yes.

PN150

At point 10 at the top of the next page, you seek to exempt the business from clause 25, which provides a requirement to set starting and finishing times, is that right?‑‑‑Yes.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN151

Why is that done?‑‑‑Because the nature of the work is ad hoc. It's too hard to plan.

PN152

You then at point 11 provide for transitional arrangements which would go out to 2022, is that right?‑‑‑Yes.

PN153

Can I go back to the wage rates then. The present arrangement that your business operates as I understand it, is that at present you pay an hourly rate and you deal with this if you need to look at it, in the same statement at paragraph 27 on page 8?‑‑‑Yes.

PN154

The present arrangement is that you pay the drivers you say $22.90 per hour?‑‑‑Yes.

PN155

That's in the final sentence of paragraph 27, do you see that?‑‑‑I do.

PN156

That's calculated at $18.29 plus the 25 per cent loading?‑‑‑Yes.

PN157

We're correct in understanding that that is the Federal minimum wage plus the compulsory casual loading?‑‑‑Yes.

PN158

I was going not a cent more, but I think you said you've rounded it up, I think it's $22.86, you've rounded it up to $22.90. Is that the situation?‑‑‑Yes.

PN159

Leaving that four cents aside, I think you agreed previously that that is literally the lowest rate of pay that an adult employee in Australia can be paid for any work?‑‑‑Yes.

PN160

On a casual basis at least, correct?‑‑‑Correct.

PN161

In respect of work involving longer trips, can I just take you to your second further statement entitled Reply Statement of Matthew Whitnall, statement of 19 January 2018?‑‑‑Yes.

PN162

Let's go to page 5, paragraph 14. You see at the top there, you say that Truck Moves cannot pay a per kilometre rate, do you see that?‑‑‑Yes.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN163

But what Truck Moves does at the moment at least, is to pay a lump sum trip rate for longer trips, is that right?‑‑‑Yes.

PN164

That is not an hourly rate, just a lump sum for the trip, correct?‑‑‑Correct.

PN165

I think you've said previously that that was - you calculated the lump sum by an estimate of what you think the driving time will be?‑‑‑And also a travel time.

PN166

That is travel time returning, if they have to return by air, is that right?‑‑‑Most of the deliveries are one way, so yes, it's common.

PN167

I think with respect to Melbourne/Sydney for example, it's been assumed 10 hours of driving for that time, so they're paid 10 hours times $22.90. Is that right, correct?‑‑‑Yes.

PN168

Three hours is estimated for the time flying back. Is that right?‑‑‑Yes.

PN169

That's the amount they're paid whether it actually takes 10 hours or not to do the trip?‑‑‑No.

PN170

All right, I think on the previous occasion when you gave evidence you indicated that there may be some discretionary payment if there's an excessive delay. Is that what you're referring to?‑‑‑Yes.

PN171

Other than that situation, what you pay is a lump sum, correct?‑‑‑You just used the term excessive delay. If the driver has to - if it takes an hour longer, we'll pay them an extra hour. We don't wait for it to be a four hour delay and then - we pay whatever - what they claim is what we pay.

PN172

I'll come back to what you told the Commission last time. You're aware that the classifications under the Road Transport and Distribution Award with respect to drivers differentiate between the grades of transport workers on the basis of the type of vehicle the driver is driving?‑‑‑Yes.

PN173

You're aware that's a long-standing approach in transport awards?‑‑‑In the transport industry and freight industry, yes.

PN174

That is, you're aware that is a long-standing arrangement?‑‑‑I am.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN175

Part of those arrangements is that there's a clause that's now clause 19 that provides where an employee performs work in more grades on a particular day, they get the higher wage for the highest rate, correct?‑‑‑Yes.

PN176

You understand that driving different types of vehicles requires in many instances different licence requirements, that is you need a different type of licence, correct?‑‑‑Yes.

PN177

And a different set of skills and experience in order to be able to safely operate on public roads vehicles of a particular type, correct?‑‑‑Correct.

PN178

When your drivers drive a vehicle of a particular size or type, they require the type of licence that is necessary to drive that vehicle on a public road, correct?‑‑‑Correct. Your company, in all its promotional materials that I took you to on the previous occasion, emphasized that it had experienced drivers and professional drivers who could safely operate the different types of vehicles that your company moves, correct?‑‑‑Correct.

PN179

You would not direct an employee of yours to drive a particular vehicle unless you were satisfied that they have the skills, experience and qualifications necessary to safely operate that vehicle on public roads?‑‑‑Yes, correct.

PN180

That's a different set of skills, qualifications and experience if it's a 50 tonne mobile crane, compared to a small van, correct?‑‑‑Correct.

PN181

But your proposal is that whether the person is driving a 50 tonne mobile crane or a van, your employees would get the same $18.83 per hour, correct?‑‑‑We wouldn't drive a 50 tonne crane.

PN182

I think you've said in your statement that your company moves vehicles that fall within those mentioned in grades two, to at least eight on the transport worker grade scale. Is that correct?‑‑‑Correct.

PN183

If it's a vehicle that's falling within grade eight or a vehicle falling within grade two, on your proposal, the person would be paid $18.83 irrespective, correct?‑‑‑Correct.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN184

You wouldn't - grade eight is a mobile crane with a lifting capacity in excess of 25 tonnes and up to 50 tonnes. The driver of a rigid vehicle and trailer or double articulated vehicle exceeding 53.4 tonnes or a driver of a multi-axle platform trailing equipment with a carrying capacity of up to and including 70 tonnes. Are you aware of that?‑‑‑Sounds correct.

PN185

You'll agree that firstly a different licence arrangement would apply for such a driver, compared to one who was driving a van, for example?‑‑‑Yes.

PN186

Under 4.5 tonnes?‑‑‑Correct.

PN187

Different skills, experience would be necessary in order to ensure that that person could safety drive that vehicle on public roads, correct?‑‑‑Correct.

PN188

In terms of the rate that you actually propose - sorry, I'll withdraw that. Just further in terms of the allocation of work, where Truck Moves receives an order, it requires the customer to indicate the make, type and registration of the vehicle to be moved?‑‑‑No.

PN189

I'm sorry?‑‑‑Not the make. We don't require the make of the vehicle.

PN190

Well, I'll have to ascertain the website?‑‑‑Just ask your question again - just save time. Could you just ask the question again?

PN191

If you go to your website and put quote - get a quote or place an order and these documents were before the Commission on the previous occasion. It directs the customer to put the make, model and registration number of the vehicle. Do you agree with that or not agree with that?‑‑‑Yes, we've got that as a sales tool, but it's not as a mandatory part of our operation.

PN192

I'll ask the question again. When you go to your website, there's a facility on your website, is there not, to obtain a quote or to place an order. Is that right?‑‑‑Correct.

PN193

When one goes and does that, the information that is required to be put in, includes the make, in order to place an order or obtain a quote, includes to put the make, model and registration number of the vehicle, correct?‑‑‑Yes, it does.

PN194

I think you've indicated in your statement that you - or a number of your statements that you claim to be able to operate safely, correct?‑‑‑Yes.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN195

And that includes, as I think you've already agreed today, that you would ensure that the driver who you allocate to drive a particular vehicle has the licence and the skills and qualifications to safety operate that vehicle, correct?‑‑‑Correct.

PN196

I take it firstly, you have to obtain sufficient information about the vehicle in order to ascertain what licence is required and what licence the driver will have to have, who you send out to transport the vehicle, correct?‑‑‑Correct.

PN197

Well otherwise, you'll send a driver who doesn't have the correct licence and they won't lawfully be able to drive the vehicle, correct?‑‑‑If that happens, then we'd have to find another driver, but if the customer hasn't provided us enough information.

PN198

Are you telling us that you do not check before you allocate a driver to go and do a job, whether that driver has the correct licence in order to lawfully drive the vehicle that you are directing them to drive?‑‑‑No.

PN199

You're not saying that?‑‑‑No.

PN200

So, you do ascertain sufficient information in order to ensure that the licence that the person holds, who you're directing to undertake the work, is sufficient to enable them to lawfully drive the vehicle, correct?‑‑‑Correct.

PN201

You'd be aware that there's different classes of vehicle which depend on part upon the configuration and the gross vehicle mass of the type of vehicle being driven, correct?‑‑‑That's correct, yes.

PN202

You obtain the information necessary to ensure that that person who you are directing to perform the work has the correct class of licence determined on that basis, correct?‑‑‑Generally what we do is we have drivers who have a licence that can cope with the predominant number of - predominant size of vehicles or whatever that we're moving. We don't identify the vehicle and then match it up with a driver with that licence as you're sort of proposing. We have a driver that's capable of driving a van or a rigid vehicle, but again. They're not loaded it's a much reduced need to find out about the vehicle. It's more about stock control, stock management for the customer, because they're in the trade, so they need to keep track of the chassis is moving, not where theoretical freight might be. I hope that helps.

PN203

Your driver would still have to have the correct licence to lawfully driver a truck on the road, correct?‑‑‑I think I've answered that question.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN204

What you said in your subsequent answer is that you employ people who have the skills and qualifications and the licenses in order to drive the range of vehicles that you may - generally speaking at least, that you are likely to be transporting, correct?‑‑‑Correct.

PN205

You've agreed earlier that you would not direct someone to drive a vehicle unless you were satisfied that they could operate that vehicle safely and professionally, correct?‑‑‑Correct.

PN206

What systems do you have in place to ensure that happens in each particular task?‑‑‑We have a screening process with employment induction and training.

PN207

But when a particular order comes in, what steps do you take to ensure that the person who you allocate to do that task is able to professionally and safely operate the vehicle involved?‑‑‑We have a pool of drivers who have all been screened to our standard and I don't know else what - - -

PN208

You don't have any other system other than having a general pool of drivers who you think are generally competent drivers. Is that right?‑‑‑That have met our standards for training and have a safe track record and that sort of thing.

PN209

It's probably unnecessary, but I might just - because I think the witness agreed and I think the Victorian ones were attached to Mr Ryan's material, but I was just going to tender material from the Roads and Maritime Services in New South Wales in relation to the different classes of vehicle licences. I don't think I have to ask Mr Whitnall about them, given he understood in a general sense, the differentiation.

PN210

SENIOR DEPUTY PRESIDENT HAMBERGER: You want to tender this?

PN211

MR GIBIAN: Yes.

PN212

SENIOR DEPUTY PRESIDENT HAMBERGER: The Roads and Maritime Heavy Vehicle Driver Handbook is TWU15.

EXHIBIT #TWU15 THE ROADS AND MARITIME HEAVY VEHICLE DRIVER HANDBOOK

PN213

MR GIBIAN: Can I just provide you, Mr Whitnall - do you have a copy of Road Transport Award with you?‑‑‑No.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN214

Can I provide you with a copy of that? Do the members of the Bench have a copy of the Award? We do have a number of copies if required.

PN215

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, I've got one but - yes.

PN216

MR GIBIAN: Just before I come to the award, your company's proposal is that all of your driver would receive an hourly rate of $18.83 plus at least during the week, a casual loading if they're engaged on a casual basis, correct?‑‑‑Correct.

PN217

How did you go about working out the $18.83, where does it come from?‑‑‑It came from somewhere between what we currently pay and - more than what we currently pay and something that's moving towards what we anticipate we will have to.

PN218

It's more than you currently pay. I think you're currently paying $18.29, plus a loading, so that's 60 cents more or something - a bit less than that, correct?‑‑‑Correct.

PN219

You say it was moving in the direction of what you think you'll have to pay in the sense that you think you'll have to pay more than $18.83, is that right?‑‑‑I don't know.

PN220

Well, I'm just asking you about what you just said. You said in answer to my earlier question as to how you came to the figure of $18.83, and you said it was more than you currently paid and moving towards what you think you'll have to pay. Do you think you'll have to pay more than $18.83 is that what we understand?‑‑‑I don't know.

PN221

What did you mean when you said that it was moving towards what you think you'll have to pay?‑‑‑$18.83.

PN222

I'll ask the question again. When I ask you how you came up with the amount of $18.83, you said it was between what you currently paid and what you think you're going to have to pay, that is, what did you mean when you said it was between - $18.83 was between what you currently pay and what you think you're likely to have to pay?‑‑‑I don't know.

PN223

You don't know. You'd like to withdraw that answer, is that right?‑‑‑I would.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN224

I'll ask you the question again, how did you come up with $18.83?

PN225

MR BARONI: I object to the question because he's answered it. He's answered it three times.

PN226

MR GIBIAN: Well, he withdrew his answer.

PN227

SENIOR DEPUTY PRESIDENT HAMBERGER: He changed his answer.

PN228

MR BARONI: I understood he withdrew his answer to the second part of the question.

PN229

SENIOR DEPUTY PRESIDENT HAMBERGER: I think he hasn't answered the question.

PN230

MR GIBIAN: He clearly hasn't answered the question. If you withdraw the earlier answer that you gave to the question that I asked, how did you come up with $18.83?‑‑‑I made it up.

PN231

You made it up. And you made it up because - is it correct to say you made it up at that level, because you thought you'd have to pay a little bit more than $18.29 cents, but you wanted to pay as little as possible, is that where we - - -?‑‑‑That would be accurate, yes.

PN232

Can you come to the Road Transport Distribution Award?‑‑‑Yes.

PN233

The rates of pay or the present rates of pay appearing in clause 15.2, minimum ordinary hour rates on page 22 I think of the award, if it's the same version I've got?‑‑‑Page 22.

PN234

At the top of that page there's the heading 15.2 Minimum Wage Rates, do you see that?‑‑‑Yes.

PN235

Are you familiar with this award generally speaking, or not?‑‑‑I'm not.

PN236

I mean, have you looked at the rates? When you came up with $18.83, did you look at the rates in this award?‑‑‑Not really.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN237

The situation is the Full Bench have found that you should be covered by the Road Transport and Distributions Award and you've determined a rate that you would like the Full Bench to set for your employees without any reference to the Road Transport and Distributions Award, is that the situation?‑‑‑That would be a bit - we're obviously aware of it, we're in the process, we talk about it, but the detail, I'm not entirely as familiar with as people - - -

PN238

The question I asked you was, when you came up with the $18.83, did you look at these rates in the Road Transport and Distributions Award, or not?‑‑‑I can't remember looking at them.

PN239

You'll see the rates as one might expect, vary depending upon the grade of worker involved, correct?‑‑‑Yes.

PN240

You would understand that, consistent with long-standing industrial practice, that is to recognise that employees should be rewarded with a higher rate of pay for exercising the skills and responsibilities involved with the work described in the various transport worker grades, correct?‑‑‑In the Road Transport and Distributions Award, yes I can see that.

PN241

It's a common arrangement in awards generally speaking, isn't it, that there'd be different grades that are classified - or you don't know?‑‑‑No.

PN242

You don't know?‑‑‑No.

PN243

In any event, you'll see that the lowest hourly rate for a grade one employee is transport worker grade one, is $19.37. Do you see that?‑‑‑Yes.

PN244

You're proposing a rate for all of your employees at less than the lowest grade. Is that right?‑‑‑Yes.

PN245

Do you know what a grade one worker - transport worker roles are?‑‑‑No, but I'm sure you're about to tell me.

PN246

But you don't know, is that right?‑‑‑No, not off the top of my head. I'd have to look at it.

PN247

Can you recall having ever looked at it before?‑‑‑No.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN248

Well the transport worker grades are in schedule C, which commences on page 55, you see that?‑‑‑Yes, I have page 55.

PN249

You'll see it's headed Classification Structure of Rates of Pay, you see that?‑‑‑Yes.

PN250

You'll see there's on the left hand side, down the page, transport worker grades?‑‑‑Yes.

PN251

You see that? Next to each grade number, there's a description of the classifications that fall within that grade, do you see that?‑‑‑Yes.

PN252

You'll see for grade one, that involves general hands, greasers and cleaners, yards person, vehicle washer and detailer, motor driver's assistant, furniture removal assistant. Do you see that?‑‑‑Yes.

PN253

Loader, other than a freight forwarder, do you see that?‑‑‑I do.

PN254

And a foot or bicycle courier?‑‑‑Yes.

PN255

Your proposal to the Full Bench, if we're correct in understanding is that a driver you engage to drive vehicles on public roads would, irrespective of the type of vehicle you direct them to drive, the type of licence they're required to have to do so, be paid less than a vehicle washer or a foot or bicycle courier. Is that right?‑‑‑Correct.

PN256

I think in the material that Mr Bradac put on and maybe you know this and maybe you don't, he uses grade four as referring to the most likely type of vehicle that your drivers would move, a driver of a three axle rigid vehicle exceeding 13.9 tonnes, gross vehicle mass. Are you able to say whether that's correct or not?‑‑‑Sorry, could you ask the question again?

PN257

I'll withdraw that question and ask another one. Are we correct in understanding - sorry, I'll go back a step. Grade one doesn't refer to any type of driver, correct, driver of a motor vehicle?‑‑‑Correct. I don't know what a motor driver's assistant does and a courier and foot bicycle.

PN258

A foot courier is using a motor vehicle, are they?‑‑‑I see motor vehicle?‑‑‑No.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN259

So, the lowest rate of driver is actually grade two and in the present base rate would be at least $19.86 and that's where it's not a vehicle not exceeding 4.5 tonnes. Do you see that?‑‑‑For the road transport industry yes, I can see that.

PN260

In the award that the Full Bench has determined will apply to your business. I think you'd agreed when I earlier asked you that your evidence is that you may move vehicles that are mentioned, anywhere from grade two to grade eight, correct?‑‑‑Correct.

PN261

Can you tell me - if it's grade eight, I think I earlier asked you, it appears on page 57, I earlier asked you about the various grade eight types of vehicles referred to in grade eight? Do you recall that?‑‑‑The mobile crane, yes.

PN262

Can you tell me on what basis the company suggests to the Full Bench that a driver you instruct to drive one or other of those vehicles on a public road should be paid less than a vehicle washer or a foot courier?‑‑‑

PN263

SENIOR DEPUTY PRESIDENT HAMBERGER: Which vehicles are we talking about?

PN264

MR GIBIAN: Vehicles covered by grade eight on page 57?‑‑‑I can't remember if we've actually ever moved the things in grade eight. Your question is to tell the Bench why the pay is different?

PN265

Can you tell me on what basis you suggest that a driver who you direct to drive a mobile crane with a lifting capacity in excess of 25 tonnes and up to 50 tonnes would be paid a rate of pay which was less than a vehicle washer or a foot courier?‑‑‑As I said, I can't remember us ever moving anything remotely like that or being asked to. A customer just wouldn't ask us.

PN266

I think you said in your evidence that you move mobile cranes?‑‑‑They're certainly not something of that nature which is an extremely large piece of equipment. We would actually refuse to relocate a vehicle of that size because I wouldn't think we were capable of doing it. I wouldn't feel comfortable putting one of our drivers in a vehicle like that.

PN267

To the extent that Mr Bradac does calculations based upon the increase of pay that your business would face based upon grade eight of the Transport Award, we can exclude his evidence in that respect?‑‑‑As far as a grade eight. As I said, I'm not as familiar with all of this, because we're not in this industry, but I take your point that we are enforced.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN268

I'm asking you about moving a vehicle that fits within - you said grades two to eight. If we take grade seven, as a driver of a double articulated vehicle up to and including 53.4 tonnes, at the bottom of page 56, you see that?‑‑‑Mm-hm.

PN269

Can you tell me on what basis you suggest to this Commission that a driver of that type of vehicle, if you direct them to move that type of vehicle would be paid less than a vehicle washer or a foot courier?‑‑‑Again using very extreme examples of vehicles that we just rarely, if ever would have any contact with.

PN270

I will ask the question again. Assuming you were ‑ ‑ ‑ ?‑‑‑It's difficult to answer, is what I'm trying to ‑ ‑ ‑

PN271

But the consequence of your proposal is that if you directed a worker to move - one of your drivers to move a double articulated vehicle up to and including 53.4 tonnes GCM, you would pay them $18.83 per hour. Correct?‑‑‑I think trying to ‑ ‑ ‑

PN272

Is that correct?‑‑‑Correct.

PN273

And that is less than, under this award, a vehicle washer or a foot courier is entitled to be paid. Correct?‑‑‑If you apply this structure as you're reading it to me to the nature of our business, then it's - yes, my proposal is what I'm saying should be correct.

PN274

Your proposal is that a person you direct to drive a double articulated vehicle up to and including 53.4 tonnes would be paid less than a vehicle washer or a foot courier. Correct?‑‑‑If it was as you are saying, yes.

PN275

And on what basis do you suggest to the Full Bench that it is appropriate and fair and reasonable that a driver that you direct to drive a double articulated vehicle up to and including 53.4 tonnes be paid less than a person who doesn't drive at all and in fact is a vehicle washer or a foot courier?

PN276

MR BARONI: I object to the question. I've let this go for a while. Mr Whitnall's evidence in the earlier proceedings and arising out of the Federal Court proceedings was that the level of work which would fall into the category, if at all, that now Mr Gibian is putting to the witness - let me finish - was negligible, if at all. There's no evidence that Truck Moves even moves a vehicle that has just been put to Mr Whitnall. That's the first problem with the question.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN277

There was no evidence whatsoever that this company would move such a vehicle. So the question itself is improper because - and even to the extent that they do move those vehicles, 96 per cent of - which is the evidence before Commission already - 96 per cent of the movements they make are non-registered vehicles off the wharf. So the non-registered vehicles, which can't possibly do anything - can possibly have a configuration which is what Mr Gibian is putting to the witness.

PN278

MR GIBIAN: It applies to any grade, I think.

PN279

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. I guess the question is how plausible it is that they would actually be moving vehicles in those grades.

PN280

MR BARONI: Yes, your Honour. That is what ‑ ‑ ‑

PN281

MR GIBIAN: Their own evidence is that they move vehicles in grades 2 to 8. I mean, what am I supposed to ‑ ‑ ‑

PN282

SENIOR DEPUTY PRESIDENT HAMBERGER: Where - can you take us to that.

PN283

MR GIBIAN: I'm sorry, I will need to find it.

PN284

SENIOR DEPUTY PRESIDENT HAMBERGER: I would like you to, if you can, find it.

PN285

MR BARONI: Because I'm not sure that's the evidence. Sorry, your Honour.

PN286

SENIOR DEPUTY PRESIDENT HAMBERGER: If it is the evidence, then I think the question is fair enough. So if you could find it. Certainly I think it's certainly true in - is it Mr Bradac's submission - that he talks about the impact on the company and refers to grade 8.

PN287

MR GIBIAN: Yes, in all of the grades.

PN288

SENIOR DEPUTY PRESIDENT HAMBERGER: But leave that to one side. I hear that. But if there is evidence - is there previous evidence about what type of vehicles the company moves?

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN289

MR GIBIAN: I will need a moment.

PN290

SENIOR DEPUTY PRESIDENT HAMBERGER: That's all right, you've got a moment.

PN291

MR GIBIAN: I think I've taken it from the fact that they've done the calculations of the cost to their business on the basis of all of the grades.

PN292

MR BARONI: That is so, but that doesn't follow that there's a concession on the part of my client that they're the vehicles they drive. In fact, the evidence is the opposite.

PN293

SENIOR DEPUTY PRESIDENT HAMBERGER: That's what I'm asking: is the evidence the opposite?

PN294

MR GIBIAN: My submission is if it is, your Honour, the highest you can put that evidence - I withdraw that. The highest you can put against my client is that less than 4 per cent or thereabouts of the vehicles they move are registered vehicles. And even smaller than that would be a prime mover - an articulated vehicle.

PN295

SENIOR DEPUTY PRESIDENT HAMBERGER: Perhaps I can just ask Mr Whitnall.

PN296

So you've got the schedule C there of the award with all the different classifications, the different types of vehicles that are moved?‑‑‑Yes.

PN297

What - and tell me if you don't know the answer - in looking at the types of vehicles, what would be the highest that you would move? So you're saying you don't move vehicles that are covered by grade 8. You said that. Is that right?‑‑‑Correct.

PN298

Was your evidence that you occasionally but rarely move vehicles covered by grade 7? Take your time, and if you don't know, you don't know?‑‑‑I don't know.

PN299

You don't know. Do you know generally in relation to grade 6?‑‑‑I don't know. Again, the thing that - we don't talk to our customers in these ways and so we don't - I'm not familiar with that.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN300

If you don't know, you don't know?‑‑‑We don't talk to them about carrying capacities.

PN301

The answer isn't no, the answer is you don't know?‑‑‑Yes.

PN302

Is Mr Bradac going to know?‑‑‑He has got a much better ‑ ‑ ‑

PN303

Okay?‑‑‑Yes.

PN304

I think we might move - I don't know, Mr Gibian, I think we understand the point you're making very clearly.

PN305

MR GIBIAN: Yes, I mean ‑ ‑ ‑

PN306

SENIOR DEPUTY PRESIDENT HAMBERGER: But I just don't know whether we could move on.

PN307

MR GIBIAN: Mr Whitnall is the director of the company and he's presenting this. And I want to understand on what basis they suggest ‑ ‑ ‑

PN308

SENIOR DEPUTY PRESIDENT HAMBERGER: I think you've got there isn't a basis.

PN309

MR GIBIAN: Yes, I think that's true. All right, I will move on.

PN310

In relation to penalties, I think at present you pay your drivers no additional rate if they are working on the weekends or on public holidays?‑‑‑Correct.

PN311

And there's no compensation that they receive for social and family disruption caused by working at those times?‑‑‑Correct.

PN312

But you do pay then casual loading at present, at least, on the federal minimum wage for all work, all hours - leaving the lump sum to one side, but based on the hourly basis you calculated. Correct?‑‑‑Correct.

PN313

You have proposed as part of your proposal that the casual loading would be now removed from weekend work. Is that right?‑‑‑Correct.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN314

If you could just go to the second further statement, the reply statement of 19 January - I'm sorry, I take that back. Sorry, if I could just have a moment.

PN315

DEPUTY PRESIDENT SAMS: While you're looking at that, Mr Gibian.

PN316

I'm looking at your analysis of vehicles in paragraph 14 of your first statement. Do I read that schedule as meaning there are no local moves on the weekend?‑‑‑It would be negligible.

PN317

MR GIBIAN: I'm sorry, it was that statement a wish to take you to, the statement of 24 November, TM4. Do you have that one?‑‑‑The further statement or the reply?

PN318

The further statement?‑‑‑Yes, I have that here.

PN319

You will see you deal with this issue from, I think, paragraph 35 on page 9. Do you see that? Do you see paragraph 35 on page 9?‑‑‑I do.

PN320

You will see at paragraph 36 you say that the drivers are casual employees. Correct?‑‑‑Correct.

PN321

That and by that I mean that you don't - you mean that you don't guarantee them any work at all?‑‑‑Correct.

PN322

That is, you could offer them work or not offer them work as you so choose?‑‑‑Yes.

PN323

But you say that they could choose not to work on the weekends; that is, they could refuse jobs on the weekend if they wished?‑‑‑Yes.

PN324

But if they did so, they wouldn't earn the money and wouldn't be guaranteed any further work going forward?‑‑‑Correct.

PN325

In any event, you then say that - over the page at paragraph 40 at the top of page 10 - that as a result of what you say the costs would be:

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN326

We would ask for a moderation in the application for casual loading for weekend work in the metropolitan area.

PN327

Do you see that?‑‑‑Yes.

PN328

Why in the metropolitan area?‑‑‑If we were to do that work, it's very cost sensitive.

PN329

DEPUTY PRESIDENT SAMS: Is metropolitan work the local work?‑‑‑Yes.

PN330

You just said it's negligible?‑‑‑Yes, it is.

PN331

MR GIBIAN: So you seek a change to the award based upon the cost to your business for work that it's negligible. Is that right?‑‑‑Yes.

PN332

In respect of your proposal for longer distance work, you wouldn't be paying any casual loading at all for any work that casual employees do. Is that right?‑‑‑Sorry, can you ask the question ‑ ‑ ‑

PN333

I think you agree with me earlier that for the long-distance proposal that you make, there would be no casual loading paid at all for casual employees. Correct?‑‑‑Yes.

PN334

You also seek a change with respect to ordinary hours of work, as I took you to. Do you have a copy with you of your earlier statement in these proceedings of March?‑‑‑I believe I do.

PN335

Do you?‑‑‑I don't have it dated, so it's - - -

PN336

It was a statement of - to the members of the Bench have that available? I think we could make eight couple of copies of the text of it, at least, in case it wasn't available.

PN337

Do you have a copy or not?‑‑‑Could refer me to at paragraph or something, and I will just confirm it. I believe I do.

PN338

It is headed Statement of Matthew Whitnall, it was dated 1 March 2017. Do you have a copy of that?‑‑‑I will assume this is it, yes.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN339

Well, is it it?‑‑‑It's not dated, so, the copy I have ‑ ‑ ‑

PN340

It has a date on page 27.

PN341

SENIOR DEPUTY PRESIDENT HAMBERGER: This is the one that had 129 paragraphs?‑‑‑1 March, yes.

PN342

MR GIBIAN: Can you just go to page 11. There's a heading halfway down that page, "Typical working day for a driver." See that?‑‑‑Yes.

PN343

You then make some observations about the typical working day of a driver. Correct?‑‑‑Yes.

PN344

I would be correct in assuming you were endeavouring to describe the common arrangements for working hours of workers or working duties of drivers that you employed in your business. Correct?‑‑‑Yes.

PN345

This was March last year. Has the nature of your business or the work that your employees perform changed in any substantial way since then?‑‑‑Not substantially, no.

PN346

Can you go over to paragraph 68 on page 13?‑‑‑Yes.

PN347

You will see there you refer to driving at night. See that?‑‑‑I do.

PN348

And the methods of accommodation and the like. You will see in the third last line of paragraph 68 you say, "Standard hours at Truck Moves are usually eight hours a day." Do you see that?‑‑‑Mm‑hm.

PN349

That's still the case, isn't it?‑‑‑Standard hours, yes.

PN350

Can you go back to your further statement again. When you said standard hours, what you mean by standard hours?‑‑‑We would expect the drivers to work somewhere in the vicinity of eight hours each day, or, you know, if we get them to come in, there's enough work.

PN351

Can you go back to TM4, then, the statement of 24 November last year?‑‑‑Yes.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN352

You deal with ordinary hours on page 10 from paragraph 41?‑‑‑Yes.

PN353

You will see there that you indicate in paragraph 41 that you understand that clause 22.2 of the Road Transport and Distribution Award ordinary hours are Monday to Friday. And in the second sentence you say, "Must not exceed eight hours a day." Do you see that?‑‑‑I do.

PN354

So you read the award sufficiently to ascertain that, did you?‑‑‑I did.

PN355

And then you say in paragraph 42 that Truck Moves drivers will ordinarily work for local moves Monday to Friday between 7 am and 5 pm; and for interstate moves Monday to Friday 6 am to 6 pm; and on the weekends as well, 6 am to 6 pm. Do you see that?‑‑‑I do.

PN356

That's inconsistent with what you said in the earlier evidence you gave to this Commission, namely that the standard hours were eight hours a day. Correct?

PN357

MR BARONI: I object to the question. If he's going to be putting these sorts of questions he should also take him to his statement at paragraph 44 of that same statement and get him to answer the question.

PN358

MR GIBIAN: I will withdraw that question and ask another one.

PN359

The basis upon which you've suggested that the ordinary hours arrangements under the Road Transport and Distribution Award should be changed for your business to be 10 hours or 12 hours is on the basis of this evidence you give as to the ordinary work of drivers in this part of your statement. Correct?‑‑‑Correct.

PN360

And what you've said there is that drivers would ordinarily work in a local moves case from 9 am - sorry, I take that back. Drivers would ordinarily work from 7 am to 5 pm. Correct?‑‑‑Correct.

PN361

And that's inconsistent with what you earlier said in evidence to this Commission, that is that the standard hours would be eight hours. Correct?‑‑‑I used the term "usually eight hours".

PN362

Yes. Now you say they would ordinarily work 10 hours.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN363

SENIOR DEPUTY PRESIDENT HAMBERGER: Is it correct "up to 10 hours" is what it says.

PN364

So are you saying that normally they work eight hours, but they might work up to 10?‑‑‑Correct.

PN365

Is that your evidence?‑‑‑Yes.

PN366

MR GIBIAN: In any event, in paragraph 48 in the same statement you've said, "If the eight hours" - to the extent that that ordinary arrangement is departed from and workers currently work up to 10 hours for local work, you say that you would simply not give that work if there was a requirement to pay overtime above eight hours. Correct? You would just stop at eight hours?‑‑‑Correct.

PN367

In relation to the transitional arrangements that you've suggested - and again I don't want to traverse too much on what I asked you on the previous occasion - but you agree with me that there has been disputation about the application of the Road Transport Award to your business and similar businesses since at least 2013, 2014?‑‑‑Yes.

PN368

And that the position - and I think you agreed with this when I asked you on the previous occasion, and I will try and do it in a summary way if I can - is that at least - the position in 2014 was that the Fair Work Ombudsman advised you that the Road Transport and Distribution Award applied to your employment, and the Federal Circuit Court had decided that a business similar to yours was covered by the Road Transport and Distribution Award. Correct?‑‑‑Is this referring to the case in Melbourne or wherever it was?

PN369

Yes. There was a Federal Circuit Court decision of Booth which found that a business similar to yours was covered by the Road Transport and Distribution Award. You've previously said in evidence that that was what prompted you to commence the Federal Court proceedings?‑‑‑Yes.

PN370

Do you recall that now?‑‑‑I do.

PN371

And the Fair Work Ombudsman had also raised the issue in the context of the award review processes. Correct?‑‑‑I believe so, yes.

PN372

Ultimately you pursued the Federal Court proceedings, the first instance decision of which was in around October of 2015. Do you recall that?‑‑‑I do.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN373

And you're aware that within two weeks of that occurring the Transport Workers Union had raised in the context of the award review process and extension of the application of the Road Transport and Distribution Award to ensure that it covered businesses like yours. Correct?‑‑‑I do.

PN374

And you've been aware since at least that time that there was the potential for this Commission to decide that your business would be covered by that award?‑‑‑I sought advice and that was the advice, yes.

PN375

Sorry, I will ask the question again. You were aware, at least from late 2015, that there was a matter before this Commission which was seeking to have your business covered by the Road Transport and Distribution Award. Correct?‑‑‑I can't remember, but I sought advice and the advice was that there was something happening.

PN376

I will refer to the transcript when you were asked about this on a previous occasion if that's necessary?‑‑‑I had some awareness, yes, if that makes it simpler.

PN377

And you've known at least since July of last year that the Full Bench had found that you would be covered by the Road Transport and Distribution Award?‑‑‑Yes, correct.

PN378

Can I go back to your first statement - the further statement, I should make clear, TM4. At the bottom of the first page, from paragraph 6, you've referred to a number of videos. Do you see that?‑‑‑I do.

PN379

I think the Full Bench is content to watch them in their own time. The video at paragraph 7 is a video that - am I correct to say that you arranged to be taken of one incident of a driver attending a location to collect a vehicle?‑‑‑Correct.

PN380

And then those that are referred to in paragraph 8 are twofold. Firstly in 8.1 there's a video of a truck being loaded onto a vehicle-carrying float. Correct?‑‑‑Yes. A PrixCar vehicle, yes.

PN381

And in 8.2 there are some videos which I think are American in origin in relation to loading pallets on flatbed trucks. Is that right?‑‑‑I think that might be British, but yes, correct.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN382

At paragraph 10 you've purported to summarise things that you say you saw in the video. Is that right?‑‑‑Yes.

PN383

And those of videos that were referred to in 8.2. Is that right?‑‑‑No, they're relating - 8.1 and 8.2.

PN384

You say at the start of paragraph 10, "As can be seen from those videos ‑ ‑ ‑ "?‑‑‑I referred to those videos ‑ ‑ ‑

PN385

"- - -an array considerations." Do you see that?‑‑‑Yes.

PN386

Are you referring to the PrixCar video or just those that are referring at 8.2?‑‑‑The PrixCar video.

PN387

Which one, both or one?‑‑‑They're interrelated. The PrixCar video covers these considerations.

PN388

I will go back. The video at 8.1 is a video - how did you obtained the video from PrixCar?‑‑‑Just by chance. A vehicle was being floated from the yard where we operate and it was in full view of our security system, which is recording 24 hours a day, seven days a week. Quite frankly it couldn't have been in a better position for the cameras. It just parked up and then the driver proceeded to load a vehicle.

PN389

So you had CCTV cameras which happened to capture a PrixCar vehicle being loaded at a depot. Is that right?‑‑‑At our depot, yes.

PN390

Did you inform PrixCar that you were going to use this video in proceedings in this Commission?‑‑‑No.

PN391

Did you seek any consent from PrixCar to be videoing them?

PN392

MR BARONI: I object to the question. It assumes that he requires consent.

PN393

MR GIBIAN: It doesn't assume anything, I'm just asking?‑‑‑The driver, when he - - -

PN394

MR BARONI: I object.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN395

SENIOR DEPUTY PRESIDENT HAMBERGER: I think you can ask the question. I'm not sure how important it is. Mr Gibian, is this going - I mean, do we care? Do we care whether he got consent? The cameras are there any way, presumably?‑‑‑I was going to say there's notification when they enter the site that there are security cameras running. So he ‑ ‑ ‑

PN396

MR GIBIAN: You also refer to footage obtained by an iPhone?‑‑‑Correct.

PN397

How was that obtained?‑‑‑With an iPhone.

PN398

But who took it? This was during the same incident. Someone got out their iPhone and started videoing. Is that right?‑‑‑I can't remember.

PN399

You can't remember. All right. In any event, the video shows a truck being loaded on a vehicle-carrying vehicle. Correct?‑‑‑As well as a lot of other things, yes.

PN400

And the 8.2, as you've indicated, relate to pallets being loaded on flatbed trucks. Is that right?‑‑‑All manner of vehicles within the road freight industry.

PN401

You don't place what you've said in paragraph 10 as higher than reporting what you say you saw in one or other of those videos. Is that right? That's what you're saying in paragraph 10?‑‑‑When you say place higher, what do you mean?

PN402

All you're saying in paragraph 10 is that you saw some of those things in the videos. Correct?‑‑‑A large amount of those things, yes.

PN403

If you refer to, for example, paragraph 10.2, referring to ensuring equipment being used to load and unload freight is suitable, do you see that?‑‑‑Yes.

PN404

Configuring the load, et cetera?‑‑‑Yes.

PN405

Do you see that?‑‑‑I do.

PN406

You're aware that all drivers involved in the transport industry covered by the Road Transport and Distribution Award are not necessarily involved in loading and unloading at all. Correct?‑‑‑Correct, if they are, as you pointed out, a grade 1 or lower, yes.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN407

A driver of a vehicle that is transporting goods is not necessarily personally involved in loading or unloading at all. Correct? The loading and unloading may be done by others; employees a distribution centres, warehouses, depots and the like. Correct?‑‑‑I don't know.

PN408

You don't know, all right. They may be carrying bulk goods which have been preloaded onto the trailer. Are you aware of that?‑‑‑I don't know.

PN409

You know that drivers of mobile cranes are covered by the award, aren't you?‑‑‑No.

PN410

You're not aware of that? All right. So your understanding is that drivers who are covered by the awards do all of these things that you've listed in paragraph 10. Is that your understanding?‑‑‑That's my understanding, yes.

PN411

I did just want to ask you about the multiple vehicle issue. You say that in some instances at least your drivers may drive more than one type of vehicle in a particular day. Correct?‑‑‑When you say type of vehicle, what do you mean?

PN412

They might drive different vehicles which are different sizes in the same day?‑‑‑Yes.

PN413

Is that right?‑‑‑Yes.

PN414

I thought you said it a number of times in your evidence. I take it you're referring to local work in that respect?‑‑‑Yes.

PN415

When Truck Moves gets an order or obtains a job that's needed to be done on a particular day, you allocate the work to a particular driver. Correct?‑‑‑Yes.

PN416

You're able to direct which driver does which job. Correct?‑‑‑Yes.

PN417

Where a driver covered by the Road Transport and Distribution Award drives a different type of vehicle falling within a different transport worker grade in a particular day, that situation is dealt with by clause 19. You're aware of that?‑‑‑Clause 19?

PN418

Of the award. Can we go to page 28 of the award?‑‑‑Higher duties, is that what ‑ ‑ ‑

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN419

Yes?‑‑‑Yes.

PN420

Have you seen this provision before?‑‑‑I have read it, yes.

PN421

Isn't it one of the provisions you're seeking to be exempted from?‑‑‑Yes.

PN422

And you have seen it before?‑‑‑I have.

PN423

You're aware that it provides is where an employee is required to perform two or more grades of work on any one day, the driver is to be paid the minimum rate for the highest grade. Do you see that - for the whole day?‑‑‑Yes.

PN424

And in a circumstance where an employee covered by this award drives a vehicle within grade 4 and within grade 5, they would get the grade 5 rate for the whole day. Correct?‑‑‑Under the award, yes, that's what it says.

PN425

That's how this award deals with the circumstance of a person performing work by driving different types of vehicles on the one day. Correct?‑‑‑That's how this award does, yes.

PN426

You object to clause 19 applying to your business, and the alternative you propose is simply to have one rate of pay, $18.83, for all work, regardless of the type of vehicle involved. Correct?‑‑‑Correct.

PN427

You don't put forward any other alternative to the way in which an employee who performs work in two or more grades could be dealt with in the context of your business. Correct?‑‑‑In the context of our business, correct.

PN428

You don't make any other - suggest an alternative?‑‑‑No. Correct.

PN429

There were just a couple of additional matters in your reply statement. Again I would make clear I'm not proposing to ask Mr Whitnall everything that might be contested in his reply statement because a lot of it was dealt with - territory that was well and truly dealt with previously.

PN430

Can you just go to page 6. You will see at paragraph 22 you refer to the dangerous goods licence. Do you see that?

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN431

SENIOR DEPUTY PRESIDENT HAMBERGER: Sorry, which paragraph is that?

PN432

MR GIBIAN: Paragraph 22 on page 6.

PN433

Do you have that, Mr Whitnall?‑‑‑Yes.

PN434

I'm sorry?‑‑‑Yes.

PN435

Are you chuckling for a particular reason?‑‑‑Just that you and I have talked about this before, that's all, twice.

PN436

We have?‑‑‑But that's okay.

PN437

We have?‑‑‑We're here to continue the conversation.

PN438

Yes, well, if you said the same thing every time, then I wouldn't have to go back to it?‑‑‑Well, if you asked the same question.

PN439

At paragraph 22 you say that you prefer drivers to have - in the third paragraph - sorry, fourth line, you say you prefer drivers to have a dangerous goods licence. Correct?‑‑‑Yes.

PN440

I think when I asked you about these things previously you agreed, and there were advertisements in evidence that showed you were advertising for drivers with dangerous goods licences. Correct?‑‑‑Yes, that's correct.

PN441

You then say this time that it's not because it's a requirement, but it makes it easier in the event that they are pulled over by the police or another regulatory body. Is that right?‑‑‑Correct.

PN442

That is, you're concerned that you may have difficulties with the police or a regulatory body even though it's not a requirement to have a licence. Is that right?‑‑‑Yes.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN443

Can I just show you what you said on a previous occasion about this issue. Can I just provide - I don't know whether the members of the Bench have a transcript of the previous occasion. I can provide it, although I don't know that you need to look at it.

PN444

SENIOR DEPUTY PRESIDENT HAMBERGER: Are you going to be referring to an extensive amount of transcript?

PN445

MR GIBIAN: No, it's only going to be brief.

PN446

SENIOR DEPUTY PRESIDENT HAMBERGER: Perhaps if you just read it out.

PN447

DEPUTY PRESIDENT SAMS: Just give us the PN reference.

PN448

MR GIBIAN: Yes.

PN449

Can you just go, Mr Whitnall, it's - I'm not sure whether you have page numbers on your copy?‑‑‑I do.

PN450

You do. I've got page 27, but it's PN846?‑‑‑Mm‑hm.

PN451

I think ‑ ‑ ‑ ?‑‑‑846?

PN452

Yes. You will see there are paragraph numbers, PN numbers?‑‑‑Yes.

PN453

Do you see that?‑‑‑I think I've identified it, yes.

PN454

You will see at 842 the learned presiding member of the Full Bench asked some questions about this, and then at 846 and 847 you say:

PN455

But there's a minute amount of gas or vapour left in the vehicle, it's deemed to be considered still a dangerous good.

PN456

Do you see that?‑‑‑Yes.

PN457

And you're then asked:

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN458

So you need to have a goods licence?‑‑‑Yes.

PN459

Do you see that?‑‑‑Yes.

PN460

Do we understand the evidence you gave on that occasion that it was a requirement that they had a dangerous goods licence where such a vehicle was being moved?‑‑‑It looks like you cut me off.

PN461

SENIOR DEPUTY PRESIDENT HAMBERGER: It does a bit?‑‑‑So I can continue, I can answer that.

PN462

MR BARONI: It's hard to believe that I cut ‑ ‑ ‑ ?‑‑‑Thank you for the opportunity. I will let you know now.

PN463

It's hard to believe that I cut you off where - it wasn't me.

PN464

SENIOR DEPUTY PRESIDENT HAMBERGER: It was you, I think, Mr Gibian. Maybe it was me?‑‑‑With due respect ‑ ‑ ‑

PN465

MR GIBIAN: But it's also unlikely that he was cut off where he said, "I understand" ‑ ‑ ‑ ?‑‑‑ ‑ ‑ ‑ I do remember it was you.

PN466

SENIOR DEPUTY PRESIDENT HAMBERGER: It might have been me that cut you off.

PN467

MR GIBIAN: I don't think it was me ‑ ‑ ‑ ?‑‑‑If I can answer the question.

PN468

‑ ‑ ‑ because I think I go on to a second question, a different question.

*** MATTHEW SAM WHITNALL XXN MR GIBIAN

PN469

SENIOR DEPUTY PRESIDENT HAMBERGER: I don't know how much turns on this, but can I just give - let's give the witness the chance to give his full answer on this question without being cut off?‑‑‑It won't take long. The reason we do it - it's a bit like the trade plates - is that if a vehicle is driving along the road and it gets pulled over and it's clearly a freight industry vehicle, then the load can be looked at, the vehicle could be weighed and tested and see if it fits within the parameters. If it's a new vehicle quite often the authorities are not all familiar with the trade plate regulations because it's not a common industry, and it's the same with these vehicles that we might move from one place to another, is that because it says the name of a business on the side of it that transports a flammable liquid, they generally are quite interested, you might want to say, but as soon as they understand what is transpiring, as in we are not freighting or carrying anything and that the vehicle is being moved completely by the law and that sort of thing, then they generally wave us on. And so in order to effectively assist the driver and the customer to do what we've offered to do, it just makes it easier.

PN470

So your answer is as far as you understand ‑ ‑ ‑ ?‑‑‑It's common sense for us.

PN471

‑ ‑ ‑ you're not required to have the licence?‑‑‑No.

PN472

But for practical purposes ‑ ‑ ‑ ?‑‑‑Correct.

PN473

‑ ‑ ‑ you do have drivers who have a licence?‑‑‑Yes. By way of example, it costs several thousand dollars for a company to degas to the nth degree of the law a pressurised gas vehicle. There are not a lot of occasions that they would need to do that, unless it was being sold at the end of its life and they were completely clearing it up. So we might charge $100 to move that vehicle, then the customer, in practical terms, is not going to spend several thousand dollars for us to be able to move that vehicle for them for $100, if that makes sense. So we then say - if that sort of work comes our way, then we would prefer to have someone that has got a dangerous goods licence. It makes the service much simpler to apply to the customer.

PN474

MR GIBIAN: That's the cross-examination.

CROSS-EXAMINATION BY MR RYAN [11.54 AM]

PN475

MR RYAN: I only have a few questions, Mr Whitnall, just continuing on from my learned colleague's questions. The $18.83, does that include the dangerous goods allowance that you want your drivers to have?‑‑‑I hadn't thought about that.

PN476

Do you know that the award prescribes a dangerous goods allowance?‑‑‑I'm aware of it, but I don't know the details.

PN477

Do you know how much it is?‑‑‑No.

PN478

For a bulk dangerous goods load it's $18.10 per day?‑‑‑Mm‑hm.

PN479

So have you taken that into account in your 18.83, yes or no?‑‑‑No.

*** MATTHEW SAM WHITNALL XXN MR RYAN

PN480

Why do you only employ casual drivers, Mr Whitnall?‑‑‑The nature of our customers, what they require, is only - it's ad hoc work.

PN481

I think Mr Baroni said at the outset that you have 98 casual drivers?‑‑‑Correct.

PN482

Do you have any permanent drivers?‑‑‑No.

PN483

None at all?‑‑‑No.

PN484

How do your drivers get to a particular place to where a vehicle will be picked up?‑‑‑We would shuttle them in our own shuttle vehicles.

PN485

So they're driven by one of your casual drivers?‑‑‑Yes.

PN486

And so they are moving people around with a driver's licence for a light rigid, or just a simple motor vehicle driver's licence?‑‑‑Car licence.

PN487

Car licence, okay. What grade would a car licence be under the transport award?‑‑‑I don't know.

PN488

MR BARONI: I object to the question. That's a legal question.

PN489

SENIOR DEPUTY PRESIDENT HAMBERGER: Sorry?

PN490

MR BARONI: It's a legal question.

PN491

SENIOR DEPUTY PRESIDENT HAMBERGER: Well ‑ ‑ ‑ ?‑‑‑I assume they would be the lowest grade.

PN492

MR RYAN: Would it surprise you that they're grade 2? Grade 1 is the lowest grade, you don't need a licence to operate the vehicle; grade 2 is where you need a car licence. What licence do most of your drivers possess?‑‑‑I would have to go and have a look, but it would probably be a HC.

PN493

Heavy combination?‑‑‑Mm‑hm.

*** MATTHEW SAM WHITNALL XXN MR RYAN

PN494

So that's at grade 5-6 level?‑‑‑I don't know about the grades, but generally the workers we have are older and they're semi-retired, and they generally have acquired an HC licence.

PN495

These casual drivers of yours, how many days would they average per week?‑‑‑I would have to go and have a look at it.

PN496

Would it be three days a week, five days a week?‑‑‑I don't know.

PN497

What percentage of your drivers have a heavy combination licence?‑‑‑As I said, I would have to go and have a look at it. I haven't done that analysis.

PN498

Would Mr Bradac be able to tell us that?‑‑‑He might be. I'm not sure if that's in his statements.

PN499

We might put that to Mr Bradac, then. Why are so many interstate moves done on the weekend?‑‑‑It's the nature of our industry that vehicles that are bought and sold move between the seller and the receiving customer once they're registered or detailed or had whatever work they've done to them by the person selling them, and then they want them moved when - probably, I'm assuming - when the customer is not going to be requiring them. So they would move them when the vehicles are not in operation in normal sort of transport.

PN500

Can I take you to TM4, your further statement, which is dated the 24th of the 11th?‑‑‑Mm‑hm.

PN501

Page 5?‑‑‑Yes.

PN502

And paragraphs 15 and 16?‑‑‑Yes.

PN503

Can you help me understand why local moves are 12 per cent of revenue based on a week, but they become 24 per cent - and double - based over a three-month period?‑‑‑Yes. So local moves on average would be a $100 fee, for example, just as a guide, and an interstate move might be $1000.

PN504

No, I'm talking about, "Local moves are 12 per cent of revenue based over a week", in paragraph 15?‑‑‑Yes.

*** MATTHEW SAM WHITNALL XXN MR RYAN

PN505

And in paragraph 16, "Local moves are 24 per cent of total revenue based over a three-month period"?‑‑‑Yes.

PN506

We're only dealing with local moves here, Mr Whitnall?‑‑‑Okay.

PN507

Why would they change?‑‑‑Why they would change is that about every three weeks ships arrive with trucks on them, and so there's a spike. So depending on the shipping frequency, then we would get a big boost in local movements by that magnitude.

PN508

I think my friend Mr Gibian asked you a couple of times about what type of vehicles you move in terms of up to grade 8. I don't want to spend a lot of time going back there, but paragraph 90 of your submission of 24 November, "The Truck Moves does not relocate combination vehicles." That, in my view, makes grades 5 to 8 effectively irrelevant. Would you agree with that?

PN509

SENIOR DEPUTY PRESIDENT HAMBERGER: Which paragraph was that, Mr Ryan?

PN510

MR RYAN: Paragraph 90 of their submissions of 24 November. It says:

PN511

Truck Moves does not relocate combination vehicles. To the extent it may do so from time to time, it is a negligible.

PN512

And I'm quoting from your statement?‑‑‑Then yes, would be the answer.

PN513

Thank you. In paragraph 23 on page 7, Mr Whitnall, about four lines from the bottom of that paragraph:

PN514

Another concern is that a driver potentially only drives for 50 per cent of their time.

PN515

What happens to an employee who is not driving? Are they paid?‑‑‑Yes.

PN516

So they're paid for all the time they work, but they only drive 50 per cent of their time. Is that the purpose of that particular paragraph there?‑‑‑Correct.

PN517

I just make the observation in paragraph 40 on page 10, Mr Whitnall, that:

*** MATTHEW SAM WHITNALL XXN MR RYAN

PN518

We would ask for a moderation in the application of the casual loading for weekend work in the metropolitan area.

PN519

Do you know what the casual loading is compensation for, Mr Whitnall?‑‑‑No.

PN520

Not at all? No idea?‑‑‑No.

PN521

But you pay a casual loading to all your drivers, but you don't understand what it's for?‑‑‑Correct.

PN522

Would it surprise you that it's in lieu of holiday pay, annual leave, personal leave, things like that?‑‑‑Sorry, yes. Now that you've refreshed my memory, yes.

PN523

You are aware of that?‑‑‑Yes, yes, yes. Sorry.

PN524

Are you aware that most employees who work on a Saturday or Sunday are paid at penalty rates, and generally speaking casual loading doesn't go on top of penalty rates?‑‑‑Yes.

PN525

You are aware of that?‑‑‑(No audible reply)

PN526

So there would be no need to ask for a moderation of the application for weekend work in the metropolitan area?‑‑‑I don't know. I guess there is work that occurs - there is metropolitan work, but it's negligible.

PN527

On weekends?‑‑‑Yes, but it's ‑ ‑ ‑

PN528

And that was the ‑ ‑ ‑ ?‑‑‑But it's - I couldn't remember the last time it happened.

PN529

That was essentially the same answer that you've provided to Sams DP earlier?‑‑‑Yes.

PN530

If the Full Bench has determined that this award will apply to your business, then we're here arguing about what particular provisions may be amended to the award that applies to your business. Would you agree with that?‑‑‑Yes.

*** MATTHEW SAM WHITNALL XXN MR RYAN

PN531

So if it applies to your business, it will apply to every other one of your competitors?‑‑‑I would assume so.

PN532

So your augment about cost structures and cost differentials becomes almost irrelevant, does it not?

PN533

MR BARONI: I object to the question. I'm not quite sure what the premise of that question is.

PN534

SENIOR DEPUTY PRESIDENT HAMBERGER: No, I think the question is fairly clear.

PN535

If it's true that your competitors will be covered by the same award provisions, isn't it true - is the question - that your arguments about costs are irrelevant?‑‑‑I don't think so. I think it's extremely relevant because we will be taken from outside of the industry, into the industry, where we have to compete with businesses that are in the freight road transport industry and have the ability to offset their costs and utilise freight to offset their costs; whereas nothing changes for us except our costs.

PN536

MR RYAN: Do you have rise and fall clauses in your contract?‑‑‑No.

PN537

So if the price of fuel goes up, you can't claim any extra moneys?‑‑‑No.

PN538

So it's a frozen price of fuel?‑‑‑Fuel is irrelevant to us because it comes - it's put into a vehicle and then it's added to the bill dollar for dollar. We're not a freight business.

PN539

Are you aware, Mr Whitnall, that in Mr Bradac's evidence he says fuel, amongst other things, is 41.4 per cent of your costs?‑‑‑Forty one ‑ ‑ ‑

PN540

‑ ‑ ‑ point four per cent?‑‑‑If that's what it says, then I believe that.

PN541

So fuel is a legitimate cost in your business?‑‑‑But it's passed back to the customer because it's not our vehicle. It comes in as the revenue. I will explain. It comes in as a top line revenue amount, as in an invoice amount, and then it's reimbursed by the customer, because it's not our vehicle to fuel and then manage that fuel, or anything to do with that fuel.

*** MATTHEW SAM WHITNALL XXN MR RYAN

PN542

I will put that to Mr Bradac, because his evidence shows clearly that 41 ‑ ‑ ‑

PN543

MR BARONI: With respect, your Honour, that's not what Mr Bradac said. He should put the entire paragraph to Mr ‑ ‑ ‑

PN544

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, I was a bit concerned, it seemed - I think it may have been including other costs. One of the costs ‑ ‑ -

PN545

MR RYAN: That's what I did say. That's what I did say, your Honour. I did say fuel plus other costs was 41 per cent of their cost structure.

PN546

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, but then it's a bit hard to understand what the point of the question is?‑‑‑I could explain it clearly.

PN547

Let's just - okay, so with fuel, just explain how fuel is paid for?‑‑‑Perhaps you had a vehicle that you wanted to move from - that you were located in Sydney and you had bought a vehicle from someone in Melbourne and you had contacted us to relocate that vehicle, but it required fuel, because when we arrived it didn't have enough fuel, by the driver's estimate, to arrive at its destination; then the driver would put some fuel in the vehicle, and then when it arrived we would provide a receipt and add that onto the price for the service, and that's the only involvement we would have with that fuel.

PN548

MR RYAN: If the government introduced a new charge applicable to - a new toll or a new charge applicable to the transport industry, or workers compensation premiums increased, you have no ability to recover that from your client?‑‑‑Very little. I don't know what's going to happen in the future.

PN549

Can I take you to your further statement now, please, Mr Whitnall, on page 2 at paragraph 5:

PN550

Firstly I would like to thank you for the advice that Rares J found you were not covered under either the local or long distance award in respect to the employment of drivers, but I ‑ ‑ ‑

PN551

?‑‑‑Sorry, could you just direct me again. You said further statement?

PN552

Your further statement of 19 January - reply statement?‑‑‑Okay, reply statement.

*** MATTHEW SAM WHITNALL XXN MR RYAN

PN553

Reply statement, sorry?‑‑‑In paragraph 5.

PN554

Paragraph 5?‑‑‑Yes.

PN555

Continues:

PN556

Thank you for advising me that Rares J found that you were not covered under either the road transport or long distance award.

PN557

You have that paragraph there?‑‑‑I do.

PN558

Mr Whitnall, do you now concede that you're covered by the Road Transport and Distribution Award?

PN559

MR BARONI: I object to the question ‑ ‑ ‑

PN560

SENIOR DEPUTY PRESIDENT HAMBERGER: It's a funny - they're not covered now - I mean, not yet.

PN561

MR RYAN: Do you concede that you will be covered by the Road Transport and Distribution Award?‑‑‑I will wait till the outcome of this.

PN562

MR BARONI: Again, what's the point of the question?

PN563

SENIOR DEPUTY PRESIDENT HAMBERGER: I assume there's something coming out of it.

PN564

MR BARONI: It's completely ‑ ‑ ‑ ?‑‑‑No.

PN565

MR RYAN: So you don't concede that you will be covered?‑‑‑I don't know what's going to happen out of this procedure, this process. Sorry, maybe it's a legal, technical thing, but I ‑ ‑ ‑

PN566

SENIOR DEPUTY PRESIDENT HAMBERGER: I'm not quite sure what the point of the question is.

*** MATTHEW SAM WHITNALL XXN MR RYAN

PN567

MR RYAN: I will let it go, rather than confuse the Bench and perhaps Mr Baroni?‑‑‑I'm confused.

PN568

MR BARONI: I'm easily confused.

PN569

MR RYAN: Throughout all your submissions and all your evidence, Mr Whitnall, you've indicated that Truck Moves does not move any freight?‑‑‑Correct.

PN570

Does not operate any vehicles that move freight?‑‑‑Correct.

PN571

I would like to show the witness a picture, if I may, please.

PN572

SENIOR DEPUTY PRESIDENT HAMBERGER: Is this taken on someone's iPhone?

PN573

MR RYAN: Forget about the Toll trailer in the background, please, Mr Whitnall, and just focusing on the Truck Moves truck that you can see in that picture?‑‑‑Mm‑hm.

PN574

Is that one of your trucks?‑‑‑When did you take this? Tuesday, 6 March. It looks like one of ours.

PN575

Does anyone else operate trucks with Truck Moves painted on the side of the vehicle that you're aware of?‑‑‑We have had competitors do that over the years, quite frankly, and had to get it changed.

PN576

This photo was taken at 1 pm on Tuesday, 6 March at Wet Dock?‑‑‑Mm‑hm.

PN577

It has got Queensland plates on it, 470-RAF. Is that one of your vehicles?‑‑‑I would have to check.

PN578

SENIOR DEPUTY PRESIDENT HAMBERGER: We can't see the plates?‑‑‑We've got 14 vehicles, so I'm sorry, I can't remember.

PN579

MR RYAN: No, you can't see the plates, your Honour, correct.

*** MATTHEW SAM WHITNALL XXN MR RYAN

PN580

Why would that cage be on the back of a truck that's not carrying freight?‑‑‑Looking at that picture two things spring to mind. One is that we didn't give you consent to take the photo; the other one is that the vehicle is a dual cab, so that's more its function. So I can anticipate you're going to say that it has got ‑ ‑ ‑

PN581

SENIOR DEPUTY PRESIDENT HAMBERGER: Do you mean its function is to take people around?‑‑‑It has two doors, so it can carry potentially six people.

PN582

Yes. So you're saying it's mainly used to take people around?‑‑‑That's more the function, and the drivers would put their lunches and bags and things on the back.

PN583

Right?‑‑‑The function of owning a vehicle like that is more about the capacity to carry the drivers and their personal items, and probably its buying price.

PN584

MR RYAN: Is there any particular reason why the cage is on the back of the vehicle?‑‑‑It would have just come like that.

PN585

Thank you, Mr Whitnall.

PN586

SENIOR DEPUTY PRESIDENT HAMBERGER: Are you tendering this?

PN587

MR RYAN: Yes, I would like to tender it, your Honour?‑‑‑Can I refuse consent for the photo?

PN588

SENIOR DEPUTY PRESIDENT HAMBERGER: I don't know. I don't think so. You can object.

PN589

MR RYAN: It's taken on a public road.

PN590

MR GIBIAN: It looks like a public road to me. I don't think ‑ ‑ ‑

PN591

MR RYAN: It's on a public road.

*** MATTHEW SAM WHITNALL XXN MR RYAN

PN592

MR BARONI: Your Honour, can I just understand what the tendering is for. There's no suggestion that my client doesn't own vehicles. Of course it owns vehicles. It doesn't own any vehicles for the purposes of transporting goods. We've moved on from that. But what is the purpose of - I mean, there's clear evidence that has been given, and nobody has thought about it, that they shuttle people around from time to time.

PN593

SENIOR DEPUTY PRESIDENT HAMBERGER: There's no freight in the back.

PN594

MR BARONI: There's no freight in the back.

PN595

MR RYAN: There's no freight in the back of this picture, your Honour. Correct.

PN596

MR BARONI: If it's being tendered to ask the Full Bench to draw some inference that because it has got a ute ‑ ‑ ‑

PN597

SENIOR DEPUTY PRESIDENT HAMBERGER: I assume that's what you're - is that what you're going to ask us, to say there must be - you wouldn't have those gates there if you weren't planning to have freight in it. Is that what you're going to ‑ ‑ ‑

PN598

MR RYAN: That would be a resemble observation to draw from the photo, your Honour. Mr Whitnall has given evidence that they're in vans or buses. This is not a van or a bus. This is a vehicle capable of carrying freight.

PN599

DEPUTY PRESIDENT SAMS: Maybe you should find a photo that is carrying freight.

PN600

SENIOR DEPUTY PRESIDENT HAMBERGER: That would be a bit more exciting.

PN601

MR RYAN: I don't think I would get consent to take that photo, your Honour?‑‑‑No, you do ‑ ‑ ‑

PN602

If I could put it this way ‑ ‑ ‑ ?‑‑‑You do have consent to take that photo.

PN603

Mr Whitnall, don't.

PN604

SENIOR DEPUTY PRESIDENT HAMBERGER: Go ahead, Mr Baroni.

*** MATTHEW SAM WHITNALL XXN MR RYAN

PN605

MR BARONI: If I could put it this way, the amendment to the award is specifically dealing with those that don't own vehicles and aren't transporting freight. That's what the amendment to the award - so in other words, it's capturing the vehicle relocation industry, and there's no requirement that it carry freight. I'm not quite sure, at the end of the day, what the purpose of the picture is.

PN606

There's no argument that they own that vehicle, I assume. We can't see the numberplates. But so what? Again, the only basis of tendering this is to suggest that you should draw some inference that they do carry freight. It's just ludicrous, if that's the purpose of it.

PN607

MR RYAN: I have nothing further, your Honour.

PN608

SENIOR DEPUTY PRESIDENT HAMBERGER: I will allow it in. We will call it R1.

EXHIBIT #R1 PHOTOGRAPH OF TRUCK MOVES UTILITY

PN609

SENIOR DEPUTY PRESIDENT HAMBERGER: But obviously you can ask questions about it. In fact, now is your opportunity.

PN610

MR BARONI: Thank you, your Honour.

PN611

DEPUTY PRESIDENT SAMS: Before you do, Mr Baroni.

PN612

Mr Whitnall, do you have a process by which you distribute the work to the 98 casual employees you have?‑‑‑We have an internal software system, a transport - a system that we paid for and had built to run our sort of business. The managers - the operations managers are putting in a job and then allocating a job and that sort of thing.

PN613

Does it run off the clock, as it were?‑‑‑Off the clock?

PN614

You just keep offering people till you find somebody, is that ‑ ‑ ‑ ?‑‑‑Correct.

PN615

You did say that the majority of the workers are older workers and they do have heavy vehicle licences, so ‑ ‑ ‑ ?‑‑‑Just by way of their longevity, they've accumulated that licence, yes. A lot of them have motorcycle licences and other things that they never use.

*** MATTHEW SAM WHITNALL XXN MR RYAN

RE-EXAMINATION BY MR BARONI [12.17 PM]

PN616

MR BARONI: Mr Whitnall, Mr Gibian asked you some questions about your further statement, that's the one you signed on 24 November, and he particularly asked you some questions about the draft order. Do you remember that?‑‑‑Yes.

PN617

Am I to understand - for the benefit of the Full Bench - that the draft order that's attached to your statement represents the only changes that are sought in relation to the award?‑‑‑Yes.

PN618

Is it your understanding, therefore, that in relation, for example, to the ordinary hours of work - and if I could take you to 9.1 - what would happen when the employees work more than 10 hours?‑‑‑Under the proposal?

PN619

Yes?‑‑‑When you say what would happen?

PN620

Sorry?‑‑‑You say what would happen?

PN621

Yes. If they worked 11 hours in the day you would pay overtime?‑‑‑Correct, yes.

PN622

And the same outcome would occur in relation to 9.2?‑‑‑Yes.

PN623

Is there anything in this order that suggests that 38 hours wouldn't apply?‑‑‑No.

PN624

Am I to understand that the rate that's proposed in item 3 - and I think this arises from the question that Mr Ryan asked you about, the DG allowance - it doesn't include the DG allowance, or does it?‑‑‑It doesn't.

PN625

And there's nothing in the order that seeks not to pay allowances?‑‑‑That's correct.

PN626

I think you were asked some questions by Mr Gibian about licences do you remember that?‑‑‑I do.

PN627

And he suggested to you that there would be different licences, et cetera, in relation to different vehicles. Do you remember that?‑‑‑I do.

*** MATTHEW SAM WHITNALL RXN MR BARONI

PN628

I think he asked you some questions about that you would then allocate a person to a particular job because you would know - I withdraw that. You would allocate somebody to a particular job based on the licence requirements of that particular job. Do you remember that?‑‑‑Yes.

PN629

What percentage of your work is done in unregistered vehicles?‑‑‑More than 96 per cent.

PN630

MR GIBIAN: I'm not sure how that arose from cross-examination or was related to a question that was being asked.

PN631

MR BARONI: I will soon get to it.

PN632

SENIOR DEPUTY PRESIDENT HAMBERGER: Keep on going.

PN633

MR BARONI: Sorry, your answer was?‑‑‑More than 96 per cent.

PN634

Where is that 96 per cent performed?‑‑‑Predominantly within Australia, but local deliveries would be the majority of the vehicles.

PN635

So they're new trucks?‑‑‑Yes, brand-new.

PN636

Where do you collect those from?‑‑‑From the wharf or from the truck dealer.

PN637

Let's stay with the wharf. What advice did you get from - let me withdraw that. Who tells you to pick the vehicles up at the wharf?‑‑‑We get a notification from the - - -

PN638

MR GIBIAN: I do object to this. This just seems to be entirely new evidence. If they wanted to describe the process - - -

PN639

SENIOR DEPUTY PRESIDENT HAMBERGER: I assume this is going to be in response to something you asked.

PN640

MR BARONI: Well, it's exactly - - -

*** MATTHEW SAM WHITNALL RXN MR BARONI

PN641

SENIOR DEPUTY PRESIDENT HAMBERGER: I think it is. Well, at the moment - - -

PN642

MR RYAN: It's just a new explanation of a process, which has not been given in chief.

PN643

MR BARONI: With respect to my learned friend, he asked a specific question, which the witness answered, and that was: you allocate people on the basis of the licence requirement for a particular vehicle. That was the question he asked. That was the question he asked.

PN644

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN645

MR BARONI: And this arises directly out of that. And if I get some latitude, your Honour, you will see why.

PN646

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, yes. Carry on.

PN647

MR BARONI: Sorry, Mr Whitnall. You said you get notified by - - -?‑‑‑We will get notified by customs agent that our client utilises to organise the shipping, we presume, of their stock, their vehicles.

PN648

What does the notification contain?‑‑‑It focuses on the arrival date of the ship, into which port; and chassis or commission numbers, which are - one is a vehicle unique identifier, and the other one is a stock number to go into their retail environment, I guess.

PN649

What does that information arm you with?‑‑‑Not much.

PN650

Presumably you know the type of vehicle; that is, the manufacture - the manufacturer of the vehicle - - -?‑‑‑We know who the manufacturer is; where the vehicle has come from, I guess, because it says on the bill of lading.

PN651

When you say not much, how do you deal with that?‑‑‑We know that the products in the vehicle range - Scania or Mercedes - they don't ask us to move anything other than heavy vehicles, so we know that they're going to be vehicles that require a truck licence, for example, but that's it.

PN652

But you don't know which truck licence?‑‑‑No.

*** MATTHEW SAM WHITNALL RXN MR BARONI

PN653

How do you deal with that?‑‑‑We generally would send drivers that have a rigid licence because there's no chance or possibility of them ever having a trailer, so we know they're never going to be articulated. So they require two things, actually: they require a trade plate because they're all unregistered, pre-registration, in fact they're pre-Australian design regulations are they haven't been approved or authorised to be registered in Australia yet; and then we would generally send a heavy rigid or an HC licensed driver, but for simplicity we try and have an HC licensed driver.

PN654

And that's because you don't know what you're picking up?‑‑‑We don't know.

PN655

Do they tell you what the GVM is?‑‑‑No.

PN656

Mr Gibian asked you some questions about your web site. Do you recall that?‑‑‑Yes.

PN657

There's a quotation system on there and it asks you about make, model and rego?‑‑‑Yes.

PN658

How much of that work, as a percentage of your total work, do you do?‑‑‑Do you mean - - -

PN659

You gave some evidence a little while ago or during the course of this morning that I think 96 per cent of your work is the movement of unregistered vehicles?‑‑‑Yes.

PN660

Correct?‑‑‑Yes.

PN661

So are we to understand that that kind of work to which Mr Gibian referred you to would be in the residual 4 per cent?‑‑‑Yes. It's not a big number.

PN662

Do you have any better idea?‑‑‑I would have to go and have a look at it. It's not something we measure.

PN663

When you pick up the vehicles from the wharf, what condition are they in?‑‑‑They're in post-manufacturing, so between coming out of a factory somewhere in the world and arriving at a holding yard or a retailer or wholesaler of that truck.

*** MATTHEW SAM WHITNALL RXN MR BARONI

PN664

What does the truck have on it?‑‑‑Nothing. It's a cab chassis.

PN665

Can it carry goods?‑‑‑No.

PN666

How do you move it from the wharf to - I withdraw that. When you pick it up from the wharf, where you take it?‑‑‑We take it back to wherever the customer has designated it. Generally it's a processing yard or a holding/storage yard where there are other vehicles that they're processing.

PN667

You were asked some questions before about - I think from Mr Ryan - about a DG licence, and I also think you were asked some questions about that from Mr Gibian in relation to driving tankers. Do you recall that?‑‑‑Yes.

PN668

Can you tell the Commission what percentage of work and/or the frequency of that occurs?‑‑‑The percentage would be less than 1 per cent, and the frequency, again negligible. It's not work that we would actively try to do.

PN669

You gave some evidence in response to - I can't remember whether it was his Honour or Mr Ryan or Mr Gibian - about degassing. Do you recall that?‑‑‑I do.

PN670

If the vehicle is degassed - well, let me withdraw that. How do you know that it is degassed?‑‑‑The owner of the vehicle will provide a certificate that certifies that the vehicle is free of gas.

PN671

What is the consequence of that?‑‑‑The consequence?

PN672

Yes?‑‑‑In what regard?

PN673

Are there any licensing consequences?‑‑‑Once it has been degassed?

PN674

Yes?‑‑‑No. It's not a dangerous goods vehicle any more.

PN675

You were asked some questions both by Mr Ryan and Mr Gibian about the grades contained in the award. Do you recall that?‑‑‑I do.

PN676

There was some reference to some evidence you gave, and I think in relation to grades 2 through 8. Do you recall that?‑‑‑I do.

*** MATTHEW SAM WHITNALL RXN MR BARONI

PN677

I just wonder if I can show the witness the grades. Have you got a copy of the award there?‑‑‑I've got it here, yes.

PN678

Can I take you to grade 8. Have you got that there, which I think is page 57?‑‑‑57, grade 8, yes.

PN679

Do you drive - that is, not you, but would you relocate any of the vehicles described in grade 8? Can you have a close look at those? If you don't know, that's fine, but just look at the definitions, and if you can tell the Full Bench?‑‑‑It's not familiar and I don't know. I would have to - the descriptions in there are not vehicles that we would ordinarily be involved with, ever, almost. I can't think of when we have ever - - -

PN680

What about grade 7? Can you have a look at grade 7?‑‑‑No motor, no; GCM, don't know.

PN681

Before you answer that, are you familiar with the term GCM?‑‑‑Gross cubic mass?

PN682

No, just are you familiar with it?‑‑‑Through looking at this.

PN683

So you're not familiar with it?‑‑‑No.

PN684

Have you had a look at grade 7?‑‑‑Yes.

PN685

Would any of those configurations be something that you would relocate? And I'm assuming you're aware what a B double is?‑‑‑Yes. It refers to a low loader, so no; a distribution facility employee, I don't know what that is. Again, it's not something that looks familiar with the work that we do.

PN686

What about grade 6?‑‑‑Again, the GCM just doesn't - it's just not something I've thought about.

PN687

You would understand that grade 6, for example, is in reference to a combination?‑‑‑Yes, I can see that, heavy trailer combination. If we did, it would be a negligible part of our work. And again, work that we don't seek to get involved with.

*** MATTHEW SAM WHITNALL RXN MR BARONI

PN688

What about a grade 5? Can you have a look at that grade, please. I will make it easy for you. We're not talking about forklifts. Can I take you through this step-by-step. The last entry there in grade 5 is a driver of a concrete mixer with five cubic metre bowl and over?‑‑‑Mm‑hm.

PN689

What you say about that?‑‑‑Again, the cubic metre bowl has no relevance to the service we are asked to perform.

PN690

Why is that?‑‑‑We're not in the freight business. Why would they ask us to move - we're not going anywhere with the vehicle to deposit concrete.

PN691

Does the vehicle have the bowl or not have the bowl?‑‑‑It may or may not have the bowl, but you would be in process, so. The bowl manufacturer is quite distinctly different from a vehicle manufacturer or a body builder, so that's where we get involved in - - -

PN692

Given your earlier evidence, are we to understand that to the extent that you would relocate a mixer with a bowl, it would be incidental?‑‑‑Absolutely.

PN693

Can I take you to the second entry there in grade 5. Can you see that, "Driver of a rigid vehicle with four more axles and a GVM exceeding 13.9 tonnes"?‑‑‑Mm‑hm.

PN694

Can I ask you to consider that in the context of unregistered vehicles which you pick up off the wharf. Are you able to determine whether that category applies to you or not?‑‑‑That would be a prime mover.

PN695

Are you aware of the distinction between a rigid vehicle and a prime mover?‑‑‑A rigid is not articulated, a prime mover can be.

PN696

From the information you receive in relation to picking up off the wharf, would you be able to determine if you fell into that category or not?‑‑‑No.

PN697

What about grade 4?‑‑‑I don't know what these ones are: distribution employee, chaser, dogger. I know what a concrete mixer is, I don't know what a straddling truck is. I know what a weighbridge attendant is.

PN698

Your Honour, could the witness be shown - I'm not sure if you still have it - it was marked TWU15, which is the heavy vehicle driver handbook?‑‑‑Thank you.

*** MATTHEW SAM WHITNALL RXN MR BARONI

PN699

Can I take you to page - they're numbered at the bottom - page 12. Do you see that? At the top it has an illustration of a bus?‑‑‑Yes.

PN700

And a flatbed truck. Do you see that?‑‑‑Yes.

PN701

Is that what you understand to be a rigid?‑‑‑Yes.

PN702

Am I then to understand that a prime mover is something different to your understanding of what a rigid is?‑‑‑I don't really understand your question.

PN703

You don't know? That's fine?‑‑‑No.

PN704

Can I take you to the next page?‑‑‑Yes.

PN705

You see there there's a picture of a truck there?‑‑‑Yes.

PN706

Is that your understanding of what a rigid is?‑‑‑Yes.

PN707

Can I take you to the next page, and there's another truck there with a body on it, so it's not a flatbed as in the other two illustrations?‑‑‑Yes.

PN708

Would you say about that configuration? Is that a rigid as well in your mind?‑‑‑It's a rigid. The two top ones are rigids. And it says here the bendy bus or the articulated bus is treated as a rigid.

PN709

Can I take you to page 15. You will see at the top on the right-hand side there is what would normally be described as a semitrailer. Do you see that?‑‑‑Yes.

PN710

You see there's a vehicle at the front of that?‑‑‑Yes.

PN711

What do you refer to that as?‑‑‑The rigid.

PN712

The rigid?‑‑‑Mm‑hm.

PN713

The vehicle - it's a bogey axle. Do you see that?

*** MATTHEW SAM WHITNALL RXN MR BARONI

PN714

MR GIBIAN: I object. The witness has answered the question. My learned friend just can't tell him the answers, I mean if he wants it to be evidence, for Christ's sake.

PN715

MR BARONI: Can I take you to paragraph 7 of your first statement. If I can take you to paragraph 7 when you make reference to the Truck Moves - sorry, I withdraw that. You make reference to a video in 7.1?‑‑‑Yes.

PN716

See that? And Mr Gibian asked you a question about - I think words to this effect, that it is what you saw in relation to this one incident. Do you recall that?‑‑‑Yes.

PN717

How often does that type of work get performed by Truck Moves?‑‑‑96 per cent or higher of the time.

PN718

Can I then take you to paragraph 8 where you describe what you see, and particularly at 8.1. I think you gave some evidence that you observed - you had CCTV cameras which recorded a PrixCar truck - PrixCar, which is ‑ ‑ ‑ ?‑‑‑A prime mover with a float trailer.

PN719

Yes. PrixCar?‑‑‑Yes.

PN720

How often does Truck Moves do that work?‑‑‑Never.

PN721

Are you familiar with the National Heavy Vehicle Laws?‑‑‑I know they exist, but again - - -

PN722

Mr Gibian asked you a question about loading and unloading. Do you recall that?‑‑‑Yes.

PN723

And he put to you a proposition that there are many parts of the transport industry where a driver may have nothing to do with loading and unloading. Do you recall that?‑‑‑I do.

PN724

Are you aware whether that driver, in relation to that load that ‑ ‑ ‑

PN725

MR GIBIAN: If he doesn't know the answer to these questions, you can't just tell him what the answers are.

*** MATTHEW SAM WHITNALL RXN MR BARONI

PN726

MR BARONI: Are you aware whether that driver has any obligations ‑ ‑ ‑

PN727

MR GIBIAN: It's the same thing.

PN728

MR BARONI: No, it's not.

PN729

MR GIBIAN: What are you - what does the national road vehicle law say ‑ ‑ ‑

PN730

MR BARONI: What is your knowledge about the National Heavy Vehicle Laws, and can you let us know what they are, please?‑‑‑My broad understanding is that they ensure that people operate vehicles as safely as possible within the confines of the laws.

PN731

Are there any particular things that you know about them that you can tell us? As in the range of matters they deal with?‑‑‑They talk to registered vehicles primarily. And they talk to rest hours.

PN732

Anything else?‑‑‑Loading and unloading and load restraint, and that sort of thing.

PN733

How do you - and if you don't know the answer, that's fine - what's your knowledge about the loading and unloading provisions of the National Heavy Vehicle Law as they relate to a driver?‑‑‑I imagine that that's the primary focus of it.

PN734

You're not sure, or ‑ ‑ ‑ ?‑‑‑I'm not sure.

PN735

Excuse me, your Honour, for one moment. They are my questions.

PN736

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you very much.

PN737

You're excused now. Thank you.

<THE WITNESS WITHDREW [12.43 PM]

PN738

SENIOR DEPUTY PRESIDENT HAMBERGER: We will adjourn until quarter to 2.

*** MATTHEW SAM WHITNALL RXN MR BARONI

LUNCHEON ADJOURNMENT [12.43 PM]

RESUMED [1.45 PM]

CONFIDENTIAL TRANSCRIPT FROM PARAGRAPH 739-1584

PN1585

SENIOR DEPUTY PRESIDENT HAMBERGER: How are we going to proceed?

PN1586

MR GIBIAN: The position with Mr Haining has got worse, I think. He has had to leave Perth. Apparently he can be in a position where he may be available at about midday tomorrow.

PN1587

SENIOR DEPUTY PRESIDENT HAMBERGER: So he is not available now anyway?

PN1588

MR GIBIAN: He could be available now but not for 30 minutes or something, which is waiting around and not ideal for everyone, I think.

PN1589

SENIOR DEPUTY PRESIDENT HAMBERGER: Let's see if we can organise to get him tomorrow at that time. We will try and make some arrangements. Otherwise, that's probably all for today.

PN1590

MR GIBIAN: We will need to confirm that tonight.

PN1591

SENIOR DEPUTY PRESIDENT HAMBERGER: See what you can do, yes.

PN1592

MR GIBIAN: But if there's any change to that, we will let you know in the morning, obviously.

PN1593

SENIOR DEPUTY PRESIDENT HAMBERGER: All right, we will adjourn until - - -

PN1594

MR GIBIAN: I just have one request, and I think this is only because it's arisen - it's been so long since the last time we were discussing these issues - I was just going to ask whether it was possible if I could uplist or obtain a copy from the Commission of two or three exhibits that were tendered on the previous occasion just to make sure that I am referring to the correct document in the ones that I've retained.

PN1595

SENIOR DEPUTY PRESIDENT HAMBERGER: Which ones?

PN1596

MR GIBIAN: It was TWU-11 to TWU-14, if that were possible. I may not need them all, but if that was possible?

PN1597

SENIOR DEPUTY PRESIDENT HAMBERGER: When do you want them?

PN1598

MR GIBIAN: As soon as possible, obviously.

PN1599

SENIOR DEPUTY PRESIDENT HAMBERGER: Can you talk to my associate?

PN1600

MR GIBIAN: I will talk to your associate. I just thought I should flag that at least.

PN1601

SENIOR DEPUTY PRESIDENT HAMBERGER: All right, thank you, we will adjourn until 10.30, thank you.

ADJOURNED UNTIL TUESDAY, 20 MARCH 2018 [4.07 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MATTHEW SAM WHITNALL, SWORN.......................................................... PN98

EXAMINATION-IN-CHIEF BY MR BARONI.................................................. PN98

EXHIBIT #TM4 FURTHER STATEMENT OF MATTHEW SAM WHITNALL DATED 24/11/2017............................................................................................................... PN110

EXHIBIT #TM5 REPLY STATEMENT OF MATTHEW SAM WHITNALL DATED 19/01/2018............................................................................................................... PN111

CROSS-EXAMINATION BY MR GIBIAN...................................................... PN111

EXHIBIT #TWU15 THE ROADS AND MARITIME HEAVY VEHICLE DRIVER HANDBOOK......................................................................................................... PN212

CROSS-EXAMINATION BY MR RYAN......................................................... PN474

EXHIBIT #R1 PHOTOGRAPH OF TRUCK MOVES UTILITY.................. PN608

RE-EXAMINATION BY MR BARONI............................................................ PN615

THE WITNESS WITHDREW............................................................................ PN737