PN1602

SENIOR DEPUTY PRESIDENT HAMBERGER: So where are we?

PN1603

MR BARONI: Your Honour, I had a very brief discussion with my friend this morning relating to some of the evidence of Mr Bradac, in particular, in relation to a series of tables with respect of which he was cross-examined by Mr Gibian in the confidential statement. There were obvious errors in those statements. I withdraw that. There were some obvious errors in those calculations. Mr Bradac has overnight revisited those and it was based on some incorrect assumptions. For example, your Honour, there was - - -

PN1604

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, we accept that he admitted there were some mistakes with them, if you like.

PN1605

MR BARONI: He's recalculated. Now, I don't want to - I don't want to - - -

PN1606

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, so what are you asking?

PN1607

MR BARONI: We want to submit the recalculated tables and if Mr Gibian needs to re-examine Mr Bradac about those, then I'm happy to do that. It doesn't have to be today. I'm not suggesting that the order of proceedings be altered today. But I think it is important that ultimately the Full Bench does have before it the proper costings. There's no suggestion that they were deliberately incorrect or anything of the like. I mean, I think it is important at the end of the day that the Full Bench has the proper information before it. They were simply incorrect assumptions in a formula in a spreadsheet which spat out erroneous figures. They have been revised which has now reduced the loss, so to speak, or the cost impact. But I think it's important that the Full Bench be appraised of these matters.

PN1608

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. Mr Gibian, what do you say?

PN1609

MR GIBIAN: We are not in a position to - well, we don't think the Full Bench would accept, after cross-examination has finished, a witness trying to fix up what were obvious deficiencies and gross overstatements in the evidence. We're not in a position to deal with it. I'd have to sit up on Sunday night going through the existing calculations and I'd have to spend some hours doing that if I wanted to look at any revised - what's more, it tails into the evidence, the cross-examination of Mr Whitnall and Mr Bradac because the issue of the assumptions goes to the cross-examination as to the nature of the work performed and the like. So it's really going back to square one. Mr Whitnall has been sitting in and hearing all the evidence when Mr Bradac was being cross-examined. I'd have to recall Mr Whitnall as well to cross-examine him on what now seems to be the new asserted assumptions which, on my understanding - I haven't seen the documents, but on my understanding don't fit with the evidence that he gave. And so we'd really have to go back to square one and cross-examine again on a whole range of issues if there be an attempt. So it's not simply an issue of calculation error. It's not a calculation error.

PN1610

SENIOR DEPUTY PRESIDENT HAMBERGER: No, it's the assumptions made.

PN1611

MR GIBIAN: Yes, and we'd have to go back to square one and start cross-examining again.

PN1612

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, we are not going to allow you to resubmit the revised calculations. We honestly think you've had plenty of opportunity to get this right and I don't think it would be fair on the TWU to, you know, essentially, have another go if I can put it that way. So on that basis, we've get - well, where are we up to now with your witnesses?

PN1613

MR GIBIAN: With Mr Bradac, I did want to ask him some questions in relation to the TM9 which was permitted to be admitted yesterday.

PN1614

SENIOR DEPUTY PRESIDENT HAMBERGER: We did say you could do that, yes.

PN1615

MR GIBIAN: Hopefully it won't be very long. I'm agnostic as to when that occurs other than that I had a difficulty this afternoon.

PN1616

SENIOR DEPUTY PRESIDENT HAMBERGER: Do you want to do that now?

PN1617

MR GIBIAN: Yes, that's probably the sensible course.

PN1618

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, so we'll call Mr Bradac.

<JOHN BRADAC, RECALLED [10.38 AM]

CROSS-EXAMINATION BY MR GIBIAN [10.38 AM]

PN1619

MR GIBIAN: Thank you, Mr Bradac, I just wanted to - - -

*** JOHN BRADAC XXN MR GIBIAN

PN1620

SENIOR DEPUTY PRESIDENT HAMBERGER: We've got other witnesses in here, well, by video. Is that going to be an issue?

PN1621

MR BARONI: I think, your Honour, it'd be appropriate that they be outside if Mr Bradac is being cross-examined.

PN1622

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. So can we just ask the witnesses who are in Melbourne to just leave the room. We'll be able to get them back in, won't we? If you could just pop outside for a bit while we deal with this witness, thanks.

PN1623

MR GIBIAN: I don't know, Mr Bradac, whether you have a copy of the statement that your or was filed on your behalf in these proceedings of 1 March 2017?‑‑‑No.

PN1624

Do you have any of your statements with you?‑‑‑No, they're in my bag. I forget to.

PN1625

Can you? Perhaps if you could be released to obtain them, that might be the sensible course. Sorry, among those, was there, you've got four statements, I think, in total, but there was three which were in this stage, was it were, and there was one of 1 March last year which is in the earlier stage of proceedings?‑‑‑Yes, I've got them.

PN1626

All it does is annex an affidavit that was prepared in relation to the Federal Court proceedings?‑‑‑Yes.

PN1627

That's correct?‑‑‑Yes.

PN1628

In that affidavit, if you go to paragraph 28 on page 8, you refer to the issue of the transport worker classifications in the Road Transport and Distribution Award referring to the gross vehicle mass of a vehicle. Do you see that?‑‑‑Yes, I can.

PN1629

I just wanted to ask if you recall - and tell me if you don't - I can remind you by the transcript - but do you recall that in the context of the Federal Court proceedings that Truck Moves abandoned any suggestion that any difficulty in ascertaining the - there was any difficulty in applying the Road Transport Award as a result of any asserted difficulty in ascertaining the gross vehicle mass of a vehicle?‑‑‑I don't remember at all, I'm sorry.

*** JOHN BRADAC XXN MR GIBIAN

PN1630

It might be appropriate then if I just tender a portion of the transcript in which that was done. I'm not actually going to. I don't need to ask him about it. If he doesn't recall, he doesn't recall the transcript. It says what it says.

PN1631

SENIOR DEPUTY PRESIDENT HAMBERGER: Do you want this marked?

PN1632

MR GIBIAN: Yes.

PN1633

SENIOR DEPUTY PRESIDENT HAMBERGER: So the transcript - - -

PN1634

MR GIBIAN: It's not the whole transcript, obviously, it's just a portion of it.

PN1635

SENIOR DEPUTY PRESIDENT HAMBERGER: An extract of the transcript from the Federal Court proceedings on 2 September 2015 is TWU16.

EXHIBIT #TWU16 EXTRACT OF TRANSCRIPT FROM FEDERAL COURT PROCEEDINGS ON 02/09/2015

PN1636

MR GIBIAN: Can I then take you to the statement headed "Reply Statement of John Bradac" of 19 January this year?‑‑‑Yes.

PN1637

Do you have that?‑‑‑Yes, I do.

PN1638

You will see on the first page of that at the bottom there's a heading "Plates" and then in paragraph 4 it reads: "Annexed and marked JB7 is the photo of an advice plate permissible chart." Do you see that?‑‑‑Yes, I do.

PN1639

And, sorry, if we just go over the page at paragraph 5, there's a reference - or it's indicated that annexed and marked as JB8 is the compliance plate that is placed on the vehicle after processing at the VPC?‑‑‑Yes.

PN1640

That's the vehicle processing centre. Can you just go to those annexures. Do we understand that that's referable to the same vehicle or the same type of vehicle at least?‑‑‑Yes.

PN1641

So JB7 records the permissible total weight of 26 tonnes?‑‑‑Yes.

PN1642

Is that right?‑‑‑Yes.

*** JOHN BRADAC XXN MR GIBIAN

PN1643

Then JB8, going over the page, identifies the gross vehicle - it's a bit hard to read?‑‑‑Yes, I agree.

PN1644

But the first line under the VIN number is the vehicle - the gross vehicle mass, I should say, of 26 tonnes?‑‑‑Yes.

PN1645

So that's the same measure?‑‑‑Yes.

PN1646

So in relation to that vehicle, there was no difficulty in identifying the GVM at all times?‑‑‑Not that vehicle.

PN1647

Sorry, yes?‑‑‑It says "GVM" on the second plate. It just says "permissible total weight" on the first place.

PN1648

But that's the same thing, correct?‑‑‑I can assume it is.

PN1649

It's both 26 tonnes in both cases, isn't it? Do you have any difficulty - - -?‑‑‑It's the same number, yes.

PN1650

It's the same measure, correct? Would you know the answer or you don't know the answer?‑‑‑No, I don't. One is a permissible weight and I think I said in my statement that that could vary from time to time. That could also change, I'm pretty sure.

PN1651

In the only example you've provided in your statement, it's the same, correct?‑‑‑That's right, yes.

PN1652

In the only example you've provided in the statement, it's the same, correct?‑‑‑Yes.

PN1653

Have you any reason to believe that the permissible vehicle weight is a different measure to gross vehicle mass?‑‑‑I have nothing to say to that.

PN1654

Can you go back to paragraph 4 of the reply statement, TM7, and you'll see at the bottom of the first page you refer to JB7 and you say that the advice plate permissible chart from the manufacturer states the permissible total weight of the vehicle, do you see that?‑‑‑Yes.

*** JOHN BRADAC XXN MR GIBIAN

PN1655

Then over the page, you say: "This is what our drivers would see when driving the vehicle from the wharf." Do you see that?‑‑‑Yes.

PN1656

That was true. That's true, is it, and you put it in the statement because it's true?‑‑‑Yes.

PN1657

You then yesterday for the first time provided photos of two vehicles which were within the - and I take it, in preparing the reply statement, you intended to be truthful with the Commission and to not mislead?‑‑‑Yes.

PN1658

You then provided photos of two vehicles, as I understand it. Do you have that bundle of materials that was marked as TM9?‑‑‑Yes, I do.

PN1659

You do?‑‑‑Yes.

PN1660

On page 4, that's the first vehicle, is that right?‑‑‑Yes, correct.

PN1661

How many axles does it have?‑‑‑Three.

PN1662

If it were driven on the road in that form, in the form that it appears there, it could not carry any load at all, is that right?‑‑‑Correct.

PN1663

I think the second vehicle is at page 7 and that has five axles?‑‑‑Yes.

PN1664

In that form, it could not carry any load at all if driven in that format, correct?‑‑‑Correct.

PN1665

Can I just have a moment? Nothing further.

PN1666

SENIOR DEPUTY PRESIDENT HAMBERGER: Any re-examination?

PN1667

MR BARONI: Yes.

RE-EXAMINATION BY MR BARONI [10.47 AM]

*** JOHN BRADAC RXN MR BARONI

PN1668

MR BARONI: Mr Gibian asked you some questions about TM9 which were those photos that you provided to the Commission yesterday. Do you recall that?‑‑‑Yes, I do.

PN1669

In your reply statement, Mr Gibian took you to JB7. Do you recall that?‑‑‑Yes.

PN1670

Where do I find that plate on any of those vehicles in TM9?‑‑‑You don't. They're un-plated.

PN1671

So what does the driver see then when they go to the wharf?‑‑‑They see the identification of the windscreen that says, if you look at No.8, JW0462.

PN1672

Mr Gibian asked you a couple of question in relation to whether that vehicle could carry a load or not. Do you recall that?‑‑‑Yes.

PN1673

SENIOR DEPUTY PRESIDENT HAMBERGER: Can I just query your previous answer? So you said in your statement, MT7, at paragraph 4, over the page at 2, you said: "That's what our drivers would see when driving the vehicle from the wharf"?‑‑‑Yes.

PN1674

So can you just explain. So are you saying that they would always, when they pick them up from the wharf, they would have those plates on?‑‑‑Only one type of vehicle has that plate. That's a Mercedes Benz.

PN1675

It's just that's not what you say in your statement. You don't make that distinction. You just say: "This is what our drivers would see when driving a vehicle from the wharf"?‑‑‑Yes, it's one plate of one vehicle. It's the same vehicle. It's a Mercedes Benz. It's the same VIN number, both plates.

PN1676

MR GIBIAN: I mean, that's why we have difficulty with receiving material at the last minute which is completely different to the evidence.

PN1677

SENIOR DEPUTY PRESIDENT HAMBERGER: So despite the fact that you said that in TM7, you're now saying that's only applicable to one particular type of vehicle?‑‑‑Yes, that's correct, your Honour.

PN1678

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

PN1679

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, thanks.

*** JOHN BRADAC RXN MR BARONI

PN1680

MR GIBIAN: I'm unclear. We'll submit that very little weight can be placed on a lot of what these witnesses have said in circumstances where they at the last minute change their evidence in a manner which is completely contrary to material that they have put before the Commission in the past.

PN1681

MR BARONI: With respect - - -

PN1682

SENIOR DEPUTY PRESIDENT HAMBERGER: We'll worry about that when we get to it.

PN1683

MR BARONI: Indeed. I just foreshadow that.

PN1684

SENIOR DEPUTY PRESIDENT HAMBERGER: So now who shall we do? So we've got the two witnesses in Melbourne. Presumably that's what we're - - -

PN1685

MR GIBIAN: Yes, Mr Cassar and Mr DeClase.

PN1686

SENIOR DEPUTY PRESIDENT HAMBERGER: I'm sorry, Mr Bradac. I'm sorry?‑‑‑Thank you. Thank you, your Honour.

PN1687

You're excused again?‑‑‑Thank you, Commissioners.

<THE WITNESS WITHDREW [10.50 AM]

PN1688

MR GIBIAN: I don't think we have any preference but Mr Cassar first and then Mr DeClase.

PN1689

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay. Can we organise for Mr Cassar in Melbourne - can we ask for Mr Cassar to come in?

PN1690

THE ASSOCIATE: Please state your full name and address.

PN1691

MR CASSAR: Anthony Cassar, (address supplied).

<ANTHONY CASSAR, SWORN [10.51 AM]

EXAMINATION-IN-CHIEF BY MR GIBIAN [10.51 AM]

*** ANTHONY CASSAR XN MR GIBIAN

PN1692

MR GIBIAN: Thank you, Mr Cassar. My name is Mark Gibian. I'm appearing for the Transport Workers' Union. Can you hear and see me?‑‑‑Yes, I can.

PN1693

There was some hesitation there. You can hear and see me okay?‑‑‑I can, yes.

PN1694

Okay, Mr Cassar, you've just given your full name as Anthony Cassar, is that correct?‑‑‑That's correct.

PN1695

Your address is (address supplied)?‑‑‑That's also correct.

PN1696

You're currently human resources manager for PrixCar Services Pty Ltd?‑‑‑That's correct.

PN1697

Now, Mr Cassar, you've made a statement for the purposes of these proceedings before the Fair Work Commission. Do you have a copy of that with you?‑‑‑Yes, I do.

PN1698

It was signed, I think, on 21 December last year and runs to some 41 paragraphs, 10 pages, plus there is an annexure, being the enterprise agreement, correct?‑‑‑That's correct.

PN1699

Have you had an opportunity to read that statement through?‑‑‑Yes, I have.

PN1700

And it's true and correct to the best of your knowledge and recollection?‑‑‑Yes, I think it is.

PN1701

I tender this statement.

PN1702

SENIOR DEPUTY PRESIDENT HAMBERGER: So Mr Cassar's statement is TWU17.

EXHIBIT #TWU17 WITNESS STATEMENT OF ANTHONY CASSAR DATED 21/12/2017

PN1703

DEPUTY PRESIDENT SAMS: Mr Cassar, could you just pull the microphone down a little bit towards you? It's just a little - that's better?‑‑‑Can you hear me better now?

*** ANTHONY CASSAR XN MR GIBIAN

PN1704

Much better, thank you.

PN1705

MR GIBIAN: Thank you, Mr Cassar. Mr Baroni, how appears for Truck Moves and I think two other companies - vehicle relocation company - will now ask you some questions?‑‑‑That's fine.

CROSS-EXAMINATION BY MR BARONI [10.53 AM]

PN1706

MR BARONI: Good morning, Mr Cassar, it's Mr Baroni - can you hear me?‑‑‑Good morning.

PN1707

Can you hear me okay?‑‑‑Yes, I can.

PN1708

Can you see me?‑‑‑Yes, I can.

PN1709

Now, I'm going to ask you some questions about your statement. What did Redflex do?‑‑‑Redflex?

PN1710

Yes?‑‑‑I don't work for Redflex no more.

PN1711

I know that. I asked you what they do?‑‑‑They were mobile - - -

PN1712

Yes - - -?‑‑‑ - - - speed camera enforcement program operator, so they design and manufacture technologies in Australia and implement out in the field.

PN1713

Working with that company, you had no exposure to the transport industry, did you?‑‑‑No.

PN1714

So the first time you had exposure to the transport industry was when you started working with PrixCar, is that correct?‑‑‑Yes, that's correct.

PN1715

So prior to that, had you any experience in negotiating any enterprise agreements?‑‑‑No, I hadn't.

PN1716

So your entire exposure to enterprise agreements was when you started with PrixCar, is that correct?‑‑‑That's correct.

*** ANTHONY CASSAR XXN MR BARONI

PN1717

In paragraph 5 you said you concluded negotiations with the Transport Workers' Union, you see that?‑‑‑Yes.

PN1718

Who led those negotiations? Was it you?‑‑‑Glen DeClase.

PN1719

Is it fair to say that's the first time you had any exposure to the Road Transport Award?‑‑‑No.

PN1720

You had some exposure when, when you first started?‑‑‑Yes, when I first started with PrixCar.

PN1721

Now, when you put your statement together - - -?‑‑‑Yes.

PN1722

- - - did you do that by yourself?‑‑‑Yes, I did - why?

PN1723

Well, you have if not similar exactly the same paragraphs in Mr Cassar's statement. Have you noticed that?‑‑‑I am Mr Cassar.

PN1724

Sorry, I'm talking about Mr DeClase's statement.

PN1725

MR GIBIAN: He would have to be asked whether he's seen Mr DeClase's statement.

PN1726

MR BARONI: Have you seen Mr DeClase's statement?‑‑‑Yes, I have.

PN1727

You have? Do you accept that there are similar if not clauses which are exactly the same paragraphs?‑‑‑Yes, there are similar clauses.

PN1728

Why is that?‑‑‑I couldn't tell you off the top of my head.

PN1729

Sorry?‑‑‑I couldn't tell you from the top of my head - maybe it was just in regards to discussions that we had.

PN1730

You had word-for-word discussions with Mr DeClase about your evidence?‑‑‑Is it word for word? Which one are you referring to, saying it's word for word?

*** ANTHONY CASSAR XXN MR BARONI

PN1731

I'll take you to them. Could the witness be shown the statement of Mr DeClase? Is that in Melbourne? Just excuse me for a moment, Mr Cassar?‑‑‑That's okay.

PN1732

SENIOR DEPUTY PRESIDENT HAMBERGER: We don't have it in Melbourne so perhaps you could read out - - -

PN1733

MR BARONI: I'll read it out. Can I take you to paragraph 7 of your statement? Have you got that there?‑‑‑Yes.

PN1734

Can you read the first - can you read that whole paragraph for us, please?‑‑‑"There are two divisions in the PrixCar business - one division is the vehicle-processing centre. Prior to 2012 the business of PrixCar only involved the VP centre."

PN1735

Now, the first two sentences of Mr Cassar's statement, paragraph 7, says this: "There are a number of VPCs throughout Australia. The VPCs process new vehicles that have been brought into Australia and deliver from the port to the VPC." You see that? That's exactly - nearly the same?

PN1736

MR GIBIAN: I object to that. In a sense, I'm sure the witness can deal with it but the paragraphs are not the same. Two sentences seem to be similar.

PN1737

SENIOR DEPUTY PRESIDENT HAMBERGER: The witness can deal with it but let the witness - - -

PN1738

MR GIBIAN: Well, I mean, I think it's unnecessarily harassing of the witness where all the sentence says is they've got two divisions. I mean - - -

PN1739

MR BARONI: I've just started and with respect, your Honour, if Mr Gibian - - -

PN1740

SENIOR DEPUTY PRESIDENT HAMBERGER: You carry on.

PN1741

MR BARONI: Yes, thank you. Then can I take you - can you read out paragraph 8 of your statement?‑‑‑"The other is a transport division of the business. The aspect of the business commenced operation in 2012 when PrixCar purchased Toll Auto Logistics and this makes up the transport arm of PrixCar."

*** ANTHONY CASSAR XXN MR BARONI

PN1742

I'll read you out paragraph 6 of Mr DeClase's statement: "There are two divisions of the business PrixCar - one division is the vehicle-processing centre and the other is the transport division of the business. Prior to 2012 the business of PrixCar only involved the VPC. In 2012 PrixCar purchased Toll Auto Logistic, which now makes up the transport arm of PrixCar." Very similar, if not the same, isn't it?‑‑‑Yes.

PN1743

Why is that? Can you tell me?‑‑‑No, I can't.

PN1744

Can I take you to paragraph 34 of your statement. Can you read that out for us?‑‑‑"In relation to paragraph 112 of 129 about the matter in which the relevant award might apply, I've no knowledge about any assertion that the award was not designed for the transport companies such as PrixCar. In fact, it is my view that the relevant award was purpose-built to address the needs of the transport industry in their operations."

PN1745

I'll read you out paragraph 39 of Mr DeClase's statement: "In relation to paragraph 112 to 129 about the manner in which the relevant award might apply I've no knowledge of the instrument not being designed for a transport company. In fact, it was my view that the relevant awards were purpose-built to address the needs of the road transport industry in their operations." You'd agree with me that's nearly identical?‑‑‑Similar - it's not identical.

PN1746

I said nearly identical - would you agree with that?‑‑‑It's similar.

PN1747

It's nearly identical. Would you agree with that?

PN1748

SENIOR DEPUTY PRESIDENT HAMBERGER: I think he's answered - he's answered the question.

PN1749

MR BARONI: Can you tell us why they're nearly the same?‑‑‑I can't recall.

PN1750

You can't recall?‑‑‑No, look, when I was putting this together I was consulting with Glen.

PN1751

You spoke about the evidence you were going to give, didn't you?‑‑‑I'm sorry?

PN1752

You spoke about - you spoke about the evidence you were going to give with Glen, didn't you?‑‑‑The evidence I was going to give with Glen?

*** ANTHONY CASSAR XXN MR BARONI

PN1753

Yes, in these proceedings?‑‑‑I didn't talk to Glena bout the evidence I was going to give. I talked to Glen about what the response I was asked to present - - -

PN1754

And your response is nearly identical to that of Glen?‑‑‑Yes.

PN1755

Yes, and you can't explain that?‑‑‑No. It's possibly due to the discussions I did have with him.

PN1756

But it's nearly word for word, you'd agree with that?

PN1757

SENIOR DEPUTY PRESIDENT HAMBERGER: I think we can move on?‑‑‑I think I've already acknowledged that.

PN1758

MR BARONI: Can I take you to paragraph 41 of your statement? Have you got that there?‑‑‑I do.

PN1759

Can you read that out for us, please?‑‑‑"I have been provided with a copy of the draft determination attached to the (indistinct) submission of 24 November 2017. I know that the minimum hourly rate proposed in the draft is 18.83, with the current Australian minimum hourly rate being 18.29. In my view this does not recognise the experience, skills and qualifications of the individuals engaged to complete the work required in the industry. These rates would also not take into account other factors such as critical mass, risk, hazards associated with the work to be completed. Companies like PrixCar pay rates set out in the 2016 agreement that are in excess of the relevant award to recognise the experience and skill of drivers who we engage and to properly remunerate them for the work they undertake. Any determination that sets out one rate for the driving of such varied vehicles grossly undervalues the works that drivers engage in in the sector complete."

PN1760

I'll just read out paragraph 40 of Mr DeClase's statement for you: "I've been provided with a copy of the draft determination attached to Truck Move's submissions at 24 November 2017. I note that the minimum hourly rate proposed in the draft order is 18.83 (when the current Australian minimum hourly rate had been 18.29.) In my view the rate does not recognise the experience, skills or classification of the individuals engaged to complete the work required in the industry. Companies like PrixCar pay rates are set out in the 2016 agreement that are in excess of the relevant award to recognise the experience and skill of the drivers who we engage and to properly remunerate them for the work they undertake. Any determination that sets out one rate for the driving of such varied vehicle types grossly undervalues the work the drivers engage in the sector complete." That's exactly the same, isn't it, Mr Cassar?‑‑‑It is exactly the same.

*** ANTHONY CASSAR XXN MR BARONI

PN1761

And you still want to maintain that you didn't discuss your evidence with Mr DeClase?‑‑‑No, we discussed things - me and Glen DeClase would have discussed things.

PN1762

You sat down and wrote out the same clauses, didn't you - the same paragraphs, didn't you, with Mr DeClase?‑‑‑Yes, maybe for some of them.

PN1763

So you do - you did?‑‑‑Yes.

PN1764

You did - so you sat down with Mr DeClase and wrote out the same paragraphs and discussed your evidence with Mr DeClase?‑‑‑No, I didn't sit down with Glen DeClase and write the same paragraphs. When I was asked to present information for this hearing it's possible that this was sent - some of this was sent to me.

PN1765

So it's not your evidence, then?‑‑‑A lot of it is, yes.

PN1766

A lot of it? Which parts aren't?‑‑‑All of it is.

PN1767

MR GIBIAN: I object to that. To say that material was sent to him is different to saying it's not his evidence. He signed the statement and it's not a proposition that should - - -

PN1768

SENIOR DEPUTY PRESIDENT HAMBERGER: Can I just ask the witness; how did you prepare this statement? Tell me how you actually went about putting this statement together?‑‑‑It's based on information that I was - I discussed with a lady at the TWU.

PN1769

Okay, so you discussed what with Ms Carr, was it?‑‑‑Sorry?

PN1770

Okay, so you discussed - let me just - I'm not saying there's anything wrong about this, I just want to - you had a discussion with somebody from the TWU. Did she then send you a draft based on the discussions you had had? I'm not saying there's anything wrong with that, I'm just saying is that how it worked?‑‑‑Yes, I think it worked like that.

PN1771

Then did you read it over?‑‑‑Yes, I did read it over.

*** ANTHONY CASSAR XXN MR BARONI

PN1772

Did you make any changes to what had been written?‑‑‑Yes, to most of it - there were some things I totally agreed with.

PN1773

But was there any - I'm just curious, I suppose - is there anything - you know, you were sent this draft. Did you need to make any changes to it or were you happy with it the way it was?‑‑‑No, no, no - there was questions that I was required to - - -

PN1774

Okay, so did it say, you know, "What do you say about this", or, "IS this correct?" Yes. Then you - what did you do then?‑‑‑I looked at all the statements that I had been provided and put my response together.

PN1775

Okay, and then what, sent that back to the TWU?‑‑‑That's right.

PN1776

Yes, okay. Thanks.

PN1777

MR BARONI: Now, can I take you to paragraph - back to paragraph 7 and it's not that particular 7 but part of your statement talks about the history of PrixCar. Now, you had no direct knowledge of the information you provided there, did you?‑‑‑I'm just having a look, sorry - paragraph 7?

PN1778

No, no - in those series of paragraphs where you talk about the structure and business of PrixCar - sorry, Mr Cassar. I've misled you there?‑‑‑I'm not sure - - -

PN1779

SENIOR DEPUTY PRESIDENT HAMBERGER: What's the question?

PN1780

MR BARONI: What his knowledge is of what he asserts in those paragraphs.

PN1781

SENIOR DEPUTY PRESIDENT HAMBERGER: Which paragraphs?

PN1782

MR BARONI: All of them.

PN1783

SENIOR DEPUTY PRESIDENT HAMBERGER: From where to where?

PN1784

MR BARONI: 7 to 14.

*** ANTHONY CASSAR XXN MR BARONI

PN1785

SENIOR DEPUTY PRESIDENT HAMBERGER: 7 to 14?‑‑‑That is pretty much what PrixCar does.

PN1786

MR BARONI: No, no - what I'm asking you is what is your knowledge in relation, for example, to paragraph 13? How did you get that knowledge?‑‑‑Paragraph 13?

PN1787

Yes, you say, "In 2012" - - -?‑‑‑Everyone in a senior management position understands why the two groups come together - it was to form a one-stop shop, to give our customers a central location for everything that could be done.

PN1788

Now, you understand that PrixCar acquired Toll Auto Logistics. That's what your evidence is? That's correct, isn't it?‑‑‑Yes.

PN1789

Toll Auto Logistics was a car carrier? You aware of that?‑‑‑Yes.

PN1790

It didn't do any truck moves?‑‑‑Sorry?

PN1791

It didn't do any truck moves at the time?‑‑‑I'm not sure - yes, it didn't do any truck moves at the time.

PN1792

Correct, and you're aware that Toll Auto Logistics arose because of Toll's acquisition of Finemore's? Are you aware of that?‑‑‑Yes.

PN1793

You are? You're aware that Finemore's didn't do any truck moves, only did car carrying? You're aware of that, aren't you?‑‑‑No, I'm not.

PN1794

You have no reason to dispute what I put to you?

PN1795

MR GIBIAN: Well, I object to that. I mean, he doesn't know what you're saying - - -

PN1796

MR BARONI: I'm just saying if he has any reason to dispute what I'm putting him - is that a yes or a no, Mr Cassar?

PN1797

MR GIBIAN: Well, if it doesn't know one way or the other it's not fair to ask the witness whether there's some basis to reject it.

*** ANTHONY CASSAR XXN MR BARONI

PN1798

MR BARONI: Well, he can answer it and say, "I don't know."

PN1799

SENIOR DEPUTY PRESIDENT HAMBERGER: Could you just answer the question? Do you know what the question is?‑‑‑Can you say it again, please?

PN1800

MR BARONI: You're aware that Finemore's only carried cars and did not carry trucks. Are you aware of that?‑‑‑To the best of my knowledge, yes.

PN1801

Now, it's also fair to say that at the time you joined PrixCar, PrixCar wasn't carrying trucks, was it?‑‑‑No, I don't believe that is the case.

PN1802

How much - so your evidence is it was carrying trucks?‑‑‑Yes, when I joined the business, they were, because they were doing work for Isuzu - - -

PN1803

Yes, and they were carrying them on the back of floats, weren't they?‑‑‑ - - - that I'm aware of and - I'm sorry?

PN1804

They were carrying them on the back of floats, weren't they?‑‑‑No, no, because there was also trade plate moves as well.

PN1805

What percentage of your business - let me rephrase that. The relocation of trucks by actually driving them in your business is very, very small, isn't it?‑‑‑Yes, I'd say so.

PN1806

Yes, less than 5 per cent?‑‑‑I don't have numbers in front of me.

PN1807

But you agree with me that the vast majority of what you do is transporting cars?‑‑‑Correct.

PN1808

Yes - - -?‑‑‑(Indistinct) it's not just transporting cars.

PN1809

Yes, that's right, but PrixCar is the processing part of it and then you've got PrixCar transport, which is the transport arm, correct?‑‑‑Yes.

PN1810

Yes, and before the acquisition of Toll Auto Logistics, the organisation had no involvement at all in the transportation of any form of vehicle. That's correct, isn't it?‑‑‑Yes, I think so, yes.

*** ANTHONY CASSAR XXN MR BARONI

PN1811

Yes. Now, so you would agree with me then that your organisation, PrixCar, is significantly different to what Truck Moves and other organisations like Truck Moves - the work they do. You'd agree with that, wouldn't you?‑‑‑Yes, the type of vehicles that we move are different to Truck Moves.

PN1812

But you're a transport company. You'd agree with that proposition?‑‑‑Yes, like Truck Moves.

PN1813

Truck Moves doesn't carry anything. You're aware of that, aren't you?‑‑‑So what's the definition of a transport company?

PN1814

Well, I get to ask the questions, you don't. It doesn't carry anything, does it?‑‑‑Sorry?

PN1815

Truck Moves has no trucks, does it? You're aware of that, aren't you? It doesn't own any trucks, does it?‑‑‑I'm not aware that - of their assets.

PN1816

I'm not asking you about their assets. I'm asking you are you aware whether they own any trucks or not?‑‑‑I'm not aware.

PN1817

Right, so you would have no reason to doubt what I'm putting to you, that they own no trucks?

PN1818

MR GIBIAN: Well, I'm not sure that's true. We saw one (indistinct). But I'm not sure - - -

PN1819

SENIOR DEPUTY PRESIDENT HAMBERGER: I'm not sure it's strictly true to say that. It's how you define a truck, I suppose.

PN1820

MR BARONI: Well, it does, your Honour, and I'm happy to rephrase the question.

PN1821

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN1822

MR BARONI: Absent my client, and others perhaps owning motor vehicles or a utility or the like, would you accept the proposition that they don't own any trucks that you would understand are used for the purposes of carrying vehicles?‑‑‑How would I know that?

*** ANTHONY CASSAR XXN MR BARONI

PN1823

I'm asking if you do.

PN1824

SENIOR DEPUTY PRESIDENT HAMBERGER: I think the implication is he doesn't know.

PN1825

MR BARONI: You don't know?‑‑‑(No audible reply)

PN1826

How many trucks does PrixCar own, roughly?‑‑‑Do you mean car carriers or what - - -

PN1827

No, I mean trucks?‑‑‑In excess of 150.

PN1828

150?‑‑‑In excess of that, yes.

PN1829

They're all prime movers?‑‑‑They're all different. They are different types of trucks.

PN1830

So you've got prime movers?‑‑‑One of them could be a one‑car carrier.

PN1831

Yes, a one‑car carrier?‑‑‑Right up to an eight‑car carrier.

PN1832

Tilt truck. A tilt tray?‑‑‑Yes.

PN1833

You would have some stingers in your fleet, wouldn't you?‑‑‑What is a stinger?

PN1834

You don't know what a stinger is?‑‑‑No.

PN1835

Seven‑car carrier?‑‑‑Yes, we have seven‑car carriers.

PN1836

So you've got those and you would probably have some four‑car carriers?‑‑‑Yes, we do have four‑car carriers.

PN1837

Five‑car carriers?‑‑‑Yes, we have multiple car carriers.

*** ANTHONY CASSAR XXN MR BARONI

PN1838

So you've got a significant fleet, as you've said, of trucks right around Australia to carry cars, don't you?‑‑‑That's correct.

PN1839

As you conceded before, that part of your business which relocates trucks by driving them is very, very small. Correct?‑‑‑The trade plate moves, you mean?

PN1840

Yes?‑‑‑Yes.

PN1841

Now, can I take you to paragraph 32 of your statement. Have you got that there?‑‑‑I do.

PN1842

You talk there about - you say:

PN1843

I note that there are many other factors that also require consideration. For example, there is no mention of other key road rules and regulations that must be complied with, such as the National Heavy Vehicle Law, fatigue management, roadworthiness, compliance and penalties that drivers might be exposed to if they have an accident.

PN1844

I think you're referring there to the statement of Mr Whitnall of 1 March 2017. You see that?‑‑‑Yes, I can see that.

PN1845

Now, you agree with me that in relation to the National Heavy Vehicle Law, if I'm driving a trade‑plated truck from the wharf to your facility, there would be no National Heavy Vehicle obligation that I would need to concern myself with?‑‑‑That's right. If they're all trade plate moves, yes.

PN1846

Correct. Are you aware - and tell me if you're not - that some 96 per cent of what Truck Moves does is trade‑plated moves? Are you aware of that?‑‑‑I'm not.

PN1847

So I'm putting it to you that that's correct. You would have no reason to doubt that if I'm putting it to you?

PN1848

MR GIBIAN: Well, the witness - - -

PN1849

SENIOR DEPUTY PRESIDENT HAMBERGER: Again, he said he doesn't know.

*** ANTHONY CASSAR XXN MR BARONI

PN1850

MR BARONI: Well, on the assumption that the moves they do are as I've put to you - that is, that 96 per cent of the moves are trade‑plated moves - then you would concede that in relation to Truck Moves, the National Heavy Vehicle Laws are irrelevant. You concede that for that 96 per cent?‑‑‑No, they're driving a truck.

PN1851

Your evidence a moment ago, you agreed with me that there was no relevance when you're driving the truck from the wharf to your facility?‑‑‑We pay per the award.

PN1852

Sorry?

PN1853

SENIOR DEPUTY PRESIDENT HAMBERGER: This isn't about the award.

PN1854

MR BARONI: I'm not asking about the award. I'm asking you about the National Heavy Vehicle Law which you say is relevant. What I'm putting to you is that Truck Moves - 96 per cent of its moves are trade‑plated moves, which you understand what they are?‑‑‑Yes.

PN1855

Yes. From the wharf to your facility. Do you accept that? I'm not asking you to agree with it. I'm just asking you to accept that proposition. Do you accept that?‑‑‑From the wharf to their facility, did you say?

PN1856

To your facility?‑‑‑So this - sorry - - -

PN1857

Your PrixCar facility.

PN1858

MR GIBIAN: I don't understand the question.

PN1859

MR BARONI: All right?‑‑‑Where are you getting 96 per cent from in regard to PrixCar?

PN1860

Listen to my question carefully, okay?‑‑‑Okay.

PN1861

Listen to my question carefully. I put to you a proposition that 96 per cent of what Truck Moves does is move trade‑plated trucks by driving them from the wharf to the PrixCar facility where you compliance the trucks?‑‑‑I don't know that.

*** ANTHONY CASSAR XXN MR BARONI

PN1862

I'm not asking you to know that. I'm asking you to assume the assumption I've put to you. So assume that assumption; 96 per cent of those moves are from the wharf to your facility. You would agree with me that the National Heavy Vehicle Law is irrelevant to those moves?‑‑‑Yes.

PN1863

Yes. You would agree with me that fatigue management is irrelevant to those moves?‑‑‑Under the - - -

PN1864

SENIOR DEPUTY PRESIDENT HAMBERGER: I'm just wondering if this is a very helpful question, because obviously Truck Moves don't move trucks from the wharf to PrixCar's processing centre.

PN1865

MR BARONI: They do.

PN1866

SENIOR DEPUTY PRESIDENT HAMBERGER: I don't know - - -

PN1867

MR BARONI: They do. That's my point.

PN1868

SENIOR DEPUTY PRESIDENT HAMBERGER: They do, do they?

PN1869

MR BARONI: They do. It's exactly what we're saying. The evidence was, your Honour, that 96 per cent of Truck Moves' movements are from the wharf to a compliance facility.

PN1870

MR GIBIAN: But not PrixCar's.

PN1871

SENIOR DEPUTY PRESIDENT HAMBERGER: But not PrixCar's. What we don't know is where they are or anything like that. I don't think we've got any evidence about where they are.

PN1872

MR GIBIAN: I don't know how the asserted 96 per cent fits with Mr Whitnall's evidence - 25 per cent of interstate moves.

PN1873

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. I didn't get the impression these were just drives from - - -

PN1874

MR GIBIAN: It just doesn't seem right.

*** ANTHONY CASSAR XXN MR BARONI

PN1875

SENIOR DEPUTY PRESIDENT HAMBERGER: You know, just from a wharf to some nearby facility.

PN1876

MR BARONI: Let me rephrase that.

PN1877

MR GIBIAN: That just isn't right.

PN1878

MR BARONI: I concede that. The point I'm making is that 96 per cent of the moves - - -

PN1879

MR GIBIAN: I mean, the premise though is that - - -

PN1880

SENIOR DEPUTY PRESIDENT HAMBERGER: No, let - - -

PN1881

MR GIBIAN: I'm sorry.

PN1882

MR BARONI: The evidence is this - and I withdraw my earlier question.

PN1883

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN1884

MR BARONI: The evidence is that 90 per cent of the moves they make are trade‑plated moves.

PN1885

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN1886

MR BARONI: That's what I'm saying.

PN1887

SENIOR DEPUTY PRESIDENT HAMBERGER: Perhaps just refer to trade‑plated moves then.

PN1888

MR GIBIAN: Can I just raise - the proposition that is being put to this witness by reference to assumptions he is being asked to make - that he doesn't know, understandably, enough the detail of Truck Moves' business - is that heavy vehicle laws and fatigue management are irrelevant - - -

*** ANTHONY CASSAR XXN MR BARONI

PN1889

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN1890

MR GIBIAN: - - - in circumstances where Mr Whitnall's evidence is 25 per cent of their moves are interstate.

PN1891

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN1892

MR GIBIAN: I don't think it's fair to this witness to put that proposition where Mr Whitnall's evidence is that 25 per cent of their trips are interstate.

PN1893

MR BARONI: I withdraw the question.

PN1894

Mr Cassar, a significant proportion of Truck Moves' work is from the wharf to a facility. Please accept that as an assumption. In those circumstances, I don't think your evidence will be any different that the National Heavy Vehicle Law does not apply.

PN1895

MR GIBIAN: It would depend where the facility is. I mean, it's - - -

PN1896

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, wouldn't it? That's why I'm a bit concerned with the question. I don't think you can give a yes or no answer to that, can you?

PN1897

MR BARONI: Well, your Honour, this witness is quite knowledgeable of what the type of trucks are that come off the wharf.

PN1898

SENIOR DEPUTY PRESIDENT HAMBERGER: No, but I'm not sure that the question allows a yes or no answer.

PN1899

MR BARONI: Yes, it does. It's asking whether he accepts it or not.

PN1900

MR GIBIAN: I mean, if the facility is in another state, then the answer might different than if it's five kilometres down the road.

PN1901

SENIOR DEPUTY PRESIDENT HAMBERGER: Can I ask, Mr Cassar, when would the National Heavy Vehicle rules not be applicable to moving a truck from a wharf? What is it that makes them not applicable? Do you know?‑‑‑You're asking me that question?

*** ANTHONY CASSAR XXN MR BARONI

PN1902

Yes, yes?‑‑‑There are probably a lot of variables there. Look, you know, I think it would be in regard to distance.

PN1903

Right?‑‑‑Regardless of, you know, what facility the vehicle is being moved to from a wharf, you couldn't have a driver operating for more than 12 hours or however long it might be without relevant breaks and things like that. You know, I'd say parts of the NHVR would have to apply.

PN1904

Do you know what it is that makes them apply? When do they apply and when do they not apply? Do you know?‑‑‑I think it would have to do with - I think the National Heavy Vehicle regulations - it's broken up into four parts.

PN1905

Yes?‑‑‑I think it would still apply to mass management - I could be wrong - and definitely fatigue. You couldn't have someone driving a heavy vehicle on the road for 20 hours without a break.

PN1906

Yes?‑‑‑To say fatigue management rules don't apply if they were driving interstate would be ludicrous.

PN1907

MR BARONI: Mr Cassar, how far is your facility from the dock where vehicles are located in Melbourne? 12 kilometres?‑‑‑Yes. Around about that, I'd say, yes.

PN1908

Okay. So let's use that example. Which provisions of the National Heavy Vehicle Laws would apply to your trade‑plated trucks being driven from the wharf to that facility in Melbourne?‑‑‑None.

PN1909

None. Tell me if I'm wrong: your facility in Sydney is about eight kilometres from the wharf - I withdraw that. In Port Kembla?‑‑‑Yes, it's around about that.

PN1910

Yes. So what National Heavy Vehicles Laws would apply to that move?‑‑‑Probably work hours and it would probably apply for Victoria, as well. They would apply.

PN1911

What would apply?‑‑‑Work hours, driver hours, because they would have to fill in - it doesn't matter that kind of move they're doing, they would still have to fill in a logbook.

*** ANTHONY CASSAR XXN MR BARONI

PN1912

For an eight‑kilometre journey?‑‑‑Well, if they've done eight eight‑kilometre journeys in a day, you can only do so many without - with breaks and things like that.

PN1913

I'm asking you from the wharf in Port Kembla to your facility which is eight kilometres away, what National Heavy Vehicle Laws would apply?‑‑‑Depending on how long a person has actually worked. If it was a one‑off, there would be none.

PN1914

Let's assume they work 10 hours?‑‑‑If they work 10 hours, there would be.

PN1915

What is that?‑‑‑Fatigue management.

PN1916

What do they have to have?‑‑‑It depends on what type of fatigue management they have; if they have basic or advanced.

PN1917

They've worked 10 hours. That's it?‑‑‑Yes.

PN1918

Tell me what breaks they have to have?‑‑‑They have to have the relevant breaks.

PN1919

What is it?‑‑‑It starts off with a 15‑minute break and then it's followed by the secondary break of a half‑an‑hour break.

PN1920

But the actual journey itself, there's no requirement to have any compliance with the National Heavy Vehicle Law, is there? That eight‑kilometre journey, there's nothing there to comply with. You agree with that?‑‑‑I'm not sure.

PN1921

You're not sure. You're sure about your evidence in Melbourne - - -

PN1922

COMMISSIONER LEE: I'm not sure what you're asking either. I am getting lost, because are we now back to an assumption that it's just the eight kilometres and that's all they're driving? They're not doing any other driving in the day. Is that what you're putting to him now?‑‑‑That's what I'm asking. I don't understand.

PN1923

MR BARONI: This witness has given evidence in a very broad fashion that the National Heavy Vehicle Laws apply to this work.

PN1924

COMMISSIONER LEE: I'm just asking you what is it that you're putting - - -

*** ANTHONY CASSAR XXN MR BARONI

PN1925

MR BARONI: Yes, and I'm trying to work out what he means by that.

PN1926

COMMISSIONER LEE: - - - because it's important that for me to understand the evidence, the witness is clear about what assumptions are being put at a particular point in time and I'm lost as to what assumptions are either implicit or explicit in terms of what you're putting to him, just so you're clear.

PN1927

MR BARONI: Yes. What I'm putting to you again, Mr Cassar - and you've answered in relation to Melbourne, so I'm not quite sure why your evidence would be any different - you are moving vehicles from the wharf at Port Kembla to your facility which is eight kilometres away and you say the National Heavy Vehicles Laws would apply. That's what you say in your evidence at 32, they apply generally. I'm asking you what applies to that kind of work?‑‑‑My statement was made based on the gamut of work that they do, not just trade plate moves.

PN1928

Are you going to answer my question?‑‑‑I really don't understand the question.

PN1929

You criticise Mr Whitnall in his evidence. You have read his 1 March statement, I assume, have you?‑‑‑I didn't criticise anyone.

PN1930

Well, I use that as a phrase not in a pejorative sense, but you criticise his evidence for lacking any mention - this is what you say in paragraph 32:

PN1931

There is no mention of other key road rules and regulations that must be complied with, such as National Heavy Vehicles Laws.

PN1932

You see that?‑‑‑Yes.

PN1933

So you criticise his evidence for not mentioning that and I'm asking you what it is that applies to the example I gave you?‑‑‑I don't know.

PN1934

You don't know.

PN1935

DEPUTY PRESIDENT SAMS: Mr Baroni, did I understand you earlier to say that Truck Moves takes its customer vehicle to PrixCar?

PN1936

MR BARONI: Yes.

*** ANTHONY CASSAR XXN MR BARONI

PN1937

DEPUTY PRESIDENT SAMS: What is the proportion of that work to PrixCar?

PN1938

MR BARONI: Excuse me, your Honour.

PN1939

MR GIBIAN: Can I just say the premise of all of these questions Mr Bradac's evidence on a previous occasion I asked him:

PN1940

"The heavy vehicle national law also applies to Truck Moves business, at least where its moving of trucks over I think 4.5 tonne in gross vehicle mass. Is that right?" "That is correct, yes."

PN1941

That was Mr Bradac's evidence on the previous occasion, and this witness is now being cross-examined on the basis that it doesn't apply to their business.

PN1942

SENIOR DEPUTY PRESIDENT HAMBERGER: I am a bit confused about - also it seems to be based on the assumption that all that Truck Moves does is move vehicles from the wharf to a local processing, vehicle processing centre, which wasn't the evidence.

PN1943

MR BARONI: The evidence is this, your Honour, that 96 per cent of the moves are off the wharf. That's the evidence.

PN1944

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, it might be off the wharf, but where they go to.

PN1945

MR GIBIAN: It's also the 25 per cent on interstate trips.

PN1946

MR BARONI: I was about to say that.

PN1947

DEPUTY PRESIDENT SAMS: Are you going to answer my question?

PN1948

MR BARONI: Yes, sorry, your Honour. I am not sure of the proportion, but the majority of those vehicles off the wharf either go to PrixCar or another facility which is next door to PrixCar called WWL, so it's within the same vicinity. I don't know the exact numbers. I can get those in due course for your Honour, but the majority of the work, if not 100 per cent of the work that comes off the wharf goes to those two facilities.

*** ANTHONY CASSAR XXN MR BARONI

PN1949

DEPUTY PRESIDENT SAMS: And you call those facilities clearance facilities, do you?

PN1950

MR BARONI: Yes. I understand it those facilities then fit out the trucks in part or in whole, then they register them, et cetera, and, your Honour, so that it's clear and there's no misconception of what I am talking about, the long distance journeys are not trucks that come off the wharf. You just couldn't deliver a truck off the wharf to Brisbane from Port Kembla. It just doesn't have the facilities to do it. So that's the distinction I am making and that's what I am putting to the witness.

PN1951

MR GIBIAN: I am not sure how 96 and 25 go together, but anyway, so it must be 125 per cent, but I mean Mr Bradac's evidence was that - I persist in my objection - was that the national heavy vehicle law applies and that they train their employees - that's PN439 and 440 of the transcript of 7 March of last year. That was the evidence in the proceedings, and now this witness from another company is being cross-examined on the basis that the heavy vehicle law doesn't apply. It's his evidence.

PN1952

MR BARONI: I am not sure what - - -

PN1953

MR GIBIAN: It's his evidence. His evidence is the same as Mr Bradac's evidence.

PN1954

MR BARONI: That doesn't disentitle me to cross-examine the witness. He has come here giving evidence.

PN1955

MR GIBIAN: To put a proposition to this witness which is inconsistent with what the general manager of Truck Moves has said in his evidence. I mean it's not fair to the witness.

PN1956

SENIOR DEPUTY PRESIDENT HAMBERGER: I am not quite sure what the point of this cross-examination is on this point, Mr Baroni. I am completely at a loss.

PN1957

MR BARONI: It goes to - - -

*** ANTHONY CASSAR XXN MR BARONI

PN1958

SENIOR DEPUTY PRESIDENT HAMBERGER: Because even if it was true that - I mean clearly just based on your evidence this is not all the work that Truck Moves do. It's not 96 per cent of the work either.

PN1959

MR BARONI: It's the majority of the work they do.

PN1960

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, 25 per cent is interstate.

PN1961

MR BARONI: But I said the majority, your Honour.

PN1962

MR GIBIAN: But a minority of the revenue apparently.

PN1963

SENIOR DEPUTY PRESIDENT HAMBERGER: I don't know. You are not making that distinction in the questions you're putting to the witness.

PN1964

MR BARONI: Can we deal with this in the absence of the witness. I think it is an important issue that needs to be dealt with.

PN1965

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, all right. Mr Cassar, could you just pop out of the room for a minute.

<THE WITNESS WITHDREW [11.35 AM]

PN1966

MR GIBIAN: I mean I can read on Mr Bradac's evidence.

PN1967

SENIOR DEPUTY PRESIDENT HAMBERGER: No, that's all right.

PN1968

MR GIBIAN: Senior Deputy Hamberger, you asked some questions and Mr Bradac's evidence was:

PN1969

Well, to move any truck, if I may, if you move any truck in Australia you fall under those regulations whether you're in the freight industry or not in the freight industry.

PN1970

That was the evidence that the general manager of Truck Moves gives.

PN1971

SENIOR DEPUTY PRESIDENT HAMBERGER: So what is it you're trying to establish?

*** ANTHONY CASSAR XXN MR BARONI

PN1972

MR BARONI: This witness is coming here - in fact both these witnesses, all the witnesses of the TWU are coming here and part of the evidence they want to give is that the national heavy vehicle laws apply to this kind of work.

PN1973

SENIOR DEPUTY PRESIDENT HAMBERGER: But isn't that what your own witness said?

PN1974

MR BARONI: I am not sure that that is what he said, because the question wasn't put to him in any specific terms, it was put to him on a general basis.

PN1975

SENIOR DEPUTY PRESIDENT HAMBERGER: Is it any truck? Any truck whether in the freight industry or not.

PN1976

MR GIBIAN: I said:

PN1977

"The heavy vehicle law also applies to Truck Moves business, at least where it's moving trucks over 4.5 tonnes?" "That's correct, yes." "And I assume Truck Moves trains its employees in respect of the obligations under the law and the regulations in that respect?" "Of course."

PN1978

Then your Honour the Senior Deputy President asked:

PN1979

"What proportion of trucks that you move would be in that category, over four and a half tonnes?"

PN1980

Mr Bradac said:

PN1981

"Well, to move any truck, if I may, if you move any truck in Australia you fall under those regulations whether you're in the freight industry or not in the freight industry. So any truck that we move must adhere to the fatigue management rules and regulations of the company is one of them." "But the specific heavy vehicle regulations?" "Yes. That encompasses fatigue management, that encompasses the log books and those sort of things for - so any vehicle over 12 tonne or higher TVM requires a log book whether you're in the freight industry or outside."

PN1982

I don't think he answered the question about the proportion.

PN1983

MR BARONI: Again, your Honour, I will stress this, the question was put in completely broad terms. The national heavy vehicle law has many, many different components. It has many, many different components. This witness is coming here saying that it applies holus bolus. I am trying to work out which parts of the national heavy vehicle law applies. For example the national heavy vehicle law deals with registration.

PN1984

SENIOR DEPUTY PRESIDENT HAMBERGER: But you haven't put specific questions like that.

PN1985

MR BARONI: Yes, I have, your Honour, with respect, I have. I have put questions about specific moves from the wharf to a facility of trade plated vehicles which are not registered. He knows exactly what I'm talking about, because he is the HR manager of a company that comes here and laments about its being undercut. It would be ludicrous to suggest that he doesn't know what I am talking about, but in any event I put to him very specific questions. I put to him very specific questions.

PN1986

SENIOR DEPUTY PRESIDENT HAMBERGER: Mr Baroni, I couldn't understand them.

PN1987

MR GIBIAN: The national heavy vehicle law is 700 pages long or something. I don't know how much progress we are going to make with asking this witness to identify which parts of the 700 pages apply, particularly in circumstances where as I say the evidence of Mr Bradac was that it applies and he identified fatigue management and other regulations that apply. They have not put evidence on trying to delineate parts which do and parts which don't, and I don't know that much profit can be made from asking this witness about it.

PN1988

SENIOR DEPUTY PRESIDENT HAMBERGER: Mr Baroni, you are entitled to ask questions as long as they're clear and people can understand what they're being asked, but you do have to think about whether there's any particular value - it's your decision - but whether there's any particular value in pursuing this line of questioning.

PN1989

MR BARONI: There is value, your Honour, but I am happy to move on. I have only got one more question on this.

PN1990

SENIOR DEPUTY PRESIDENT HAMBERGER: All right. So we might get Mr Cassar back.

<ANTHONY CASSAR, RECALLED [11.39 AM]

CROSS-EXAMINATION BY MR BARONI, CONTINUING [11.39 AM]

*** ANTHONY CASSAR XXN MR BARONI

PN1991

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, Mr Baroni.

PN1992

MR BARONI: Thank you, your Honour. Mr Cassar, I will put the question to you a different way. When a truck, an unregistered truck off the wharf, a trade plated truck has moved from the wharf to for example your facility - are you aware of WWL?‑‑‑Yes.

PN1993

They're next to your facility, close by?‑‑‑They're about three - they're about three or five kilometres away I'd say.

PN1994

So when a truck off the wharf is moved as I have described - do you understand the question I am putting to you so far?‑‑‑Yes.

PN1995

You would agree with me that in relation to the national heavy vehicle law there's no restraint requirements I don't need to worry about?‑‑‑From wharf to inland?

PN1996

To your facility or WWL?‑‑‑Not that I'm aware of, no.

PN1997

It's not carrying a load?‑‑‑Yes, not carrying a load.

PN1998

There's no issues of dimension?‑‑‑Okay.

PN1999

Is that a yes or no?‑‑‑Yes.

PN2000

There's no issues of mass?‑‑‑Yes.

PN2001

There is no real issue about fatigue either, is there?‑‑‑Not if it's the start of the day, no.

PN2002

And even if it's at the end of the day as long as you've had the requisite breaks that's about as far as it goes. You would agree with that?‑‑‑Yes.

PN2003

How many employees do you have?‑‑‑We have around about over 800.

PN2004

Is that in both divisions or one or the other?‑‑‑No, that's business total.

*** ANTHONY CASSAR XXN MR BARONI

PN2005

How many in the transport arm?‑‑‑It's just under half of that.

PN2006

The vast proportion of those would be drivers?‑‑‑Yes.

PN2007

What other type of roles do you fill; clerical?‑‑‑Yes, we have - we have planners, driver managers, we have customer staff, we have operations managers, et cetera.

PN2008

And the vast proportion of those as you said would be drivers, wouldn't they?‑‑‑Yes.

PN2009

When you offer them employment you appoint them to a particular grade, don't you?‑‑‑Yes.

PN2010

Why is that?‑‑‑Because there's a whole heap of training that's required for them to - yes, move up I suppose, grades.

PN2011

If you're hiring somebody to drive your seven car carrier - - -?‑‑‑Yes, they're also at different grades, yes.

PN2012

So you would appoint them at what grade, Grade 6 under the award?‑‑‑Yes, it's around about that I think.

PN2013

Whatever the applicable grade is for somebody driving a prime mover?‑‑‑Yes, whatever the applicable grade is.

PN2014

And why do you do that?‑‑‑Based on - it's based on the job that they're going to be doing I suppose, and to do that type of job I think you have to have the relevant skill and experience - - -

PN2015

That's because that's the predominant vehicle they are going to be driving, isn't it; that is they're going to be driving a prime mover with a trailer attached to it carrying seven cars. That's their job?‑‑‑Yes, that's right.

PN2016

So you agree with me it would be somewhat difficult to appoint anybody to any particular grade in relation to that part of the work that you do where you're simply collecting trucks off the wharf and delivering to your facility, because you would have a range of different trucks there at any one time. That's correct, isn't it?‑‑‑Yes, we could have a range of different trucks there at any one time.

*** ANTHONY CASSAR XXN MR BARONI

PN2017

So it would be very difficult to appoint somebody full-time doing that work to a particular grade, wouldn't it, because you don't know what trucks they are going to be driving?‑‑‑Can you repeat that question.

PN2018

It would be very difficult to appoint somebody to a particular grade, to specify a particular grade in those circumstances because you don't know what trucks you will be picking up at any time off the wharf; that's correct, isn't it?‑‑‑I'm not sure.

PN2019

You're not sure?‑‑‑No, I'm not sure.

PN2020

You're the HR manager?‑‑‑Yes.

PN2021

And you're not sure how you would appoint somebody for that particular work?‑‑‑I don't really understand your question.

PN2022

All right. You agree with me that there are varying types of trucks which are picked up off the wharf. Yes?‑‑‑Yes.

PN2023

They're small, they're big. Correct?‑‑‑Yes.

PN2024

Some may be prime movers, some may be destined to be rigid trucks. You'd agree with that?‑‑‑Yes.

PN2025

So there's a whole different combination of trucks that you would pick up at any one time?‑‑‑Yes.

PN2026

So if that's all the work you did - I withdraw that. And those trucks may fall under any particular category. Depending on the type of truck they are, it would fall under any - different grades within the transport award. You'd agree with that?‑‑‑Yes.

PN2027

So if you employed somebody to do nothing but drive trade‑plated trucks from the wharf, unregistered trucks from the wharf to your facility, it would be very difficult to appoint them to a particular grade under the award, because you don't know what truck they'd be picking up from day to day. That's correct, isn't it?‑‑‑Yes.

*** ANTHONY CASSAR XXN MR BARONI

PN2028

At paragraph 24 you talk about being under‑cut. Is that right?‑‑‑In regards to how we pay our drivers to move trucks, yes.

PN2029

And to move vehicles - cars, I should say?‑‑‑Yes.

PN2030

Because your enterprise agreement doesn't distinguish between the two, does it?‑‑‑No.

PN2031

And you didn't see a need to do that, did you?‑‑‑Not at that point in time, no.

PN2032

You don't see a need to do it at any point in time, do you?‑‑‑I'm not sure.

PN2033

You're not sure. Would it be beneficial to you if you had a separate classification in your enterprise agreement that dealt with nothing but drivers that relocated trucks by driving them?‑‑‑Yes.

PN2034

It would, and presumably that's because you would want a different rate applying to those drivers, wouldn't you - that is, a lower rate, wouldn't you?‑‑‑I'm not really sure if that's the case. We might decide as a business that based on what they are actually doing they get paid the same as three‑car, I'm not sure.

PN2035

But fundamentally you might decide that they should ‑ ‑ ‑?‑‑‑They could be even more. I'm really not sure.

PN2036

Yes, but it could be even less, couldn't it?‑‑‑Less than an eight‑car?

PN2037

Yes?‑‑‑Perhaps.

PN2038

I mean, you wouldn't pay a guy driving a truck off the wharf as I've described to you to your facility - you wouldn't pay them a grade 7 or a grade 6 or a grade 8, would you, if that's all they were doing? That would be ridiculous, wouldn't it?‑‑‑Yes.

PN2039

The rates that you pay your drivers are significantly above the award, aren't they?‑‑‑Yes.

*** ANTHONY CASSAR XXN MR BARONI

PN2040

Would it be fair to say they're about 25 to 30 per cent above the award?‑‑‑I haven't got the numbers in front of me. I think it was about 10 per cent, but I could be wrong.

PN2041

I put it to you they're quite higher than that, but in any event, that enterprise agreement - and tell me if you're not sure, but that enterprise agreement is effectively the Toll Enterprise Agreement which applied to the Toll Auto Logistics part of your business that you acquired at that time in 2012. That's correct, isn't it?‑‑‑Yes.

PN2042

And very little has changed in that agreement since that time. That's correct, isn't it?‑‑‑Yes.

PN2043

You were in essence stuck with that enterprise agreement at the time you acquired Toll Auto Logistics. That's correct, isn't it?‑‑‑Yes.

PN2044

Prior to that - that was Mr Gibian, not me, Mr Cassar.

PN2045

SENIOR DEPUTY PRESIDENT HAMBERGER: Is it okay now?

PN2046

MR BARONI: I apologise for the noise. I'm not sure where that came from. I'm not sure whether you answered my last question, but you were stuck with that enterprise agreement, weren't you?‑‑‑Yes.

PN2047

There was no point negotiating with the Transport Workers Union in terms of lowering the rates, were there - you'd never succeed in that, I should say. Is that correct?

PN2048

MR GIBIAN: I object to that.

PN2049

MR BARONI: He negotiated it.

PN2050

MR GIBIAN: He can ask what position the company put forward, I suppose, but as to what the outcome ‑ ‑ ‑

PN2051

MR BARONI: I withdraw the question.

PN2052

MR GIBIAN: ‑ ‑ ‑ of negotiations that didn't happen might be ‑ ‑ ‑

*** ANTHONY CASSAR XXN MR BARONI

PN2053

MR BARONI: I withdraw the question.

PN2054

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, he's withdrawn the question.

PN2055

MR BARONI: I withdraw the question. In 2016 when you concluded the enterprise agreement did you ask the TWU for a rate reduction?‑‑‑No.

PN2056

But you had a discussion with the TWU, didn't you, about that the rates you were paying your drivers are unsustainable in the industry. That's correct, isn't it?‑‑‑Yes.

PN2057

Isn't it possible that the fact that you've been lumbered with such high rates is the reason that you're not competitive in that particular part of the industry - I'll withdraw that. That you're not competitive in the part of the industry that my client operates in. That's one of the reasons, if not the majority of the reasons, or the substantive reason, why you can't compete in that industry. That's correct, isn't it?‑‑‑Yes.

PN2058

Your company would derive an extreme benefit if your competitors paid something closer to what you have to pay with your drivers. That's correct, isn't it?‑‑‑Can you repeat that?

PN2059

Yes. Your organisation would benefit greatly if your competitors - and I mean your competitors in that part of the industry that my client operates in - were put in a position where they have to pay something closer to what you are paying your drivers. That would help you, wouldn't it?‑‑‑It would help the business, or if we got a reduction in the rate that we done for that type of work as well.

PN2060

I didn't hear any of that. Can you repeat your answer?‑‑‑It would help.

PN2061

It would help, wouldn't it, because it would close the gap between the wages you have to pay and those that my clients and the like in that sector of the industry that my client operates in would have to pay. You agree with that, don't you?‑‑‑Can you repeat that?

PN2062

Yes. That would help your business, because it would close the gap between the wages that my client pays to its employees compared to what you have to pay your employees. That's correct, isn't it?‑‑‑Yes, I suppose.

*** ANTHONY CASSAR XXN MR BARONI

PN2063

It's not very easy for you to reach a separate agreement with the Transport Workers Union about that part of the business which involves simply relocating trucks by driving them, because the majority of your business is actually relocating vehicles on the back of a truck. That's correct, isn't it?

PN2064

MR GIBIAN: I object. This is asking about speculation about what ‑ ‑ ‑?‑‑‑I don't know that. I don't know that.

PN2065

SENIOR DEPUTY PRESIDENT HAMBERGER: See if he can answer it?‑‑‑I don't know.

PN2066

MR BARONI: Sorry?‑‑‑I don't know that.

PN2067

Have you asked them?‑‑‑No.

PN2068

You haven't asked. You negotiated the enterprise agreement. You were involved in the negotiations, weren't you?‑‑‑I was involved in them, yes.

PN2069

Yes, and it must follow that you agreed to everything that's contained in the enterprise agreement, including the rates of pay?‑‑‑Yes.

PN2070

So you were happy with them then?‑‑‑Yes.

PN2071

But you still want to come here and complain that you're being under‑cut?‑‑‑For that work.

PN2072

But why didn't you negotiate something better then?

PN2073

MR GIBIAN: I object to that.

PN2074

SENIOR DEPUTY PRESIDENT HAMBERGER: No, I don't think that's helpful.

PN2075

MR GIBIAN: I mean, I don't think he can be asked to speculate about ‑ ‑ ‑

PN2076

SENIOR DEPUTY PRESIDENT HAMBERGER: It's all right. Yes, I don't think that's helpful.

*** ANTHONY CASSAR XXN MR BARONI

PN2077

MR BARONI: With respect, your Honour, he's coming here on behalf of his employer saying he's being under‑cut.

PN2078

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN2079

MR BARONI: And he's putting into evidence an enterprise agreement which he's negotiated and now he's whingeing about it.

PN2080

SENIOR DEPUTY PRESIDENT HAMBERGER: He's not whingeing about the enterprise agreement.

PN2081

MR BARONI: I think he is ‑ ‑ ‑

PN2082

MR GIBIAN: No one's asking the award to be changed to the same as this enterprise agreement, but we do want truck moves and other Truck Moves and other businesses like it to comply with the award, to pay the rates in the award.

PN2083

SENIOR DEPUTY PRESIDENT HAMBERGER: I mean, to be honest, his personal opinion about this is going to not have any bearing on the ‑ ‑ ‑

PN2084

MR BARONI: He's the HR manager. He's not giving evidence ‑ ‑ ‑

PN2085

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. No, I understand, but I whether he likes his agreement, doesn't like his agreement can't possibly have any bearing on our decision.

PN2086

MR BARONI: You'd agree with me, Mr Cassar, that the tasks involved in performing the delivery of - I withdraw that - moving trucks off the wharf by driving to a facility like yours compared to the bulk of your drivers that move vehicles around on the back of trucks is significantly different, isn't it?‑‑‑Yes, there is some difference.

PN2087

It's significantly different, isn't it?‑‑‑Yes.

PN2088

Driving, for example, a prime mover with seven cars on a trailer attached to it would be significantly more difficult than driving an unbuilt truck off the wharf to your facility. You'd agree with that, wouldn't you?‑‑‑Yes.

*** ANTHONY CASSAR XXN MR BARONI

PN2089

Because all of those types of movements which I spoke about, that is, when you're carrying cars, involves the carrying of a load as compared to not carrying a load. That's correct, isn't it?‑‑‑Yes.

PN2090

So when you're carrying a load you'd have to have regard to ensuring that it was restrained. That's correct, isn't it?‑‑‑When we carry a load, yes, we have to ensure it's restrained.

PN2091

Yes, and you'd have to ensure that the vehicle configuration overall complies with the dimensions, dimension requirements of the national heavy vehicle laws. That's correct, isn't it?‑‑‑Yes.

PN2092

You have specially designed trailers for that purpose, don't you?‑‑‑We do have designed trailers.

PN2093

You'd have to ensure that - and this may not necessarily be applicable to carrying cars, but generally speaking, when you're carrying cars you'd need to ensure that the truck is not overloaded?‑‑‑Yes.

PN2094

You'd agree with me that driving a fully‑loaded prime mover, or even a fully‑loaded rigid vehicle, is significantly more dangerous and requires significantly more attention than driving a completely unloaded vehicle, unbuilt vehicle, from the wharf to your facility or WWL's?‑‑‑Yes.

PN2095

Braking distances, for example, would be one factor that you'd have to take into account as a driver?‑‑‑Can you repeat that?

PN2096

Braking distances would be one example of what you would have to have regard to when you're driving a fully‑loaded vehicle, compared to an unloaded vehicle?‑‑‑Yes.

PN2097

Can I take you to paragraph 40?‑‑‑What paragraph?

PN2098

40 of your statement?‑‑‑Yes.

PN2099

You'd agree with me that, for example, truck refuelling is hardly a skill in the transport industry?‑‑‑It's a - yes, it's hardly - it's not much of a skill, but it's, you know, something that could have risks associated with it.

*** ANTHONY CASSAR XXN MR BARONI

PN2100

Quite, I suppose, if you're silly enough to put petrol in a diesel tank. That's right, isn't it? That's one of the risks associated with it?‑‑‑Yes.

PN2101

Yes?‑‑‑Spillage, environmental risks, slips, trips, falls, all that kind of thing, yes.

PN2102

It would be the same if you owned a diesel car, your own personal car, and you put petrol in the diesel car rather than diesel. Same kind of risk?‑‑‑Yes.

PN2103

Monitoring temperature gauges would be hardly some significant skill that you would require when you're driving a truck. You'd agree with me with that, wouldn't you?‑‑‑If you knew where they were.

PN2104

Presumably you look. Is that correct? You know where they are because you look?‑‑‑Yes, if you know where they are.

PN2105

So once you've located the temperature gauge you just look at it?‑‑‑Yes.

PN2106

Not much of a skill there, is there?‑‑‑No.

PN2107

"Using mobile data and technology monitoring streets and choosing appropriate routes." Not much really of a skill there. Just like using your Navman. You'd agree with that?‑‑‑If you're - yes.

PN2108

Yes?‑‑‑If you're just moving from wharf to inland.

PN2109

Correct?‑‑‑Perhaps, yes.

PN2110

Manoeuvring the types of vehicles we've been talking about off the wharf to a facility such as yours would be significantly easier than manoeuvring an articulated vehicle. You'd agree with that?‑‑‑Yes.

PN2111

When I move a vehicle off the wharf, you'd agree with that essentially I jump in it, and I might put trade plates on there or I might affix a mudguard or the like, but essentially I jump in it, I drive it to the facility, to your facility or WWL's, and I leave it there. That's pretty much what happens, isn't it? That's correct?‑‑‑Yes.

*** ANTHONY CASSAR XXN MR BARONI

PN2112

But when your drivers carry cars or other trucks on the back of a float; that is, they're loaded onto a trailer, first they've got to load them. That's correct, isn't it?‑‑‑You load them, yes.

PN2113

Yes, then you've got to restrain them. That's correct, isn't it?‑‑‑Yes.

PN2114

Then you've got to jump in the vehicle and drive it the destination. That's correct, isn't it?‑‑‑Yes.

PN2115

And you're driving a fully‑loaded vehicle. Correct?‑‑‑In most instances, yes.

PN2116

Yes?‑‑‑Sometimes trailer capacity doesn't allow for that.

PN2117

Yes, and a moment ago you accepted the propositions I put to you, that that would be significantly more difficult and onerous than driving an empty vehicle or a vehicle off the wharf. Do you agree with that?‑‑‑Yes. In my opinion, yes.

PN2118

Then you get to the other end and you've got to unload it, don't you?‑‑‑I'm sorry?

PN2119

Then you get to the other end, to the destination, and you have to unload it, don't you?‑‑‑Yes.

PN2120

So your drivers would do the loading and the unloading, wouldn't they?‑‑‑Yes.

PN2121

Can I take you to paragraph 28? Have you got that there, Mr Cassar?‑‑‑I do.

PN2122

Whether the vehicle was old or new is simply a matter of simply - I withdraw that. It's simply a matter of familiarisation with the vehicle, isn't it?‑‑‑I'm not a truck driver.

PN2123

You've commented there that that's something you need to consider?‑‑‑Yes, you would.

PN2124

Yes, and what I'm putting to you is that it's simply a matter of familiarisation, isn't it?‑‑‑Yes.

*** ANTHONY CASSAR XXN MR BARONI

PN2125

You'd agree with me that it's very, very rare, if not, nowadays, non‑existent, that you would have a manual truck?‑‑‑That's not true.

PN2126

That's not true?‑‑‑No.

PN2127

Do you know the proportion of automatic trucks compared to manual trucks that are on the market?‑‑‑I don't.

PN2128

If I put to you that the vast proportion are automatic would you accept that?‑‑‑I'd say the majority of them are.

PN2129

The make and model of the vehicle again is a matter simply of familiarisation. That's correct, isn't it?‑‑‑Yes.

PN2130

The size of the vehicle, again, you agree with me, not a real issue when you're delivering vehicles from the wharf to your facility or WWL's facility? Nothing particularly onerous about the size of the vehicle because they're just cab chassis, aren't they?‑‑‑I'm sorry?

PN2131

They're just cab chassis, aren't they?‑‑‑Sorry, I'm having really ‑ ‑ ‑

PN2132

Sorry, can you hear me now, Mr Cassar?‑‑‑Yes, I can hear you.

PN2133

I put to you that there's nothing particularly onerous about the size of the vehicle because they're just cab chassis. Of course there are different sized vehicles. I'm not putting that they're not, but it's not a big deal, is it, when you're delivering from the wharf to the facility?‑‑‑I don't know.

PN2134

The route and distance travelled, again, when you're delivering off the wharf to your facility, hardly an issue?‑‑‑No, it's not much of an issue.

PN2135

When you're delivering cars - when your drivers deliver cars off the wharf to the facility, you'd agree with me that the roadworthiness of the vehicle is not an issue either?‑‑‑No, roadworthiness of vehicles are issues when we do deliveries. Things like non‑starters we try not to deliver.

PN2136

I'm talking about vehicles off the wharf?‑‑‑No, it's not an issue.

*** ANTHONY CASSAR XXN MR BARONI

PN2137

When you talk about non‑starters, what did you mean by that?‑‑‑Cars that won't start - because you said cars.

PN2138

I apologise, I meant trucks off the wharf. I apologise. Is your answer in relation to non‑starters simply to cars?‑‑‑It was. It was.

PN2139

Excuse me a moment, your Honour. So given the concessions you've made, or the matters that I put to you that you've agreed with, you'd agree with me that driving that kind of vehicle - and what I mean by that is a vehicle that is unregistered, unbuilt, with trade plates - is not even remotely close to being as hazardous as driving a fully‑loaded prime mover or a fully‑loaded rigid truck?‑‑‑No.

PN2140

You'd agree with that?‑‑‑Yes.

PN2141

So one assumes then that your evidence at paragraph 41 is not quite correct, is it?

PN2142

MR GIBIAN: I object to that?‑‑‑Everything that you're questioning me on is all on trade plate moves. Truck Moves just doesn't do only trade plate moves. I never knew the proportion of trade plate moves that they'd done. I based it on moves that - like the moves that we do as well.

PN2143

MR BARONI: So your evidence really is relevant to that part of Truck Moves' operation which doesn't do trade plate moves. Is that correct?‑‑‑Yes. Lots of it is, yes.

PN2144

No further questions, your Honour.

PN2145

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you. Mr Gibian?

RE-EXAMINATION BY MR GIBIAN [12.10 PM]

PN2146

MR GIBIAN: Thank you, Mr Cassar. Can I just ask you a couple of questions? You were asked questions about assigning a grade to employees or drivers who you employ in your business. Do you have drivers who - firstly, in the car‑carrying fleet, do your drivers drive different vehicles from time to time - that is, does one driver always drive the same type of vehicle or do they move around a bit?‑‑‑Look, they can move around, but generally they do the one type of vehicle.

*** ANTHONY CASSAR RXN MR GIBIAN

PN2147

In respect of trade plate moves, or moves where you have a driver drive the vehicle from one place to another, you have drivers who do that work?‑‑‑Yes, on the odd occasion.

PN2148

Are they drivers who otherwise drive car‑carrying vehicles, or vehicle‑carrying ‑ ‑ ‑?‑‑‑They can be, yes.

PN2149

They can be, or do you have some who are specifically employed to do that work, the vehicle relocation work?‑‑‑From the top of my head I can't - I can't remember from the top of my head at the moment. I'm not sure.

PN2150

Have you encountered any difficulty in assigning a grade to the work that they perform, a rate of pay?‑‑‑The rate of pay ‑ ‑ ‑

PN2151

MR BARONI: I object to the question, because the answer that the witness gave to the earlier question was that he doesn't know whether he's got anybody specifically employed to do just that work. So I'm not quite sure how the question follows.

PN2152

MR GIBIAN: I'll clarify it, if that's necessary.

PN2153

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, yes.

PN2154

MR GIBIAN: You have drivers who drive, either in the entirety of their work or from time to time, trade plate vehicles or other - relocate vehicles by driving from one location to another. Correct? Is that right?‑‑‑We have drivers that do that task, yes.

PN2155

Do you have any difficulty assigning a rate of pay under the award for the work that those drivers perform?‑‑‑No.

PN2156

How do you go about that?‑‑‑I think from recollection they just get their rate of pay based on what they're classified as, but I could be wrong. I couldn't tell you off the top of my head.

PN2157

You were also asked a question in relation to whether you would pay a driver undertaking a trade plate move of a prime mover at grades 6, 7 or 8. Do you recall being asked about that?‑‑‑Yes.

*** ANTHONY CASSAR RXN MR GIBIAN

PN2158

I think you said that you wouldn't pay someone to move a prime mover at grades 6, 7 or 8?‑‑‑For truck - yes.

PN2159

Is that because the vehicle would not be within a vehicle mentioned in those classifications?‑‑‑Can you repeat that?

PN2160

Is that because the movement of a prime mover on a trade plate basis would not be a vehicle type or combination that is referred to in grades 6, 7 or 8 in the award?‑‑‑Yes, I think so.

PN2161

If a vehicle was moved in that way, that is, by a driver driving it, which did fit within a vehicle type or combination that falls within grades 6, 7 or 8 in the award, is your understanding that you would have to pay that rate?‑‑‑Yes, I think so.

PN2162

You were asked some questions about the work involved in driving a car carrier. At PrixCar's facility can you just describe how a car carrier is loaded with the vehicles?‑‑‑Yes, sure. A driver will go and pick cars from the yard, normally in a despatch area, and load them up as per the manifest provided by planning.

PN2163

What's the manifest contain - or what's it record?‑‑‑Load information.

PN2164

I'm sorry?‑‑‑Yes, it's got load information on it.

PN2165

You were also asked to compare the work involved with driving a trade‑plated vehicle from the wharf compared to manoeuvring an articulated vehicle. Is your understanding that if a driver was driving an articulated vehicle rather than a prime mover without any trailer, that they would have to be paid a different classification grade under the award?‑‑‑Yes.

PN2166

Nothing further. Thank you, Mr Cassar.

PN2167

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you very much, Mr Cassar. You're excused. Thanks for your help.

<THE WITNESS WITHDREW [12.16 PM]

PN2168

SENIOR DEPUTY PRESIDENT HAMBERGER: We might just have a brief - who are you going to call next?

*** ANTHONY CASSAR RXN MR GIBIAN

PN2169

MR GIBIAN: We were just going to make an inquiry about Mr Haining, who ‑ ‑ ‑

PN2170

SENIOR DEPUTY PRESIDENT HAMBERGER: Look, we might just have a short ‑ ‑ ‑

PN2171

MR GIBIAN: If he's available we might deal with him.

PN2172

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay. We'll just have a five‑minute ‑ ‑ ‑

PN2173

MR GIBIAN: If not, we'll go to Mr DeClase.

PN2174

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay. We'll just have a five‑minute break.

SHORT ADJOURNMENT [12.16 PM]

RESUMED [12.28 PM]

PN2175

SENIOR DEPUTY PRESIDENT HAMBERGER: Mr Gibian, where are we?

PN2176

MR GIBIAN: The next witness will be Mr DeClase, who is in Melbourne.

PN2177

SENIOR DEPUTY PRESIDENT HAMBERGER: There he is, yes.

PN2178

MR GIBIAN: Someone will have to obtain him, yes.

PN2179

SENIOR DEPUTY PRESIDENT HAMBERGER: How are we going to go in terms of timing this? So we've got Mr Haining. When are we hoping to do him?

PN2180

MR GIBIAN: We're hoping Mr Haining will be available at around 2, and I think we would hope to interpose him, if Mr Baroni is still doing Mr DeClase.

PN2181

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. So we do Mr DeClase - okay, we can always break. We might need to break, depending how long we go with Mr DeClase.

PN2182

MR GIBIAN: Yes. Mr Haining can be available before 2, but obviously that goes into lunch a bit. Anyway, it would be best for us, I think, if we could interpose Mr Haining at around 2.

PN2183

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN2184

MR GIBIAN: Then there's Mr DeClase and ‑ ‑ ‑

PN2185

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay. We'll start with Mr DeClase. We're probably not going to get him finished then.

PN2186

MR GIBIAN: The timing is obviously mainly Mr Baroni's ‑ ‑ ‑

PN2187

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN2188

THE ASSOCIATE: Face the Full Bench and please state your full name and address.

PN2189

MR DECLASE: My name is Glen Francis DeClase of (address supplied).

<GLEN FRANCIS DECLASE, SWORN [12.29 PM]

EXAMINATION-IN-CHIEF BY MR GIBIAN [12.30 PM]

PN2190

MR GIBIAN: Thank you, Mr DeClase. My name's Mark Gibian. I'm appearing for the Transport Workers Union. Can you both see and hear me?‑‑‑Yes, I can hear you but I can't see you clearly. If you wave your hands maybe I see.

PN2191

It's probably to your benefit. I'm standing up at the lectern, if you can see that?‑‑‑Right. Yes, I can see you now.

PN2192

Mr DeClase, just for the record, are you able to repeat your full name?‑‑‑Glen Francis DeClase.

PN2193

And you've given your address just now as (address supplied) in Victoria?‑‑‑That's right, yes.

*** GLEN FRANCIS DECLASE XN MR GIBIAN

PN2194

You're presently employed as the human resources manager for a company called LEDified. Is that right?‑‑‑LEDified, yes.

PN2195

LEDified, you say. And previously you worked for PrixCar for a period of 13 years or so?‑‑‑Yes, 13 years.

PN2196

You've made a statement for the purposes of these proceedings before the Fair Work Commission. Do you have a copy of that with you?‑‑‑Yes, I've got a copy in front of me.

PN2197

I think it was dated and signed by you on 21 December of last year and it runs to some 40 paragraphs and nine pages plus an annexure. Correct?‑‑‑That's right, yes.

PN2198

Have you had an opportunity to read that through?‑‑‑Yes, I had it ‑ ‑ ‑

PN2199

Is it true and correct to the ‑ ‑ ‑?‑‑‑I read it all ‑ ‑ ‑

PN2200

Is there any corrections you would wish to make to it?‑‑‑Nothing at all, thanks.

PN2201

I tender the statement.

PN2202

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. Mr DeClase's statement is TWU18.

EXHIBIT #TWU18 STATEMENT OF GLEN FRANCIS DECLASE

PN2203

MR GIBIAN: Mr Baroni, who appears for Truck Moves and a couple of other companies, will now ask you some questions about your statement. Sorry, we've had this difficulty before. It did pass?‑‑‑Thank you.

CROSS-EXAMINATION BY MR BARONI [12.32 PM]

PN2204

MR BARONI: Hello, Mr DeClase, it's Mr Baroni here. How are you?‑‑‑Mr Baroni, pretty good.

PN2205

That's good. Can you hear me okay?‑‑‑I can hear you pretty well.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2206

Can you see me?‑‑‑I think you're the gentleman sitting down - or standing. I can't see you clearly.

PN2207

I'm standing up?‑‑‑All right. Yes, thanks.

PN2208

I'm more attractive than Mr Gibian?‑‑‑Okay, just like me.

PN2209

Mr DeClase, I'm just going to ask you some questions. Hopefully it won't take too long, and I apologise in advance if I do?‑‑‑Yes.

PN2210

Mr DeClase, you now work at LEDified. Is that correct?‑‑‑That's right. LEDified, yes.

PN2211

What do they do?‑‑‑They do LED lighting and solar.

PN2212

So they're not in the transport industry, I take it?‑‑‑They're not in the transport industry, no.

PN2213

Prior to the acquisition of Toll Auto Logistics, PrixCar didn't have a transport arm, did it?‑‑‑That's correct.

PN2214

So you would have had no dealings with the Transport Workers Union before that time, did you?‑‑‑No. No, I didn't.

PN2215

PrixCar didn't have any enterprise agreements with the Transport Workers Union before that time, did they?‑‑‑No, they didn't.

PN2216

But you'd negotiated other enterprise agreements for PrixCar before that?‑‑‑Yes, I did.

PN2217

They were with the Australian Manufacturers Union of Australia?‑‑‑Yes. The vehicle division, yes.

PN2218

Yes, and the relevant award was the Vehicle Manufacturing, Repair Services and Retail Award?‑‑‑That's correct, yes.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2219

At least in relation to the modern award, and then there was the 2002 award prior to that, wasn't there?‑‑‑That's it.

PN2220

Were you the predominant negotiator for the enterprise agreement with the Transport Workers Union?‑‑‑Yes. I led the team at that stage, yes.

PN2221

I'll come back to that in a moment. When PrixCar bought Toll Auto Logistics, at that time Toll Auto Logistics did not move trucks, did it?‑‑‑I am not 100 per cent sure. I mean, at the start we were moving vehicles when we merged together with Toll.

PN2222

You're aware that Toll Auto Logistics had acquired Finemore's some years ago, Finemore's Vehicle Carrying?‑‑‑Yes. That's prior to my time with them, yes.

PN2223

Yes, but you're aware of that, or you're not?‑‑‑No, not aware of that.

PN2224

It was around about 2015 that PrixCar started moving trucks. Is that correct?‑‑‑2015. I think a little bit before 2015, because we were moving small trucks at that stage as well before that.

PN2225

So a little bit before 2015?‑‑‑Yes. I think, yes.

PN2226

Because prior to that Toll Auto Logistics was really a vehicle carrier, a car carrier, wasn't it? It was a car carrying business?‑‑‑Yes, car carrying. That's right, yes.

PN2227

Toll still owns 50 per cent of PrixCar Transport, doesn't it? Are you aware of that?‑‑‑Yes. Yes ‑ ‑ ‑

PN2228

You've got two owners, haven't you?‑‑‑That's right, yes.

PN2229

I appreciate you don't work there anymore, but I'm assuming this is knowledge you had given your length of tenure with the company. Do you recall how many trucks you have within the business?‑‑‑I would ‑ ‑ ‑

PN2230

Trucks in the sense of - sorry, my apologies. Go on?‑‑‑I really couldn't answer that number, because I was not in the operational side, I was more in human resources. So I dealt more with the truck drivers and the contractors and all that stuff, but I didn't deal with trucks itself.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2231

Yes, and all of those truck drivers that you dealt with - I withdraw that. How many truck drivers did you employ, at least in the time that you were there?‑‑‑When we merged with Toll, or when we took over the Toll business, we took across around about 300-odd employees. That was all truck drivers, including the support structure, administration managers, operations managers, and all those people that we took across.

PN2232

Yes, but the majority of them were ‑ ‑ ‑?‑‑‑I can't give you a specific number.

PN2233

Sorry, Mr DeClase. I cut you off there, sorry?‑‑‑No, that's okay.

PN2234

The majority of those employees that came across from Toll Auto Logistics were truck drivers, weren't they?‑‑‑Yes. They would have be most truck drivers, yes.

PN2235

Their role was to ‑ ‑ ‑?‑‑‑Sorry, you're breaking up. I can't hear you.

PN2236

Their role was to drive trucks loaded with vehicles, weren't they? We're just having some technical difficulty, Mr DeClase, sorry. Did you hear my last question?‑‑‑No, not really.

PN2237

SENIOR DEPUTY PRESIDENT HAMBERGER: Give it another couple of minutes, or we might just have to adjourn and see if we can get someone to have a look at it during the lunch break. Mr DeClase, it's possible - I'm not saying your fault, but it might be if you're moving over the wire. It's apparently your microphone that's - we think it's the microphone that's creating the noise. It's possible if you're moving over the wire that might be ‑ ‑ ‑?‑‑‑I'm not touching anything at all.

PN2238

Okay. I don't want to blame you unfairly?‑‑‑(Indistinct reply)

PN2239

Let's just keep on - it seems all right at the moment?‑‑‑Yes.

PN2240

Otherwise we'll have to get someone to ‑ ‑ ‑

PN2241

MR BARONI: Thank you, your Honour. Sorry, Mr DeClase, can you hear me okay?‑‑‑Yes, I can hear you now.

PN2242

Can you move a little bit closer to the microphone, because we can't hear you.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2243

SENIOR DEPUTY PRESIDENT HAMBERGER: That's true?‑‑‑There's some wire under here and I don't want to touch it.

PN2244

Yes?‑‑‑But I'll try as possible - yes. That's better, yes.

PN2245

MR BARONI: That's it. Hang on for the ride, Mr DeClase?‑‑‑Okay.

PN2246

MR GIBIAN: Is the microphone towards him?

PN2247

MR BARONI: Perhaps if you move the microphone towards you, that might make it a little bit easier?‑‑‑Is that better?

PN2248

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN2249

MR BARONI: That's good. Thank you. I asked you did the majority of those drivers - sorry, I withdraw that. The majority of those employees were drivers, weren't they, that came across from Toll?‑‑‑Yes, that's right. Yes, contractors and drivers, yes.

PN2250

The drivers, they were all employed to carry vehicles on the back of trucks. That's correct, isn't it?‑‑‑That's right, yes.

PN2251

The types of trucks they were driving were car carriers?‑‑‑Car carriers, yes. B‑doubles, yes.

PN2252

There was B‑doubles, so that was double‑articulated. Is that what that means?‑‑‑Yes, that's right.

PN2253

So two trailers being towed by a prime mover. That's correct?‑‑‑Yes, that's it.

PN2254

You also had semi‑trailers, that is, a prime mover towing a single trailer?‑‑‑Yes. We had that, yes.

PN2255

You had some small, rigid trucks that would carry trucks on the tray?‑‑‑Just one truck, is it? What are you saying? I don't ‑ ‑ ‑

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2256

No, and you had smaller trucks which would just simply carry cars on their tray rather than ‑ ‑ ‑?‑‑‑Yes.

PN2257

All of those employees that you had were allocated a particular grade under the transport award. Do you recall that?‑‑‑Yes, that's right.

PN2258

That was based on the vehicle that they were driving. Correct?‑‑‑That's right, yes.

PN2259

Are you aware of my client, what they do?‑‑‑My knowledge is that your client takes a truck from one location to another location and drops it there and returns back. That's my understanding.

PN2260

Yes, and are you aware that the majority of the work that it does is delivering unregistered trucks? Are you aware of that?‑‑‑Yes.

PN2261

The majority of the work it does is delivering unregistered trucks from the wharf to a facility such as PrixCars. Are you aware of that?‑‑‑No. Are you saying that your client delivers trucks to PrixCar? Is that what you're saying?

PN2262

It does some, but I said they deliver ‑ ‑ ‑?‑‑‑I'm sorry, I never knew about that.

PN2263

So you weren't aware that they delivered trucks off the wharf to a facility such as yours?‑‑‑I knew that they were delivering trucks for some other clients, but not to PrixCar.

PN2264

Are you aware of WWL?‑‑‑Yes. WWL, yes.

PN2265

They deliver trucks off the wharf to that facility. Were you aware of that?‑‑‑I'm not aware of that, but WWL is not PrixCar.

PN2266

What did you think Truck Moves did, sir?‑‑‑As I stated earlier, I thought Truck Moves would move a truck from one location to a customer on the other end, drop the truck and come back ‑ ‑ ‑

PN2267

Yes, and did you understand those trucks to be registered or unregistered?‑‑‑My understanding is they would have trade plates on them.

PN2268

Yes?‑‑‑I never heard that last question.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2269

Did you understand that those trucks were - the majority of those truck movements were off the wharf?‑‑‑No, not really.

PN2270

You didn't know that?‑‑‑No.

PN2271

So are you surprised to ‑ ‑ ‑?‑‑‑My ‑ ‑ ‑

PN2272

Sorry?‑‑‑Sorry, sir. You go. I'm sorry, I cut you off.

PN2273

Yes, sorry, Mr DeClase. Are you surprised to know that the majority of their work is off the wharf with cab chassis, driving cab chassis?‑‑‑No, not surprised, because that's what I was told Truck Moves do. They move trucks from one location to a customer, drop it there and they come back - the driver comes back.

PN2274

Did you understand that to be built trucks or cab chassis only?‑‑‑Cab chassis, yes. That's my understanding.

PN2275

But you weren't sure whether that was off the wharf. You didn't know that?‑‑‑I'm not sure, no.

PN2276

How far is your PrixCar facility from the wharf in Melbourne in distance, roughly?‑‑‑Just over the West Gate Bridge, so I would say a maximum about eight to 10 kilometres.

PN2277

What about the facility in Port Kembla?‑‑‑In Port Kembla.

PN2278

How far is that from the wharf?‑‑‑From the wharf. I'm just trying to think, because I've been out of the company for nearly two and a half years, and the Port Kembla facility only opened after I left. So I'm not sure where the trucks come from. I can't really comment, but I know they were delivered to Minto. That's where they used to go first.

PN2279

Before?‑‑‑Yes, before I left.

PN2280

Because your facility was at Minto, wasn't it?‑‑‑It was at Minto before, yes.

PN2281

But in the early days, that is, way before you left?‑‑‑Yes.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2282

Then trucks started being delivered to Port Kembla. That's correct, isn't it?‑‑‑Yes. I think that that happened in late 2016. By that time I'd already left.

PN2283

Then you opened up a facility in Port Kembla. Do you remember?‑‑‑Yes, they opened a new facility in Port Kembla.

PN2284

Do you recall - I withdraw that. When you bought the business of Toll Auto Logistics I think you've said in your statement that it was a transmission business. Is that correct?‑‑‑That's right, yes.

PN2285

So therefore you were stuck with the enterprise agreement that applied to those drivers from Toll?‑‑‑That's right, yes.

PN2286

They had significantly higher wages than the transport award?‑‑‑That would be right, yes.

PN2287

That was as problem for your company at the time?‑‑‑We were in good faith when we took over those employees. We told them that we would maintain their current EBA that was in place and we were looking at negotiating it when it expired.

PN2288

When you negotiated the 2016 agreement ‑ ‑ ‑?‑‑‑Yes.

PN2289

In fact, let me withdraw that. Did you negotiate one before that with the Transport Workers Union?‑‑‑I'm just trying to think?‑‑‑Yes, I think I did one.

PN2290

That was pretty much ‑ ‑ ‑?‑‑‑That would have been the 2013, wasn't it?

PN2291

Yes, something like that, I think?‑‑‑Yes, that's right.

PN2292

The terms of that enterprise agreement were very much the same, if not identical, to the previous Toll enterprise agreement that you inherited. That's correct?‑‑‑It was pretty much similar, but we made a few changes, especially from a business point of view.

PN2293

At that time you weren't moving - you weren't relocating trucks from the wharf to, for example, your facility, driving them?‑‑‑At that stage I would say we were starting to move trucks, around about 2014, 15, yes.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2294

You found that you weren't competitive in the industry at that time because of the rates that you had to pay?‑‑‑That's exactly correct, yes.

PN2295

Notwithstanding that, you negotiated an enterprise agreement with the Transport Workers Union?‑‑‑Yes.

PN2296

Did you ask them for a rate decrease?‑‑‑We always ask for a rate decrease whenever I negotiate with anybody.

PN2297

And the answer's no, I presume?‑‑‑You asked me whether I asked for a rate decrease?

PN2298

Yes?‑‑‑Yes, I did ask for a rate decrease. Yes, I did, when I negotiated - yes, I did.

PN2299

Yes, and the Transport Workers Union said no?‑‑‑We worked out a win-win agreement with the Transport Workers Union. So we got a lot of other benefits in that instance.

PN2300

What were some of those benefits, do you recall?‑‑‑Yes. I remember they had a whole list of customs and practices which were - I mean, it was in the EBA that was with Toll, and we managed to knock quite a few of them out of the system. I think we managed to also freeze the superannuation charges that they wanted to - I think they wanted something like 15 per cent. We managed to get it back to the normal 12.5, I think, or 12 per cent.

PN2301

15 per cent? Crazy stuff, wasn't it?‑‑‑Yes, we got a lot of savings in stuff that we wanted to do.

PN2302

But it wasn't enough to make you competitive in the part of the industry that you're complaining about now, was it?‑‑‑That's right, it wasn't, no.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2303

I think you said in your statement somewhere that - if you'd just bear with me. At paragraph 28 you said that you were shocked when you were advised by the Transport Workers Union that Truck Moves was in fact found to be award‑free by the Federal Court. Do you remember that?‑‑‑Yes. Just to reiterate, when we were negotiating the last EBA one of the things that I told the TWU is that we wanted to play on a level playing field with all the people that were working so that we - we were paying good rates at that time, and that's the time I was advised by TWU that Truck Moves were award‑free, yes.

PN2304

Do you remember when that was, roughly, when that time was?‑‑‑I would say during our negotiations for the 2016 agreement.

PN2305

Were you aware that the Transport Workers Union was of the view, at least some time earlier than that, that a driver of Truck Moves was covered by a different award?‑‑‑No.

PN2306

MR GIBIAN: I object to that - well, he said he wasn't aware.

PN2307

MR BARONI: Do you know Mr Biagani?‑‑‑Pardon?

PN2308

Do you know Mr Biagani?

PN2309

MR GIBIAN: Biagini.

PN2310

MR BARONI: Biagini, sorry, my apologies, from the Transport Workers Union. Have you ever met him?‑‑‑No. My dealings were with Therese Wharton.

PN2311

So one of the complaints you had with the Transport Workers Union was, and correct me if I'm wrong here, that a new market that you wanted to get into was in the relocation of vehicles off the wharf, trucks off the wharf. Is that correct?‑‑‑It wasn't a new market. We were already - we had already started delivering trucks from the wharf to our customers, yes.

PN2312

Yes, but in the last 12 months you had commenced in that section of the market. Is that correct?‑‑‑I didn't understand the ‑ ‑ ‑

PN2313

Sorry?‑‑‑In the last 12 months - what period are you talking about?

PN2314

So in about 2014 you commenced moving trucks off the wharf by driving them to your facility?‑‑‑Yes, that's right.

PN2315

In the course of the discussions that you had, or the negotiations with the Transport Workers Union, you told them that you were finding it very difficult to compete in that market. Is that correct?‑‑‑That's right, yes.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2316

And you wanted them to do something about that. Is that correct?‑‑‑We wanted a level playing field.

PN2317

That meant putting your competitors in a position where they'd be as close as possible to what you had to pay your drivers. That's correct, isn't it?‑‑‑No, I didn't ask them to raise any rates for Truck Moves or anything like that, but we wanted a level playing field, and we found that Truck Moves and people like that organisation was really undercutting our business, because our truck drivers were telling us we're not getting jobs because we were too damn expensive compared to Truck Moves.

PN2318

In your mind what was one of the ways that that undercutting could be stopped?‑‑‑The undercutting - number 1 is - this is my knowledge of things, and I'm going to say it the way that I ‑ ‑ ‑

PN2319

Sure?‑‑‑ ‑ ‑ ‑ saw it at that time, is that number 1, we would get our truck drivers - say we move a truck from Melbourne to Brisbane, we would drive across there, we would fly the person back, we would get them accommodation, we would make sure that he had a taxi dropping him off and picking him up, taking him back home. Apparently, I was told, Truck Moves don't do that kind of stuff and they cut their costs on that. I don't know exactly how you guys did it. The other thing was you were paying different rates for the drivers that move these trucks and also different rates for while they stayed away and all that stuff. That's my understanding of things.

PN2320

So if the rates and the terms and conditions were as close as possible to the rates and terms and conditions that you had to pay your drivers, that would be a benefit for your organisation, wouldn't it?‑‑‑We wanted a level playing field.

PN2321

Yes?‑‑‑I mean, we couldn't compete with people that were not paying the same level as what we were paying.

PN2322

Is that why you're giving evidence today, to try and get ‑ ‑ ‑?‑‑‑Beg your pardon?

PN2323

‑ ‑ ‑ that level playing field?‑‑‑We haven't got that level playing field as yet, because when I negotiated the EBA and I finished it, nothing had been changed at that stage.

PN2324

But is that why you're giving evidence today?

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2325

MR GIBIAN: I object to that. The witness doesn't work for PrixCar.

PN2326

MR BARONI: Why is he here?

PN2327

MR GIBIAN: He's giving evidence because of his experience and he was asked to give evidence about what he knows by the TWU.

PN2328

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, I agree.

PN2329

MR GIBIAN: It's not proper to suggest there's some improper motive of coming to give evidence before the Commission.

PN2330

MR BARONI: I'm not suggesting it's improper, I'm just trying to work out why he's here.

PN2331

SENIOR DEPUTY PRESIDENT HAMBERGER: Presumably he was asked to give evidence.

PN2332

MR GIBIAN: I mean, frankly, this whole line of questioning is objectionable. The TWU has consistently said that these - well, initially these people were covered by the award, consistent with an older court decision to that effect. When the Federal Court decided the contrary we've brought the matter to the Commission to vary the award. There's nothing improper in that.

PN2333

MR BARONI: Nobody's suggested there is, your Honour. With the greatest respect, when a witness comes here and says, "Now we're being undercut ‑ ‑ ‑"

PN2334

MR GIBIAN: Well, I mean ‑ ‑ ‑

PN2335

SENIOR DEPUTY PRESIDENT HAMBERGER: No, I agree. It's part of the evidence, but I think if you can move on.

PN2336

MR BARONI: Yes, your Honour.

PN2337

MR GIBIAN: We're not some stalking horse for PrixCar or something, which seems to be what's suggested.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2338

MR BARONI: You would agree with me that when you're moving vehicles off the wharf to your facility, and let's say your driver does that, your employee does that, the driver wouldn't need to comply with any load restraint provisions of the national heavy vehicle law?‑‑‑That's right.

PN2339

They wouldn't have to comply with any dimension or mass provisions of the national heavy vehicle law?‑‑‑I can't comment on that. I'm not that much into operations. What I know, I know that our drivers, they had a set procedure that when they picked up a vehicle they had to check the vehicle before they took it and load it onto the truck. There were loading procedures, the way that they fasten the vehicles and they set it down, making sure that there was nothing protruding out that will cause damage on the road. Those are the kind of things that I know, but I don't know what the mass vehicle - I can't comment on that, really.

PN2340

That answer you just gave then is in relation to your drivers that were carrying cars or small trucks on the back of - on a trailer?‑‑‑Yes.

PN2341

Was that what it's in relation to?‑‑‑Yes, that's right. That's right, yes.

PN2342

So none of those things you just spoke about would apply to an employee picking up a truck from the wharf, driving it to your facility, would it? They wouldn't have to do that?‑‑‑Are you talking about just a standard brand new truck? Is that what you're saying?

PN2343

Yes, off the wharf, a cab chassis?‑‑‑Okay. So if you pick a cab chassis off the wharf we would first of all check to see that there's no damage on the vehicle once it's delivered. We pick it up. The second thing is to see that everything was fastened down so there is no loose bits flying around when he got onto the road, make sure that oil, water, everything was checked before they drove the vehicle away from the wharf.

PN2344

But none of the things you spoke about a driver carrying cars or other vehicles on the back of a trailer would apply to that employee, would it?‑‑‑No, because he's not carrying any goods or any vehicle on top of that, yes.

PN2345

So you would agree with me that the job itself, that is, the task of moving that vehicle from the wharf to your facility, is a very simple task, isn't it?‑‑‑It depends on - except for the loading and the unloading of the vehicle, everything else has got to be done - what a normal truck driver would do.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2346

You'd agree with me that driving a fully‑loaded semi‑trailer would require significantly more skill than driving a cab chassis from the wharf to your facility, wouldn't it?‑‑‑Really, it would be unwise of me to comment on that, because I'm more into the human resources side of things. So I'm not really familiar with the process itself of - I know the basic process that is required by loading a car and unloading a car, making sure it's not damaged, making sure it's fastened down completely, but all the rest would be the same. I mean, you've got to check oil, water, all that stuff, in your truck before you move from the wharf.

PN2347

But checking oil and water compared to making sure that you restrain your load correctly are two very different tasks, do you agree?‑‑‑Yes, I would agree with that, but at the same time, if I was taking a new truck from the wharf to any other location I've got to make sure that there are no loose bits flying around, everything is secured down properly, before I drive that vehicle away.

PN2348

There's no trailer on it, is there?‑‑‑There's no trailer on it, yes.

PN2349

It's just a cab chassis so what do you need to restrain?‑‑‑First of all, number 1, it's a brand new vehicle that's arrived on a ship. You've got to make sure that there's enough oil in it, water in it, make sure that all the hub caps, everything that's there that's supposed to be on it, is secured properly, the mirrors are put in the right direction, because I've seen trucks that have come in with the mirrors folded in. He's got to make sure that is adjusted properly before he jumps in the truck and drives out on the road.

PN2350

But with that ‑ ‑ ‑?‑‑‑I don't know - sorry.

PN2351

Sorry. That would be something obvious, wouldn't it?‑‑‑Yes ‑ ‑ ‑

PN2352

It's not a special task or skill, is it?‑‑‑No, it's not a special task, but that's a requirement of a driver. I mean, just being nave about the whole thing, if I went and picked up a truck I wouldn't know that I had to check that kind of stuff, right, and put a trade plate and all that stuff. Naturally those guys follow a process that's required to be done before they drive out of the wharf.

PN2353

But essentially you would agree with me that that task is significantly less onerous and less complicated ‑ ‑ ‑

PN2354

MR GIBIAN: I don't know that - if the witness wants to be asked about what he understands the tasks that are done - my learned friend's trying to ask opinion value‑loaded questions about the merit or difficulty or onerousness of a particular task. I think he's straying beyond what this witness can say.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2355

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. We might actually ‑ ‑ ‑

PN2356

MR GIBIAN: I mean, to make some sort of overall judgment about - I mean, that's ultimately ‑ ‑ ‑

PN2357

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN2358

MR GIBIAN: I suppose - I guess Truck Moves is asking the Commission to make some judgment on that.

PN2359

SENIOR DEPUTY PRESIDENT HAMBERGER: There are work value considerations, clearly, in this.

PN2360

MR GIBIAN: Maybe.

PN2361

SENIOR DEPUTY PRESIDENT HAMBERGER: Arguably.

PN2362

MR BARONI: My friend doesn't agree. Obviously we say there are work value considerations in this.

PN2363

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN2364

MR BARONI: This is an important part of the case.

PN2365

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, okay, but whether this witness can add a great deal is another matter.

PN2366

MR GIBIAN: It's more just asking some sort of global question about it. It's not ‑ ‑ ‑

PN2367

SENIOR DEPUTY PRESIDENT HAMBERGER: Anyway, we might adjourn for lunch, so adjourn till 2 o'clock. Just two things. Mr DeClase, can you be available in Melbourne, because we're going to actually do another witness who is only available at 2 o'clock. Hopefully it won't take too long and then we'll resume with you. Is that okay? Will you be available?‑‑‑That's okay. How long will it take, just so I can get back and cancel some meetings.

PN2368

MR BARONI: Mr DeClase, not long. Not long when we come back. Probably 15 minutes, for my part.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2369

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, so if you can be back at 2. It sounds like it won't be much after 2 that we'd resume with Dr DeClase. So he's available at 2 o'clock?

PN2370

MS CARR: Both of them, your Honour.

PN2371

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay. We'll work it out. We'll adjourn until 2. We'll do Mr Haining at 2 and then we'll work out when we do Mr Mealin and we might just see if we can fix up the speaker problem in the meantime.

PN2372

MR GIBIAN: As I indicated yesterday, Ms Carr will deal with the witnesses after lunch today.

PN2373

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, okay. Thank you, Mr Gibian.

PN2374

MR GIBIAN: Thank you.

<THE WITNESS WITHDREW [1.03 PM]

LUNCHEON ADJOURNMENT [1.03 PM]

RESUMED [2.03 PM]

<GLEN FRANCIS DECLASE, RECALLED [2.03 PM]

CROSS-EXAMINATION BY MR BARONI, CONTINUING [2.03 PM]

PN2375

MR BARONI: Can you hear me, Mr DeClase?‑‑‑Yes, I can.

PN2376

It's Mr Baroni again?‑‑‑Yes.

PN2377

I only have a few more questions for you, Mr DeClase, so I hope I won't take too long. You remember I asked you a question earlier in relation to paragraph 28 of your statement where you said in there that you were shocked when the TWU told you about my client being award‑free. Do you remember that?‑‑‑Yes, yes, yes.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2378

You had only assumed that companies in the vehicle relocation industry such as my client were covered by the award, hadn't you? You didn't know that for a fact?‑‑‑No, no, I didn't know that for a fact.

PN2379

Can I take you to paragraph 36, please, of your statement. Do you have that?‑‑‑Yes.

PN2380

You set out there some matters that you say a driver must have regard to. You see that?‑‑‑That's right, yes.

PN2381

If I were to put to you that my client and other companies in the vehicle relocation industry don't require drivers to do that, would you disagree with that?‑‑‑They don't require drivers to do that. Is that what you're saying?

PN2382

Yes?‑‑‑I don't think that's safe.

PN2383

Well, that's not what I asked you. What I'm asking you is would you disagree with that proposition?

PN2384

MS CARR: Objection. He doesn't know. I mean, he is putting to him a proposition, but the witness doesn't know whether or not that is a requirement of Truck Moves.

PN2385

SENIOR DEPUTY PRESIDENT HAMBERGER: He has given evidence - - -

PN2386

MR BARONI: I think Ms Carr has just given an answer.

PN2387

SENIOR DEPUTY PRESIDENT HAMBERGER: He makes the comment that the vehicles must be completely checked by the driver before being driven onto the road, so that presumably was in the context of Truck Moves vehicles, wasn't it?

PN2388

MR BARONI: That's what I'm exploring.

PN2389

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN2390

MR BARONI: I don't know. He is making a blanket statement there that it's a must.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2391

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. You can ask the question.

PN2392

MR BARONI: Yes.

PN2393

Do you understand the question I'm asking you, Mr DeClase?‑‑‑Can you just repeat that so I get that clear.

PN2394

Yes. What I'm putting to you is that in relation to paragraph 36 where you say the driver must do those matters you list there, I'm putting to you that that is not correct?‑‑‑I mean this, according to - this is what we do at PrixCar.

PN2395

Yes?‑‑‑I haven't given you the company detail of exactly what takes place, but I would have assumed that before you take a vehicle out on the road, especially a brand new vehicle that has just landed, that you will look for these things; that there are no loose items that will fly off on the road, the tyres have got the right pressure. You monitor the fuel levels. As I stated previously, if the car has just come off the ship, then ensure that all the key safety functions on the vehicle are located, such as hazard lights. I mean, if I jump into a brand new car, I will be looking to see where the hazard lights and where to turn on - where you turn the car on and all that stuff. I mean, that's just my opinion.

PN2396

Yes. The thrust of your evidence is that that's what you think should happen?‑‑‑Yes.

PN2397

But you're not sure?‑‑‑No, no, that's what we basically do in the PrixCar. That's part of our processes.

PN2398

Yes?‑‑‑I haven't given you complete detail of that.

PN2399

I'm not asking for the complete detail, but that's all you talk about is PrixCar?‑‑‑That's right, yes.

PN2400

Yes?‑‑‑Yes, that's right.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2401

If I told you, for example, that vehicles off the wharf already had some fuel in there, what would you say about that - in them?‑‑‑I'm not sure on that one. The reason I'm saying - the reason behind that is because I know that in our VPC operation, which is not to do with the transport, with the brand new cars that come in we tend to fill fuel in those cars before sending them out.

PN2402

Yes, so paragraph - - -?‑‑‑So I'm not - - -

PN2403

Sorry, Mr DeClase, please finish. Have you finished?‑‑‑Yes.

PN2404

So your evidence in relation to paragraph 6 of your statement is in fact in relation to all transportation that you do, not just the ones off the wharf. That's right, isn't it?‑‑‑That's right. All vehicles, yes.

PN2405

Can I take you to paragraph 38 of your statement. Do you have that there, sir?‑‑‑Yes.

PN2406

Am I to understand that the evidence you give there again is in relation to your entire transport business, not just vehicles off the wharf?‑‑‑It's to do with vehicles off the wharf. Not on our sites. On our sites is different because we don't drive on public roads.

PN2407

With vehicles off the wharf - and I think some of the evidence you gave earlier, for example, in Melbourne - your facility is about eight to 12 kilometres or something like that from the wharf?‑‑‑That's right, yes.

PN2408

Can you tell me what legislative and regulatory compliance you're talking about there?‑‑‑I'm just giving you the basic knowledge that I have of this stuff. I would say that if we were driving a cab chassis from the wharf to Altona, I'm sure that we've got to make sure that we've got those trade plate number plates on it, otherwise you can't drive it on the road.

PN2409

Yes?‑‑‑With the cars, we don't have to do that because we're carrying the cars on the truck so they don't have to have trade plates on those things. Also if it's a cab chassis that we are getting out on the road from the wharf, we've got to make sure that it's safe before it gets onto the road, i.e., there are no loose items on the truck that can fly off. That's my basic knowledge of it.

PN2410

Yes. There's no fatigue management requirement, is there, when you travel 12 kilometres?‑‑‑No, there's no fatigue management.

*** GLEN FRANCIS DECLASE XXN MR BARONI

PN2411

Generally you would agree with the proposition that those drivers that you employed when you - and when I ask you these questions, it's about your time at PrixCar, not now?‑‑‑Yes.

PN2412

So we'll be clear about that. When you employed drivers at PrixCar, you would offer them employment and allocate them for a particular grade under the award. That's correct, isn't it?‑‑‑That's right, yes.

PN2413

You did that because their primary function was to deliver cars or trucks on the back of a truck - on the back of a trailer?‑‑‑Yes.

PN2414

So they were allocated, generally speaking, a particular type of vehicle which they drove the majority of the time during their employment. That's correct, isn't it?‑‑‑That would be right, but in other circumstances we've got the long‑distance drivers, as well, and they're in a different grade, as well.

PN2415

That's correct. But that was their predominant - so long‑distance drivers would be predominantly doing long‑distance work. That is, transporting a number of vehicles on the back of a truck long distance and you would appoint them to the appropriate grade?‑‑‑Yes.

PN2416

That's correct. In fact all your drivers were allocated a particular grade because the majority of the work they did was transporting cars and/or trucks on a trailer. Correct?‑‑‑Yes.

PN2417

All those drivers that were carrying cars or truck, you would agree with me that they would have significantly more obligations and responsibilities than a driver simply jumping into a cab chassis off the wharf and driving it 12 kilometres to your facility, for example?‑‑‑As I said earlier - - -

PN2418

Just answer my question, please. Just answer my question. I asked you about whether they would have significantly more responsibilities?‑‑‑Yes, yes, yes.

PN2419

I have no further questions. Thank you, your Honour.

RE-EXAMINATION BY MS CARR [2.13 PM]

PN2420

MS CARR: Mr DeClase, just one question. You recall you were asked a question about the facility at Port Kembla. Do you recall that?‑‑‑Yes. I do, yes.

*** GLEN FRANCIS DECLASE RXN MS CARR

PN2421

In one of your answers you indicated that the facility used to be at Minto. Do you recall that?‑‑‑Yes. That's right, yes.

PN2422

Then you said that the trucks would go - or the movement would be from the wharf to Minto. Do you recall that?‑‑‑Yes. That's right, yes.

PN2423

Which wharf were you talking about? Port Kembla or Botany or any other wharf?‑‑‑At the time when I was leaving PrixCar - at the time I was leaving PrixCar they were setting up a new facility at a place called Kembla Grange and we had a small satellite operation at Port Kembla, and there was one at Minto. So I'm not sure where those vehicles came from, because when it was negotiating the EBA - I'm not sure, yes. When the EBA was negotiated, Kembla had not opened as - Kembla Grange had not opened at that stage, so I don't know where it was de‑loaded from. I'm not sure that sure on Sydney.

PN2424

So you're not sure - - -?‑‑‑I don't know whether it's from - I'm not sure, no. From Altona's point of view, I'm pretty clear, because I know it's from near the Westgate Bridge. It comes first to Altona. From Brisbane it's just across the road, but I'm not sure on Sydney. It could be from Glebe, unless they are closed at that time, or Port Kembla.

PN2425

Okay. Thank you, Mr DeClase. That's all, your Honour?‑‑‑Thank you.

PN2426

SENIOR DEPUTY PRESIDENT HAMBERGER: Thanks very much, Mr DeClase. You are excused now. Thank you for your help?‑‑‑Thank you very much.

<THE WITNESS WITHDREW [2.15 PM]

PN2427

SENIOR DEPUTY PRESIDENT HAMBERGER: Is Mr Haining not - - -

PN2428

MS CARR: I spoke to him just after 1 o'clock and indicated that we would be about an hour.

PN2429

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN2430

MS CARR: He had pulled into a road stop and he said that was fine. He was about another hour and 10 minutes, and that was just after 1 o'clock. I think he would soon be there. I indicated about 2.30, but perhaps we could take a five‑minute break and I could make the inquiries, your Honour.

*** GLEN FRANCIS DECLASE RXN MS CARR

PN2431

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay. We will have a short break. Thanks.

SHORT ADJOURNMENT [2.15 PM]

RESUMED [2.38 PM]

PN2432

SENIOR DEPUTY PRESIDENT HAMBERGER: Where are we?

PN2433

MS CARR: Yes, your Honours, Commissioner. We're having a little difficulty raising Mr Haining. It goes straight to voicemail. It may be that he's pulling up at the truck stop and obviously he doesn't want to be distracted by - - -

PN2434

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. He may not have got there, yes.

PN2435

MS CARR: Yes. When I spoke to him just before 20 past 2, he was only 15 kilometres away from the truck stop. I'm hoping they're got reception there, because he has had it all the way from wherever he was at 3 o'clock this morning.

PN2436

SENIOR DEPUTY PRESIDENT HAMBERGER: Where is he?

PN2437

MS CARR: He's going across the Nullarbor.

PN2438

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay. It doesn't sound good.

PN2439

MS CARR: He has been trying to find a - each time he stops we're not ready. He has had reception and now this is the opportunity - - -

PN2440

DEPUTY PRESIDENT SAMS: I hope he hasn't hit the proverbial kangaroo that we heard about.

PN2441

MS CARR: Well, he did say there were plenty of kangaroos on the road and cyclists apparently.

PN2442

SENIOR DEPUTY PRESIDENT HAMBERGER: That's a bit crazy.

PN2443

MS CARR: There's some cycle thing happening. Perhaps we can deal with another matter. Mr Baroni has just raised with me some objections he has to certain parts of Mr Haining's statement, so perhaps this might be a good to deal with that.

PN2444

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN2445

MR BARONI: Thank you, your Honour. There are some minor objections and I don't necessarily mean to trouble the bench about these, but they are, in my submission, legitimate. Have your Honours and Commissioner all got the statement of Haining?

PN2446

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN2447

MR BARONI: The first objection is in relation to paragraph 23, which we object to. He says he sees a lot of drivers from Truck Moves driving trucks quite often. I'm not quite sure how he could identify that anybody is from any organisation when you're driving the trucks we're talking about. It's not as if they're driving a truck with livery on them. If they are driving a truck with livery on it, then I'm not sure how you would be able to tell who's driving the truck and who they're employed by other than make the assumption. I'm not quite sure that it just takes us - - -

PN2448

SENIOR DEPUTY PRESIDENT HAMBERGER: I'm not sure what the significance of that paragraph is, anyway, frankly.

PN2449

MR BARONI: I mean, I just don't think it takes us anywhere.

PN2450

DEPUTY PRESIDENT SAMS: Can't you just ask him about them? Why - - -

PN2451

MR BARONI: I can. I guess I can with all of these - - -

PN2452

SENIOR DEPUTY PRESIDENT HAMBERGER: There's nothing obviously objectionable.

PN2453

MR BARONI: Well, it's hearsay in some respects.

PN2454

SENIOR DEPUTY PRESIDENT HAMBERGER: "I have spoken to people employed by Truck Moves." That's not hearsay.

PN2455

MR BARONI: The fact that he has spoken to somebody isn't hearsay, but what he has been told is hearsay. Potentially that he spoke - - -

PN2456

SENIOR DEPUTY PRESIDENT HAMBERGER: It hasn't actually said that he has been told anything. "Long-distance operations - driving trucks". He says quite often - whether they're driving for Kenworth is hearsay technically, I suppose. I'm not quite sure where it gets - that paragraph, I don't know what the - - -

PN2457

MS CARR: In the context if you go to the previous paragraph, he's responding to the materials in a general way.

PN2458

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN2459

MS CARR: He says he is aware of the company, so it's in the context that he's aware of a company called Truck Moves and its business model, and what it does; that they employ drivers to drive, you know, vehicles from location to location. Then in the context of not just that, but specifically he's talking about long distance operations, so it's his knowledge of talking to truck drivers that part of his business is - or business model is that they do long distance work. It's in that context and I can't see that that's really objectionable.

PN2460

He, like many truck drivers, would pull into truck stops and service stations and they would talk to each other, and he would see them. You know, if that last part of it is objectionable, he has seen them driving trucks, perhaps Mr Baroni can ask him.

PN2461

MR BARONI: Perhaps the last sentence could be struck and the rest of it is okay. I'm in your hands.

PN2462

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, it's not strictly objectionable. I mean, "I have seen drivers from Truck Moves driving trucks", that's reporting what he has seen. "Quite often" - presumably reporting what he has seen. I don't know how he would have known it was for Kenworth, but presumably it - if you think it matters, you can ask him.

PN2463

MR BARONI: Yes.

PN2464

SENIOR DEPUTY PRESIDENT HAMBERGER: It's not really objectionable. I don't think it's very important. "I am aware they do a lot of work for Kenworth", might be hearsay, I suppose. We don't know how he knows, that's the only thing.

PN2465

MR BARONI: I think that's the point I'm making.

PN2466

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, well, you can ask him.

PN2467

MR BARONI: Paragraph 30. Now, again this may be something about clarification but he talks about trucks being transported by companies such as Truck Moves. The evidence is to - Truck Moves doesn't transport anything. I'm not quite sure how that could be sustained in any way. I mean, the evidence is clearly - there's no dispute that we don't transport anything. That paragraph just - at least the first sentence shouldn't be allowed, in my respectful submission.

PN2468

SENIOR DEPUTY PRESIDENT HAMBERGER: I think you could ask him about it. I think he might just mean driven, to be honest.

PN2469

MS CARR: Yes.

PN2470

SENIOR DEPUTY PRESIDENT HAMBERGER: That would be my guess.

PN2471

MS CARR: Perhaps that can be clarified.

PN2472

MR BARONI: Paragraph 31 is objectionable. I'm not quite sure how he can speak other than on his own behalf.

PN2473

SENIOR DEPUTY PRESIDENT HAMBERGER: He doesn't know whether Truck Moves are required to pay for any damage, I assume.

PN2474

MR BARONI: No, paragraph 31.

PN2475

SENIOR DEPUTY PRESIDENT HAMBERGER: That's what I'm looking at.

PN2476

MR BARONI: But he says:

PN2477

The responsibility to deliver a new vehicle to a customer is quite high, particularly when companies such as Truck Moves would be required to pay for damage.

PN2478

I mean, he can't say that.

PN2479

SENIOR DEPUTY PRESIDENT HAMBERGER: Why not?

PN2480

MR BARONI: Well, how would he know?

PN2481

SENIOR DEPUTY PRESIDENT HAMBERGER: What doesn't he know?

PN2482

MR BARONI: He's making a statement about my client.

PN2483

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN2484

MR BARONI: That it's required to pay for damage.

PN2485

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, well, we don't know. He might know, but he doesn't probably know. I don't know whether they are or not. I think you could ask him about that. I suppose the point he is making is that, you know, any new vehicle - a bit of damage - a vehicle that's 10 years old, the sort of damage - if you had a scratch on a vehicle that's 10 years old it's not the same as a scratch on a vehicle that's brand new. We all know that.

PN2486

MR BARONI: Yes. Your Honour, paragraph 34, last sentence:

PN2487

There is a particular skill in driving trucks such as those driven by the drivers for companies such as Truck Moves.

PN2488

It assumes that he knows what Truck Moves does.

PN2489

MS CARR: Well, he does, because as I have already indicated and he has indicated in his evidence, he talks to drivers from Truck Moves. He sees them at various stops such as road stops, service stations, et cetera. He does know what they do and - - -

PN2490

SENIOR DEPUTY PRESIDENT HAMBERGER: I think you can ask him about that, rather than -- -

PN2491

MR BARONI: Yes, your Honour. The only other one I had is the very last sentence at paragraph 35 where he says, "Technically they're both cargo." I mean, that is really to the extent that it has any value whatsoever as a legal conclusion, not - I mean, there is just not technically they're both cargo. I'm not quite sure - - -

PN2492

SENIOR DEPUTY PRESIDENT HAMBERGER: Could we at list delete the "technically they're both cargo"?

PN2493

MS CARR: The last sentence?

PN2494

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, the last sentence from that paragraph.

PN2495

MS CARR: Yes.

PN2496

MR BARONI: The only other one I had is at paragraph 39. He makes an assumption which at the end there is no explanation of the basis upon which he makes it. In fact there can be no basis upon which he makes it, but he says:

PN2497

From the material supplied to me in making this statement, I have made the assumption that drivers performing long distance operations for Truck Moves would be on standard fatigue management, which is 12 hours per day.

PN2498

I'm not quite sure how he can make any assessment based on the evidence about what my client or anybody's else working hours regime is because they're regulated regimes. You don't just pick one today and change it tomorrow. They have to be approved by the regulator, so I'm not quite sure how he could make that assessment on any view.

PN2499

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, I think he's just saying that is an assumption he has made. What is the significance of - - -

PN2500

MS CARR: From the materials that are provided in the evidence of Mr Whitnall and Mr Bradac about the long distance operations and the hours that they travel, I think from recollection it is, you know, at least 10 hours a day. If they're performing a long distance operation, it would need to be either standard, basic or advanced, so he's making the assumption based on what he has read. If they are on 10 hours a day, then they would at least - or the assumption is they're on standard, which is the lowest, 12 hours.

PN2501

SENIOR DEPUTY PRESIDENT HAMBERGER: He has assumed 12.

PN2502

MS CARR: So he has assumed that and he has made that assumption from - - -

PN2503

SENIOR DEPUTY PRESIDENT HAMBERGER: But what is the relevance of making that assumption? That's what I'm not quite sure of.

PN2504

MS CARR: Well, the relevance, I suppose, in the context of the previous paragraph 38 is that drivers performing a long distance operation have to comply with heavy vehicle and national laws. He's making those observations. I mean, it's not in contest that drivers performing long distance operations have to comply, so he's simply saying that they have to comply. He is on the 14 hours and he has made an assumption of what Truck Moves are based on the material.

PN2505

SENIOR DEPUTY PRESIDENT HAMBERGER: But is there any significance in that assumption? I'm not sure, does it have any relevance to anything else he has said?

PN2506

MS CARR: Well, no. I have no objection if it's - - -

PN2507

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, why don't we just take it out on the basis that it doesn't really add anything.

PN2508

MR BARONI: Thank you, your Honour. It then follows - and this is the last issue I wanted to raise - from that that in paragraph 41 he comes to a conclusion which must be a legal conclusion, in the last sentence, by making reference to the - - -

PN2509

SENIOR DEPUTY PRESIDENT HAMBERGER: I see. That's the relevance of it.

PN2510

MR BARONI: Yes:

PN2511

This is a 13‑hour day and is in excess of what is allowed under the standard fatigue management.

PN2512

(a) it's incorrect; (b) it's a legal conclusion. You just can't possibly come to that conclusion based on the material.

PN2513

SENIOR DEPUTY PRESIDENT HAMBERGER: I think the evidence actually was that they fly back the next day. Is that the evidence?

PN2514

MR BARONI: Well, that's part of the evidence. That's part of the evidence, your Honour, but - - -

PN2515

SENIOR DEPUTY PRESIDENT HAMBERGER: In which case this wouldn't be correct, is what I'm saying.

PN2516

MS CARR: No, but they could fly back the same day.

PN2517

SENIOR DEPUTY PRESIDENT HAMBERGER: But if they did fly back the same day and they were on - I just sort of took it out, but I'm not sure whether I should have. I shouldn't have taken it out because now I understand what the point of it is.

PN2518

MS CARR: Yes, well, they wouldn't be on - - -

PN2519

SENIOR DEPUTY PRESIDENT HAMBERGER: Sorry? It's an assumption it's true. We don't know if it's true, but if they're on this 12‑hour standard and they worked 13 hours - if that was true that wouldn't be correct.

PN2520

MR BARONI: No, it doesn't follow that they would be in breach.

PN2521

SENIOR DEPUTY PRESIDENT HAMBERGER: Why not?

PN2522

MR BARONI: Because you - - -

PN2523

MS CARR: Why not?

PN2524

MR BARONI: If you let me finish.

PN2525

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN2526

MR BARONI: Because what you don't know (a) is what breaks they've had. That could just simply be driving time and it makes the assumption that being flown back is work time. It's just an assumption. You can't make the conclusion as a matter of fact and a matter of law that they're in breach. You just can't do it. Simply by looking at somebody's statement that says, "We allocate 10 hours' driving and three hours to fly them back home", you can't get from that a conclusion that you're in breach of driving hours and that's a very serious allegation.

PN2527

COMMISSIONER LEE: Can't you just cross‑examine him about that? Put the proposition to him that it's not tenable for the reasons you say and see what he says about it.

PN2528

MR BARONI: I can, Commissioner, but at the end of the day what you've got is a truck driver making a legal conclusion; expressing a legal view about whether somebody is in breach of something or not.

PN2529

COMMISSIONER LEE: Well, you're entitled to examine him about that.

PN2530

MR BARONI: I have nothing further.

PN2531

SENIOR DEPUTY PRESIDENT HAMBERGER: Are we making any progress in getting hold of him?

PN2532

MS CARR: We have got him.

PN2533

THE ASSOCIATE: Hello, Mr Haining. Are you there?

PN2534

MR HAINING: Yes, I am.

PN2535

THE ASSODICATE: Great. It's Peter, an associate of the Fair Work Commission. You're on a telephone in the hearing room. In the hearing room we have the Full Bench as well as representatives from Truck Moves, the TWU and the ARTIO. Are you there still?

PN2536

MR HAINING: Yes. I'm here, yes.

PN2537

THE ASSOCIATE: Sorry, the ARTIO are not here. You're about to give evidence.

PN2538

MR HAINING: Yes.

PN2539

MS CARR: Mr Haining, it's Wendy Carr from the TWU. Can you hear me clearly?

PN2540

MR HAINING: Yes, I can.

PN2541

MS CARR: Great. Thank you.

PN2542

THE ASSOCIATE: We need to swear him in.

PN2543

MS CARR: You just need to be sworn in before we start your evidence.

PN2544

THE ASSOCIATE: Hello, it's Peter again. Please state your full name and address.

PN2545

MR HAINING: Darrell Richard Haining, (address supplied).

<DARRELL RICHARD HAINING, AFFIRMED [2.52 PM]

EXAMINATION-IN-CHIEF BY MS CARR [2.53 PM]

PN2546

MS CARR: Thank you, Mr Haining. It's Ms Carr again. For the record you have just given your full name and address as Darrell Richard Haining of (address supplied). That's correct?‑‑‑Yes.

PN2547

You're currently employed by PrixCar Services as a long‑distance truck driver. Is that correct?‑‑‑That's correct.

PN2548

You have made a statement for the purposes of these proceedings. Is that correct?‑‑‑That is correct.

PN2549

Do you have a copy of that statement with you?‑‑‑Yes, I do.

PN2550

Is that seven pages in length and dated 21 December 2017?‑‑‑Yes, it is.

PN2551

You have signed that statement, Mr Haining?‑‑‑Yes, I did.

PN2552

Is it true and correct?‑‑‑Yes, it is.

PN2553

Okay. Thank you. I tender that statement.

PN2554

SENIOR DEPUTY PRESIDENT HAMBERGER: Mr Haining's statement is TWU19.

EXHIBIT #TWU19 WITNESS STATEMENT OF DARRELL HAINING DATED 21/12/2017

*** DARRELL RICHARD HAINING XN MS CARR

PN2555

MS CARR: Now, Mr Haining, Mr Baroni will now ask you questions. Mr Baroni is representing Truck Moves today and other companies. The next voice you will hear will be his. That is the evidence.

PN2556

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

CROSS-EXAMINATION BY MR BARONI [2.54 PM]

PN2557

MR BARONI: Mr Haining, it's Mr Baroni. Can you hear me okay?‑‑‑Yes, I can.

PN2558

That's good. Where are you now?‑‑‑Probably 20‑odd kilometres west of the South Australia and Western Australia border.

PN2559

What is the weather like?‑‑‑Beautiful.

PN2560

What are you driving?‑‑‑I drive all the luxury and show cars around the country. I have a big, enclosed car carrier.

PN2561

What are you driving now? Is it a prime mover with a trailer on the back?‑‑‑Yes, a new Mercedes Benz prime mover with a 62‑foot, 4.6‑metre high trailer.

PN2562

That sounds pretty good. It is?‑‑‑Yes, it is.

PN2563

How many cars have you got on the back?‑‑‑Six.

PN2564

So it's a six‑car carrier?‑‑‑Six‑car carrier. It is.

PN2565

That's pretty much your job with PrixCar, isn't it?‑‑‑I've been doing it for 26 years.

PN2566

Yes, driving car carriers around with - maybe not always high luxury end cars, but certainly transporting cars around. That's right, isn't it?‑‑‑Yes, I've been doing the specialised movements for 26 years here.

PN2567

Have you worked for Finemore's?‑‑‑I worked for Finemore's, then for Toll, now it's PrixCar Services.

*** DARRELL RICHARD HAINING XXN MR BARONI

PN2568

How long were you at Finemore's for?‑‑‑I forget how many years it was, because I started with Finemore's and the company has just been progressively taken over. It hasn't changed my position at all.

PN2569

Yes, that's right. Every time whatever company you were working for at the time got taken over, you just continued on your merry way, didn't you?‑‑‑Yes, I did.

PN2570

But you don't remember how long you were at Finemore's for?‑‑‑(No audible reply)

PN2571

Just roughly. If you don't remember, it doesn't matter?‑‑‑Probably between 10 and 15 years, I think I was there.

PN2572

Yes. Always driving car carriers?‑‑‑Yes, and I did do some truck carrying movements, and occasional driveways when the truck was in the workshop or - - -

PN2573

The trucks you moved were on the back of - on a float, weren't they?‑‑‑I had them on a truck carrying trailer and I've also driven just prime movers or rigid trucks from A to B, yes.

PN2574

Yes. Was that at Finemore's?‑‑‑That was at Finemore's, Toll and I've just recently done a couple while I was at PrixCar.

PN2575

They're very uncommon for you though, aren't they?‑‑‑Few and far between, yes.

PN2576

Toll had bought Finemore's. You remember that?‑‑‑Yes. They did, yes.

PN2577

Around about 2000?‑‑‑It would have been, yes. I'd say so. Maybe a little bit later. Maybe a little bit later.

PN2578

Around about that, yes?‑‑‑Yes.

PN2579

Were you covered by an enterprise agreement at the time when you were at Finemore's?‑‑‑Yes, and at Toll and at PrixCar.

PN2580

Yes?‑‑‑Yes.

*** DARRELL RICHARD HAINING XXN MR BARONI

PN2581

When you were working at Finemore's, did you operate out of the Wagga yard?‑‑‑I've always operated out of the - first off when I started it was the Doherty Road, Laverton. When PrixCar took us over as the Toll division, we moved into the PrixCar complex on Kororoit Road, Altona North.

PN2582

Yes. When Toll bought the business of Finemore's - I think you've answered this and apologies if I ask again - your terms and conditions stayed the same?‑‑‑Yes, they did. Nothing changed.

PN2583

Yes. Were you working for Toll up until Toll sold to PrixCar?‑‑‑Yes. I was, yes.

PN2584

What grade are you, grade 7?‑‑‑Yes, I - they call it grade 7 now, but I've always been grade 8, which is grade 7. It has been reclassified I think, yes.

PN2585

That is driving a prime mover with a trailer, isn't it?‑‑‑Yes. Because it's over‑dimensional, I'm paid B‑double rate.

PN2586

Yes, that's right. That has always been your job, hasn't it, to carry cars around?‑‑‑Predominantly, yes. Any other duties that are required of me is if I've got nothing to do.

PN2587

But you are a grade 7, I think you said, or grade 8, because that's the work you did?‑‑‑Yes.

PN2588

So either a B‑double or combination trailer?‑‑‑Yes.

PN2589

How long did it take you to load the vehicles that you're carrying today?‑‑‑An hour and three‑quarters.

PN2590

To load. How many are you carrying; six?‑‑‑Six, yes.

PN2591

What sort are they?‑‑‑A '68 Falcon GT, a Silver Cloud Rolls Royce and a couple of low, normal everyday cars and one new Astra.

PN2592

Don't worry about the Astra, but the others are pretty expensive motor vehicles, aren't they, especially the old GT?‑‑‑Yes. I've been known to have up to about 10 or 11 million dollars' worth of cars inside the trailer.

*** DARRELL RICHARD HAINING XXN MR BARONI

PN2593

So you would really want to take care of those cars, wouldn't you, when you're loading and unloading them?‑‑‑Yes.

PN2594

I'm assuming that's why certainly when you're doing that work, which is most of your work, you would want to check, you know, before you load it that it hasn't got scratches and dings and things on it. Correct?‑‑‑That is correct. The people here think I'm a bit too pedantic about what I do.

PN2595

I can understand why you are, with that kind of load. You would have to fill out some paperwork, because obviously that would be the evidence you would rely on in relation to if there is ever a dispute about, you know, some scratches on the car after you delivered it?‑‑‑Yes, it's all sorted out at the time; at the point of delivery.

PN2596

Yes. That's why you record it on a piece of paper, isn't it, so it's proof?‑‑‑Not any more we don't. We use electronic devices for delivery. We've given paperwork the flip.

PN2597

Where are you headed?‑‑‑To Sydney actually.

PN2598

To Sydney. Whereabouts in Sydney are you going?‑‑‑I'll just go to our Minto depot.

PN2599

Right?‑‑‑And unload there.

PN2600

Yes. You're going to unload the six cars there?‑‑‑Yes.

PN2601

How long do you think that will take you?‑‑‑Half an hour. Maybe a little bit longer. Not really long.

PN2602

The trailer you're pulling, is it a covered trailer or is it like a stinger?‑‑‑No, it's fully enclosed, hard‑sided. Full computerised where I push a button and it brings the cars out to me and outside the trailer.

PN2603

Yes, because it has got platforms in the back, hasn't it?‑‑‑Six individuals cassettes that actually drive themselves out onto the door. It brings them to the ground and then I untie them, and drive them off.

PN2604

So it's quite a complicated piece of machinery, isn't it?‑‑‑About three‑quarters of a million dollars' worth.

*** DARRELL RICHARD HAINING XXN MR BARONI

PN2605

So you would really need to know how to operate that computer so you don't end up concertinaing all those cars. Correct?‑‑‑Yes. That is correct, yes.

PN2606

You would agree with me that when you're driving, which again is your predominant job - when you're driving a load like that, you would need to make sure that it's properly restrained. You agree with that?‑‑‑Yes, yes.

PN2607

Obviously you would need to make sure - and I assume your employer would do this - that the vehicle complies with any dimension requirements under the National Heavy Vehicle Law. You agree with that?‑‑‑Yes. I actually run under a PBS permit, so it's very strict with what goes on in his trailer.

PN2608

So you've got a special permit, don't you, to drive that vehicle?‑‑‑Yes, nationally.

PN2609

Yes. You would also have to make sure that you don't overload?‑‑‑That's correct.

PN2610

No doubt when you're doing long distance you would have to comply with your rest breaks?‑‑‑Yes.

PN2611

In your case when you're doing long distance - that is trips over a hundred kilometres - you would need to fill in a logbook?‑‑‑No, we've got to fill them in all the time because we run under BFM and BFM requires you to fill out a logbook at all times, whether on the highway or running local. The hundred‑kilometre rule does not apply to anybody on BFM.

PN2612

Okay. So you're even under more onerous obligations because you've got to that higher fatigue management system?‑‑‑Yes, we are. The company keeps - we've got tracking and everything like that. We get audited every six months, usually for a full two‑week period to make sure that our work diaries correspond with what we've actually done.

PN2613

Yes. Now, you contrast all that evidence with picking up a cab chassis off the wharf and delivering it to, let's say, for example, your PrixCar facility in Melbourne. It's a big difference, isn't it?‑‑‑No, not really. I don't think so.

*** DARRELL RICHARD HAINING XXN MR BARONI

PN2614

You don't think so?‑‑‑No, because at the end of the day you've got a responsibility. We've all been - there has been trouble down on the wharfs with wharf damage and you have to survey the vehicle, and make sure it's right before you take possession of it. If you find any damage, you have to go through the stevedoring companies to come and check the damage, sign off, otherwise either PrixCar Transport will be liable for the damage or if we get it back to our process VPC and we just sort of dump it there, they've got to prove that we did it, so there's actually - and the company does scrutinise what we do as far as relocating off the wharfs; whether it's cars, trucks, buses, vans. We still have to do the same procedures as what we do for delivering new cars to dealerships.

PN2615

That is because your employer tells you to do that. Isn't that right?‑‑‑?‑‑‑Well, yes, because they want to make sure that - because now, commercially, damages to vehicles is actually skyrocketing. If we haven't done it, that's one way - if it's all brought out in the open before we take possession of the vehicle, then the stevedoring company of the shipping crowd has to pay restitution for the damage.

PN2616

Yes. To the extent that you can speak about any other company that relocates trucks, for example, off the wharf, I mean, you can only make the assumption that they would have similar obligations that you have just lined out in relation to checking for damage. That's correct, isn't it?‑‑‑Yes, and to be commercially viable that's the only way you could probably do it.

PN2617

Yes, but it's an assumption on your part because you don't know really because you don't work for them?‑‑‑That's right, but I have seen what should happen on the wharf and - - -

PN2618

Yes, I know, but I'm not asking you about that. You don't know because you don't know what their commercial arrangements are with the customers and you don't know what their damage liability is with the customers. It's just an assumption your part, isn't it, Mr Haining?‑‑‑Probably, yes.

PN2619

You don't have to load and unload anything when you're driving a cab chassis with no registration from the wharf in Melbourne to a precast facility in Melbourne, do you?‑‑‑No.

PN2620

You don't have to restrain anything either, do you?‑‑‑You have to check to make sure that there's nothing loose on the cab chassis before you take off. You need to check - - -

PN2621

Yes, but there's nothing to restrain because you don't have a load?‑‑‑No. That is correct, yes.

PN2622

You don't need to worry about the dimensions of the vehicle, do you?‑‑‑No.

*** DARRELL RICHARD HAINING XXN MR BARONI

PN2623

At best you'll just have a bit of a look around the vehicle to make sure that there are no scratches or damage on it, et cetera, as you have pointed out. You will put trade plates on it. Correct?‑‑‑Correct.

PN2624

You might put a mudguard on there, depending on whether you need to do that or not?‑‑‑Yes, if it has to be done.

PN2625

Yes?‑‑‑Because it's (indistinct) to drive without mudguards.

PN2626

You'll jump in the vehicle, presumably maybe take a few minutes to familiarise yourself with it if it's something you haven't driven before, start her up and off you go?‑‑‑Yes, and they're not as easy to drive as a loaded semi‑trailer.

PN2627

Absolutely they're not. Couldn't agree more. Then you get to the other end - so let's say you travel your eight or 10 kilometres, for example, to the PrixCar facility in Melbourne and you just deliver it in the yard there. I'm assuming you'll give some paperwork to somebody and that's about the end of it?‑‑‑No, it will get surveyed before they will sign off.

PN2628

Right?‑‑‑While you're there.

PN2629

So somebody will survey it for you because they're going to check whether it's damaged. That's correct, isn't it?‑‑‑That's correct, yes.

PN2630

If you were doing nothing but wharf work - that is the sort of work we were just talking about - you would agree with me that compared to what you're doing today it's much, much easier work, isn't it?‑‑‑No, I - no, it's quite easy being out here compared to driving a cab chassis that can bounce and flip sideways in local traffic. I find it a lot easier out here.

PN2631

But you would agree with me that carrying a fully loaded semi‑trailer requires somewhat more skill and capability than driving a little cab chassis off the wharf into your PrixCar facility in Melbourne. You would have to agree with that?‑‑‑No. Not really, no.

PN2632

So a semi‑trailer fully loaded is easier to drive, less complicated, than the process you have just agreed with me is what occurs on the wharf?‑‑‑To me it's pretty similar to each other because of the light rear end of a cab chassis truck when you've got no stabilities. That's the difference that I find and I've done it myself. You've got to adjust your driving to suit both jobs.

*** DARRELL RICHARD HAINING XXN MR BARONI

PN2633

Where have you come from, did you say, today?‑‑‑I've come from Norseman today.

PN2634

From where?‑‑‑Norseman.

PN2635

How far is that from Sydney?‑‑‑No, I'm actually coming from Perth to Sydney.

PN2636

Right. So that is about, what, 4000 kilometres, four and a half thousand kilometres?‑‑‑Around four, I'd say, all‑up when I go from Perth to Sydney.

PN2637

You're suggesting that that kind of trip with a fully loaded semi‑trailer is no different than a 12‑kilometre trip in a cab chassis rigid vehicle from the wharf to PrixCar?‑‑‑I find it to be more relaxing actually.

PN2638

I'm not sure that you're being Fair Dinkum with us, Mr Haining, when you say that.

PN2639

MS CARR: Objection?‑‑‑No, no, I actually am. I find it to be rather relaxing. My personal view is I don't like doing local work.

PN2640

MR BARONI: Right. So that's your personal view?‑‑‑(Indistinct) out on the highway, yes.

PN2641

That's your personal view and that's all you can speak about, is your personal view, but you would concede that the tasks are significantly different that you need to embark upon in relation to the trips we've just spoken about?‑‑‑The tasks are different, but there's still a skill level in both positions, I find.

PN2642

I'm not suggesting that - - -?‑‑‑That's my personal view.

PN2643

- - - there isn't a skill level, but you don't need the skill level that you have in relation to loading the vehicles with the computerised trailer you have, do you?‑‑‑(No audible reply)

PN2644

You don't have a trailer, Mr Haining, so it must follow that you don't need it?‑‑‑No, no, but - - -

*** DARRELL RICHARD HAINING XXN MR BARONI

PN2645

Nor do you have to restrain the cars.

PN2646

MS CARR: Let him finish, please.

PN2647

MR BARONI: I'm sorry, Mr Haining, what was your answer then?‑‑‑I find there's a skill in both positions, I really do, and that's my personal and long‑term thought on the two different jobs, because at the end of the day you're still driving a truck on a road and you've got a personal safety issue that you have to - for the general public. The general public's view of truck drivers at the moment is pretty low, so there's a skill in what you do and if you're good at your job or you care about your job, it translates into each position.

PN2648

You would agree with me that drivers who have done nothing but relocate vehicles from the wharf to a facility such as PrixCar, driving a cab chassis, unregistered with trade plates, and they've done nothing else, would find it nearly impossible to do what you do with transporting cars that you've been doing for the last 23 years. That's all they do, remember, off the wharf?‑‑‑Yes, they have to be trained up with how to operate the trailer, yes.

PN2649

There'd be a lot of skill involved in learning how to operate the trailer, learning their obligations under the National Heavy Vehicle Law. That's correct, isn't it?‑‑‑Yes. You've got to have a good understanding of the rules.

PN2650

They'd have to know how to load the cars. Correct?‑‑‑Yes.

PN2651

They'd have to know how to unload the cars. Correct?‑‑‑Yes.

PN2652

They'd have to know how to restrain them. Correct?‑‑‑Yes. Correct.

PN2653

They'd have to know how to – and forgetting about your example and your permits, but if they were required to fill in a log book, they'd have to learn how to do that. Correct?‑‑‑Well, it's common knowledge how you should do it, yes.

PN2654

Let's agree to disagree. I'm not sure that is common knowledge. If you've never filled one out and you don't need to, then perhaps you wouldn't know. You'd agree with that, wouldn't you?‑‑‑Yes, probably, yes.

*** DARRELL RICHARD HAINING XXN MR BARONI

PN2655

All those factors that I've just put to you, that you've agreed, you must agree that they're absent from the task of moving a cab chassis from the wharf to a PrixCar facility or a WWL facility. Would you agree with that?‑‑‑Yes, there's no loading and unloading, yes.

PN2656

All the other things that I've just put to you that you've agreed with me are absent?‑‑‑Yes. Yes.

PN2657

Mr Haining, have you got your statement with you, by chance?‑‑‑Yes, I've got to find it. Yes. Yes.

PN2658

Can I just take you to paragraph 39 of your statement, please. Have you got it there, Mr Haining?‑‑‑Yes. 39. Yes.

PN2659

You see there where you say:

PN2660

I've made the assumption that drivers performing long-distance operations for truck moves would be on a standard fatigue management which is 12 - - -

PN2661

?‑‑‑Standard hours.

PN2662

Sorry?‑‑‑Standard hours.

PN2663

Standard hours, yes. That's just an assumption. You wouldn't actually have a clue what they're on really, would you?‑‑‑I've asked a couple of the drivers, yes. They're on a 12-hour day.

PN2664

So the sum total of your knowledge is what you've been told they're on?‑‑‑Through a personal conversation standing with those drivers.

PN2665

Yes, but you actually have no idea what the company's fatigue management program is, do you?‑‑‑I don't know if they do or not, but that's why I've said I've made the assumption.

PN2666

Right?‑‑‑For drivers.

PN2667

That's what I'm putting to you, that you don't know. It's just an assumption?‑‑‑That's why it says an assumption, yes.

*** DARRELL RICHARD HAINING XXN MR BARONI

PN2668

It then follows that if your assumption is wrong, and can I take you to paragraph 41, have you got that there?‑‑‑Yes, I certainly have.

PN2669

That the last sentence where you say:

PN2670

This is a 13 hour day, and is in excess of what is allowed under standard fatigue management.

PN2671

That statement is based on an assumption, isn't it?‑‑‑Yes, that's why I've said assumption.

PN2672

I'm not putting anything other than that, but I just wanted to understand the basis of you making that assertion. So you don't actually know whether they'd be in breach or not?‑‑‑Well, I've spoken to a couple of drivers and they've told me they were on 12 hour days.

PN2673

That's the basis of your assertion that my client is in breach because of something somebody else has told you. Correct?‑‑‑No, I – yes, from those two drivers, yes.

PN2674

If I put to this proposition, that even if you're on a standard fatigue management regime, that once you stop working at 10 hours, the three hours aren't counted. Would you agree with that?‑‑‑The three hours aren't counted?

PN2675

Not work?‑‑‑Well - - -

PN2676

If you don't agree with me, that's fine. I'm just putting the proposition to you. It's up to you?‑‑‑It depends on which person in the enforcement agencies you speak to. It's a very grey area, actually. It's a very grey area.

PN2677

Sorry, your Honour, just one second.

PN2678

Mr Haining, sorry about that interruption?‑‑‑No, that's fine. That's fine.

PN2679

I've got one last question for you and, again, please tell me if you don't know the answer to this. Do you have any knowledge of what PrixCar charges to deliver the load that you're transporting today?‑‑‑I am never given any idea of how much they charge, and it's always been the same. I wouldn't have a clue how much they get per unit.

*** DARRELL RICHARD HAINING XXN MR BARONI

PN2680

Thanks, Mr Haining, I don't have any further – in fact, I've got one. My apologies, I'm sorry. Can I take you to paragraph 45 of your statement? Have you got that, Mr Haining?‑‑‑Yes. Yes.

PN2681

You see there where you say you disagree with the statement of Mr Bradac about concrete mixers?‑‑‑Yes.

PN2682

Am I to understand that when you say:

PN2683

I disagree with this assertion that they only move mixers without a bowl, as I have seen completed concrete mixers on the road around the country with a trade plate.

PN2684

Do you see that?‑‑‑Yes.

PN2685

That could be anybody moving that vehicle around. You wouldn't know that it's Truck Moves. Correct?‑‑‑Well, no, it's – what I meant was I've actually seen concrete mixers which two hours ago – actually one was heading towards Perth with a trade plate on.

PN2686

Yes, but you don't know - yes?‑‑‑That's all - - -

PN2687

Sorry?‑‑‑That's what I meant. I didn't say it was Truck Moves, at no time. But I've seen it, that's what I've said.

PN2688

It could be anybody driving that truck?‑‑‑Any person, yes.

PN2689

Yes, and at paragraph 46, have you got that there?‑‑‑Yes.

PN2690

You say:

PN2691

I'm also aware of drivers employed by Truck Moves doing a trade plate move from Melbourne to Brisbane, and on the return journey drive back in a big concrete pump truck or bus.

PN2692

?‑‑‑Yes.

*** DARRELL RICHARD HAINING XXN MR BARONI

PN2693

Are you putting that you know that it was Truck Moves' drivers that were driving that vehicle?‑‑‑Yes, I've spoken to them.

PN2694

You've spoken to them and - - -?‑‑‑I've spoken to the bloke that was doing and it and I said – we were just yakking in a road house.

PN2695

Yes?‑‑‑And he said – I said, "Yes, who you are working for?" He said, "Truck Moves."

PN2696

That's the sum total of your knowledge about whether Truck Moves actually did that work or not. Correct?‑‑‑That is correct.

PN2697

I have no further questions. Thank you.

PN2698

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you. Ms Carr.

RE-EXAMINATION BY MS CARR [3.25 PM]

PN2699

MS CARR: Yes, just one.

PN2700

Mr Haining, I've just got one question to ask you. You were asked some questions earlier by Mr Baroni about when the different tasks that are involved when moving from the wharf to, say, PrixCar, you were moving, or to the facility, he asked you about loading. You don't have to load/unload. You remember that?‑‑‑Yes.

PN2701

You don't have to restrain. You recall that?‑‑‑Yes.

PN2702

You indicated you have to check there was nothing loose on the cab chassis. Then you were asked about dimensions. Do you recall that?‑‑‑Yes.

PN2703

Then you were asked probably two questions in one, but you were – or it was put to you by Mr Baroni, "At best you look around and check", as in your evidence, and then you didn't get to finish that, "and also put on trade plates and mud guards." Do you recall that?‑‑‑Yes, I do.

*** DARRELL RICHARD HAINING RXN MS CARR

PN2704

Yes. So "At best look around and check", what do you do in terms of looking around? Because you do give evidence in your statement, what do you do when you check the vehicle?‑‑‑You have to first off check inside for any soil, seats, boards. You check for auxiliary equipment like a jack, wheel brace and if they come out with books, you have to check the keys and the notes now with trucks. Then you proceed to check the outside of the vehicle, and you have to check body panels for chips, dints, scuffs and scratches all over. You check the headlight glasses because they've been known to be damaged. Tail lights, to see if they're not damaged. And you also have to check the chassis itself to make sure that when there's chains down on the boat that they haven't in any way damaged any of the undercarriage, dip-housings, spring-housings, chassis rails, everything like that. You make sure that the batteries are secure on the battery box. So it's predominantly a full survey if you were going to buy the thing, yourself. And roof damage. You've got to stand up and try and check the roof for roof damage.

PN2705

Thanks, Mr Haining. I have nothing, further, your Honours, Commissioner.

PN2706

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. Thanks very much, Mr Haining. You're excused now. You can hang up. Thank you?‑‑‑No worries. Thank you.

<THE WITNESS WITHDREW [3.28 PM]

PN2707

SENIOR DEPUTY PRESIDENT HAMBERGER: So we've just Mr Mealin.

PN2708

MS CARR: We just have Mr Mealin, yes.

PN2709

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. Have we got him or - - -

PN2710

MS CARR: He is available. We checked about half an hour ago, I think.

PN2711

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay. Let's ring him up.

<DENNIS MEALIN, AFFIRMED [3.29 PM]

EXAMINATION-IN-CHIEF BY MS CARR [3.29 PM]

PN2712

MS CARR: Thank you. Mr Mealin, it's Wendy Carr, Ms Carr, from the Transport Workers' Union. Can you hear me okay? Can you hear me now?‑‑‑Yes, I've got you.

PN2713

Thank you. For the record, just for the record, your name is Dennis Mealin of (address supplied)?‑‑‑Yes.

*** DENNIS MEALIN XN MS CARR

PN2714

That's correct?‑‑‑Yes, that's correct.

PN2715

You're currently employed by OzWide Heavy Vehicle Deliveries as a truck driver?‑‑‑Yes.

PN2716

You've made a statement for these proceedings?‑‑‑Yes, I have.

PN2717

With you you've got a folder of materials. Is that correct?‑‑‑Yes, I do.

PN2718

In that folder you have your statement which is unsigned statement. Is that correct?‑‑‑That is.

PN2719

That statement goes to 21 pages and it has an annexure called DM1. Is that correct?‑‑‑Yes.

PN2720

That contains a series of photographs? Is that correct?‑‑‑Yes, it does.

PN2721

Which was provided by you?‑‑‑Yes, that is correct.

PN2722

You also have another statement which is a signed statement by you?‑‑‑Yes.

PN2723

Is that correct?‑‑‑Yes, that's correct.

PN2724

That also goes to 20 pages and was dated 22 December 2017?‑‑‑Yes.

PN2725

If you go to paragraph 10 of the unsigned statement?‑‑‑Yes, I'll have a look at that, yes.

PN2726

That talks about the photographs in DM1. Is that correct?‑‑‑Yes.

PN2727

Is it correct that the only difference between the two statements is paragraph 10 in the unsigned statement?‑‑‑Yes, that's correct.

PN2728

Is it the case that you signed the statement that didn't contain that paragraph. Is that correct?‑‑‑Yes, that's correct. I made a mistake.

*** DENNIS MEALIN XN MS CARR

PN2729

Is that because you had – why is that?‑‑‑I don't know. I just made a mistake.

PN2730

Was it an earlier version, the statement without the photographs?‑‑‑Yes. Look, I've been sent this information twice, and that'd be the reason why.

PN2731

I seek to tender both of those, your Honour.

PN2732

SENIOR DEPUTY PRESIDENT HAMBERGER: The unsigned statement is TW20, and the signed statement is TW21.

EXHIBIT #TWU20 WITNESS STATEMENT OF DENNIS MEALIN, UNSIGNED

EXHIBIT #TWU21 WITNESS STATEMENT OF DENNIS MEALIN, SIGNED AND DATED 22/12/2017

PN2733

MS CARR: That's the evidence, your Honours and Commission.

PN2734

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, thanks.

CROSS-EXAMINATION BY MR BARONI [3.33 PM]

PN2735

MS CARR: Mr Mealin, my name's Mr Baroni. I'm going to ask you a few questions. Can you hear me okay?‑‑‑Yes, I've got you, Mr Baroni.

PN2736

Whereabouts are you now?‑‑‑We're on the coast of the south island of New Zealand.

PN2737

Having a good time there, I hope?‑‑‑A little town. Sorry?

PN2738

You're having a good time there, I hope?‑‑‑Yes, we've just driven from coast to coast and, yes, enjoyed some nice scenery and a good day.

PN2739

Excellent. How long did you work for Truck Moves, do you say?‑‑‑Around four years. I'm not sure of the exact amount of time but approximately four years.

PN2740

If I put to you that it was a little bit over two years, would you agree with that?‑‑‑I would have thought it was longer than that.

*** DENNIS MEALIN XXN MR BARONI

PN2741

Well - - -?‑‑‑Okay.

PN2742

No, go on, sorry, I cut you off. My apologies?‑‑‑Yes. No, I thought it was longer than that. You started around about November – I'll withdraw that. You started sometime in late 2014?‑‑‑Yes. Okay. Well, what happened was I had a break after that and I just didn't really take any notice of the amount of time that - - -

PN2743

No, that's okay?‑‑‑I thought it was longer than that, that's all.

PN2744

You had made a complaint against Truck Moves, had you not?‑‑‑A complaint in regards to my wages. Is that what you're referring to?

PN2745

Yes, you got the Transport Workers' Union, the Queensland branch, to write to Truck Moves on behalf of you about your wages. That's correct, isn't it?‑‑‑Yes, that is correct. They acted on my behalf.

PN2746

At that time it was your understanding – and correct me if I'm wrong – that you were covered by the Vehicle Manufacturing Repair Service and Retail Award 2010?‑‑‑No, I didn't know what award I was covered under. That's why I approached the Transport Workers' Union, to act on my behalf.

PN2747

Yes?‑‑‑I did mention that I worked for another company and I was covered under that award when I worked for Mack Trucks, but I didn't believe I was covered under that with TMA.

PN2748

The TWU wrote to Truck Moves on 28 October 2014 on your behalf, alleging that you were covered by that particular award. I'm assuming you would have seen that letter that the TWU drafted for you?‑‑‑Yes. They were making inquiries, is my understanding, and we thought it might have been covered under that award.

PN2749

Well, in that letter and, again, if you don't remember that's fine, in that letter it was more than an inquiry. It made a demand that you pay – sorry, I'll withdraw that. That Truck Moves pay an amount of $36,000 to avoid legal proceedings. Do you remember that?‑‑‑That's correct.

PN2750

That's correct?‑‑‑Okay. Well, we weren't aware of whether or not the – which award we were covered under, but we did believe that there was a wage discrepancy, and we wanted that corrected.

*** DENNIS MEALIN XXN MR BARONI

PN2751

Well, the TWU, on your behalf, asserted that it was the Vehicle Manufacturing Award. That was the award that they say covered you at the time?‑‑‑Okay.

PN2752

Do you accept that?‑‑‑Yes.

PN2753

So it's fair to say that you have a bit of an axe to grind with Truck Moves, don't you?

PN2754

MS CARR: Objection, your Honours and Commissioner.

PN2755

THE WITNESS: I think I find that quite comical, to be quite honest. I don't have an axe to grind with them at all. I believed that I was being paid – well, underpaid, that's why I approached the Transport Workers' Union, and it's as simple as that.

PN2756

MR BARONI: Why are you giving evidence in these proceedings?‑‑‑Well, firstly, I would like an award attached to the industry that I'm working in, so that we get paid correctly instead of being underpaid like we continue to be done.

PN2757

You're aware that at the time that – I'll withdraw that. You're aware that Truck Moves was not covered by any award at that time?‑‑‑Yes, I am.

PN2758

So there was no underpayment at all, was there?‑‑‑I still believe there is an underpayment because I believe an award should be attached to any worker throughout Australia, and I don't believe that - - -

PN2759

Well, I think you need to answer my question?‑‑‑No employer should get away with underpaying their staff.

PN2760

I think you just need to answer my question.

PN2761

SENIOR DEPUTY PRESIDENT HAMBERGER: No, I think he's misinterpreting. I think he's taking a broader view of what underpayment is, and you're taking a legal position, which I understand. But you're taking a legal position; I think he's taking a broader position.

PN2762

MR BARONI: By the reference to underpayment, what your position is, not that they were in breach of anything but that you didn't think you were being paid enough?‑‑‑That is correct.

*** DENNIS MEALIN XXN MR BARONI

PN2763

You say in your statement – I'll withdraw that. Let me put this proposition to you. During your time at Truck Moves, the majority of your work was driving unregistered vehicles. That is vehicles with trade plates?‑‑‑Yes, probably a good 75 per cent.

PN2764

Sorry?‑‑‑Probably 75 per cent.

PN2765

A lot of those were off the wharf, weren't they?‑‑‑No, not at all. There was a lot of second-hand vehicles from companies like Pickles, Manheim. There'd be trucks that have been auctioned, they're second-hand vehicles, they de-register them. So we come and pick the vehicle up and because they're unregistered, we attach a trade plate to them.

PN2766

If I put to you this proposition, that during your employment with Truck Moves you did 273 jobs during your entire employment, would you agree with that?‑‑‑I wouldn't know the figure. It'd be a guesstimate on my behalf so, no, I can't agree with that. It would have to be a lot more than that because I did a lot of local work as well, so - - -

PN2767

Well, I've got the run sheets here, Mr Mealin, and unfortunately you don't, but the run sheets for that period are here, and there's 273 jobs that you did during your period of employment?‑‑‑Okay. Well, I would have to take your word for that but, as I say, some days with the local movements we might move a dozen trucks, and get in and out of a dozen trucks on that day. I don't know if the information that you have in front of you will show that.

PN2768

What it does show is that 207 of those - - -

PN2769

SENIOR DEPUTY PRESIDENT HAMBERGER: We've not seen this.

PN2770

MS CARR: I was just about to ask, perhaps Mr Baroni can point us to the evidence where it is, because he's not reading from evidence. He's reading from a statement. He's not got the job sheets in front of him, so it would be helpful if we knew where they were, or which statement he's referring to.

PN2771

MR BARONI: It's the statement of Mr Whitnall of 1 March 2017, and it's a statement that this witness says he has read.

PN2772

MS CARR: He hasn't.

*** DENNIS MEALIN XXN MR BARONI

PN2773

SENIOR DEPUTY PRESIDENT HAMBERGER: Where is it, sorry? Where is it in that statement?

PN2774

MR BARONI: Paragraph 44. Sorry, your Honour, I might have misunderstood the question you put to me.

PN2775

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, you were referring to these run sheets.

PN2776

MR BARONI: Yes.

PN2777

SENIOR DEPUTY PRESIDENT HAMBERGER: Which - - -

PN2778

MR BARONI: They are attached to the witness statement of Mr Whitnall.

PN2779

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN2780

MR BARONI: Which is 1 March 2017.

PN2781

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN2782

MR BARONI: The run sheets are - - -

PN2783

MS CARR: Paragraph 83.

PN2784

MR BARONI: In MW11 is the exhibit or the annexure, and the paragraph I'm reading from is paragraph 93 of that statement.

PN2785

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN2786

MR BARONI: Have you got that one?

PN2787

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. Yes, I've got it. Have you got it, Ms Carr? Yes?

*** DENNIS MEALIN XXN MR BARONI

PN2788

MR BARONI: Unfortunately, I can't show it to the witness.

PN2789

SENIOR DEPUTY PRESIDENT HAMBERGER: No, no, I understand.

PN2790

DEPUTY PRESIDENT SAMS: Mr Baroni, what is the point as to how many jobs this witness performed?

PN2791

MR BARONI: His evidence throughout his statement is that he – the assertion is that he moved many more vehicles, that is full body vehicles and combination vehicles; and the point of this evidence is that he did not. Sorry, your Honour, that's the point. It's to contest that assertion.

PN2792

DEPUTY PRESIDENT SAMS: Okay. Carry on.

PN2793

MR BARONI: Sorry, Mr Mealin, can you hear me?‑‑‑Yes, I can hear you. Look, I'd like to have a - - -

PN2794

Just wait a second, please. Just wait a second. I apologise, I wasn't aware that you had the material with you. I understand you've got a folder which contains the statement of Mr Whitnall, of 1 March 2017. Is that correct?‑‑‑Yes. Before we continue any further, I'd like to elaborate on the question you asked me before.

PN2795

No. No?‑‑‑The registered vehicles - - -

PN2796

Mr Mealin, no.

PN2797

SENIOR DEPUTY PRESIDENT HAMBERGER: I'm sure Ms Carr may ask you a question about that later on.

PN2798

MR BARONI: So have you got that statement with you now, Mr Mealin?‑‑‑Yes.

PN2799

Can I take you to page 20 of that statement, paragraph 93?‑‑‑Yes.

PN2800

You've read this statement, haven't you?‑‑‑Yes.

*** DENNIS MEALIN XXN MR BARONI

PN2801

You've read all the annexures, NW11 particularly?‑‑‑Yes, all the worksheets are here. Is that what you're waiting on my reply to?

PN2802

Sorry, Mr Mealin, what was that?‑‑‑I said, all the worksheets are here. I have all the paperwork.

PN2803

Yes. So you've read all those, haven't you?‑‑‑To be honest, I – to be honest, no, I haven't gone through them all.

PN2804

I ask you that question because at paragraph 44 of your statement, you've said, "I've had the benefit of reviewing the following material tendered by Truck Moves", and 44(c) is that statement which I've taken you to?‑‑‑Yes.

PN2805

Yes. So I think your evidence was, then, you actually haven't read this statement. Is that correct?‑‑‑No, I have read – I've definitely read Matthew's written statement.

PN2806

So you've read all of - - -?‑‑‑I haven't been through every single one of my worksheets. That I haven't done.

PN2807

You've only read part of the statement?‑‑‑Part of the worksheet.

PN2808

Sorry?‑‑‑No, not part of the statement. The worksheets I haven't gone through singularly, individually.

PN2809

One assumes you've read the letter from the TWU, which I asked you some questions about a little while ago?‑‑‑Yes.

PN2810

You've read that?‑‑‑Yes.

PN2811

There was no dispute that you asserted that you were covered by the vehicle award.

PN2812

MS CARR: Well, I don't know that it was he that asserted it. I think the letter came from the Transport Workers' Union.

PN2813

THE WITNESS: It doesn't - - -

*** DENNIS MEALIN XXN MR BARONI

PN2814

MR BARONI: Well, Mr Mealin, with respect, you've instructed your union to send a letter of demand, and I assume you approved it. Did you approve it or not?‑‑‑Yes, I did approve it.

PN2815

You agree with the content of it?‑‑‑I approved it under their advice.

PN2816

Going back to paragraph 93 of Mr Whitnall's statement, have you got that there?‑‑‑Yes.

PN2817

You see there that at around the second sentence:

PN2818

In that time, Mr Mealin took 273 jobs.

PN2819

Do you see that?‑‑‑Yes, I do.

PN2820

Do you agree with that or don't you agree with that?‑‑‑I explained that to you before. I would not know the amount of jobs, and I would question it because, as I explained before, we did do jobs – I did do local work, and some of that local work entailed moving a dozen or more vehicles per day, so I would disagree with that.

PN2821

Then why didn't you say anything in your statement about it, if you'd read the statement which you say you've read?‑‑‑Look, I don't understand why you're making such a big deal of it. I didn't think a lot of it at the time. If I had realised it was going to be such an issue, I probably would have raised concern about it. But - - -

PN2822

Mr Mealin, you say at paragraph - - -?‑‑‑I - - -

PN2823

Let me finish. Mr Mealin, at paragraph 44 you say you've read the statement. I'm relying on your evidence that you've read the statement. This is not a guessing competition from my part. I'm relying on your evidence. So if you haven't read the statement - - -?‑‑‑I said that before.

PN2824

Sorry?

PN2825

DEPUTY PRESIDENT SAMS: Mr Baroni, he's already said that he hasn't reviewed all the worksheets.

*** DENNIS MEALIN XXN MR BARONI

PN2826

MR BARONI: Well, your Honour - - -

PN2827

DEPUTY PRESIDENT SAMS: What more can he say?

PN2828

MR BARONI: They're the propositions I'm testing.

PN2829

DEPUTY PRESIDENT SAMS: But he just said he hasn't read them all.

PN2830

MR BARONI: Out of that 273 jobs, Mr Mealin, taking you back to paragraph 93, you see that?‑‑‑Yes.

PN2831

76 per cent of those jobs, that is 207, involving driving unregistered cab chassis. Do you agree with that?‑‑‑I wouldn't know the exact amount but that would be somewhere around the figure.

PN2832

Then at paragraph 23 of your statement, you say:

PN2833

When I performed local driving work I was paid an hourly rate which, as I understand –

PN2834

sorry, I withdraw that. You also alleged in your – yes, sorry, at paragraph 23, you say:

PN2835

When I performed local driving work I was paid an hourly rate which, as I understand, was based on the minimum wage and not the award.

PN2836

You see that?‑‑‑Yes, I'm reading it at the same time.

PN2837

Then you say:

PN2838

When performing local work, I would clock my time for a breakdown, waiting for a truck that wasn't ready, and then Truck Moves would then charge that time to the customer.

PN2839

Do you see that?‑‑‑Yes.

*** DENNIS MEALIN XXN MR BARONI

PN2840

You were paid for that waiting time, weren't you?‑‑‑Yes, I was.

PN2841

At the back of your statement you've annexed a whole bunch of pictures. Do you see that?‑‑‑Yes.

PN2842

You didn't take those pictures, did you?‑‑‑The pictures were taken from my phone.

PN2843

But did you take the – you didn't take the pictures, did you?‑‑‑I took the pictures using my phone.

PN2844

Did you take the pictures, Mr Mealin?

PN2845

MS CARR: You just asked him the question.

PN2846

MR BARONI: He hasn't answered the question.

PN2847

THE WITNESS: I've already told you. I've already given you that answer.

PN2848

MR BARONI: Did you take these pictures?

PN2849

SENIOR DEPUTY PRESIDENT HAMBERGER: He said he took them using his phone.

PN2850

MS CARR: He said that. He's answered it.

PN2851

MR BARONI: I don't think he did.

PN2852

MS CARR: He did.

PN2853

SENIOR DEPUTY PRESIDENT HAMBERGER: We all heard that.

PN2854

MS CARR: We all heard it.

*** DENNIS MEALIN XXN MR BARONI

PN2855

SENIOR DEPUTY PRESIDENT HAMBERGER: I know the line's not that clear.

PN2856

MR BARONI: You physically took the pictures, Mr Mealin?‑‑‑Yes. Look, if you want me to say yes, yes is the answer.

PN2857

No, no, I just want you to tell me whether you took them physically or not, because I understood your evidence was that you took them off your phone?‑‑‑I took the photos.

PN2858

You took - - -?‑‑‑Using my phone.

PN2859

The first picture of that prime mover, when did you drive that?‑‑‑That was early – that was one of the first Kenworths I drove for TMA. The dates of when I drove it, that I could not tell you. There's a lot of photos that I've taken and I'm obviously not going to remember the date and time of each one.

PN2860

You'd agree with me that the majority of your work, if not all of your work when you were working at Truck Moves, was unloaded vehicles?‑‑‑The majority. We worked on a percentage, which was 70 – 76.

PN2861

Where did you get that figure from?‑‑‑Yes, well, you're talking about the unregistered vehicles with the trade plates.

PN2862

I'm just asking you whether – I'm putting to you that the majority of the vehicles you drove had no load?‑‑‑That's correct.

PN2863

Yes, the vast majority. Correct?‑‑‑That's correct.

PN2864

As you pointed out, 76 per cent of those were involving unregistered cab chassis, correct?‑‑‑Yes.

PN2865

You would simply drive them from point A to point B. Correct?‑‑‑Most of my work was interstate. I did local for a few months, and then I went on interstate and very rare local work.

PN2866

Most of your work you did was from - - -?‑‑‑So A to B is from – sorry?

*** DENNIS MEALIN XXN MR BARONI

PN2867

Most of the work you did was delivering vehicles from one location to another?‑‑‑That is correct.

PN2868

You'd agree with me that the tasks involved in driving a cab chassis from one location to another are significantly less complicated than driving a fully loaded semi-trailer. Would you agree with that?‑‑‑I would agree with that.

PN2869

Thank you?‑‑‑When we were driving vehicles that were loaded - - -

PN2870

Mr Mealin, thank you, you've answered my question?‑‑‑We - - -

PN2871

You've answered my question. Thank you, Mr Mealin. When you were doing local work – can you hear me, Mr Mealin?‑‑‑Yes.

PN2872

What distances were you travelling?‑‑‑Probably 15, 20 up to - okay, our local work included going to Maxwell, which is over 400 kilometres away, and that included going to Toowoomba, Bundaberg, and it also included local around Brisbane - so it could vary from a five‑kilometre drive to 20 to 150 to 500.

PN2873

Most of that local work was what you would typically understand to be local, short distances, that's correct, isn't it?‑‑‑Yes.

PN2874

When you drove one of these unregistered cab chassis, what heavy vehicle requirements do you say you needed to comply with?‑‑‑As I mentioned, we can travel outside our log book area, so then we have to comply with our log book and fill that in. We also have to fuel it so that it has enough fuel to get from A to B; we have to ensure that fuel and the liquids are fine. Even though it's a brand new vehicle I always check them.

PN2875

I actually asked you, Mr Mealin, what the requirements were under the National Heavy Vehicle Law. I'm not sure that fuelling a vehicle is one of those?‑‑‑Okay, I didn't hear you properly, I'm sorry.

PN2876

Sorry, it might be the line?‑‑‑The line is not good.

PN2877

My apologies, Mr Mealin. Just tell me if you're not hearing me properly, because I don't want to get you to answer a question if you don't understand it?‑‑‑To be quite honest, it's breaking up a fair bit. We're sitting parked on the side of the road heading into the middle of town, but we don't have good service.

*** DENNIS MEALIN XXN MR BARONI

PN2878

No, I understand that. Please tell me if you can't hear me properly, because I want to make sure that you hear the question properly?‑‑‑Yes.

PN2879

I'll ask you again. I just want to know what provisions of the National Heavy Vehicle Law do you say applied to you when you were driving a cab chassis, first of all, locally?‑‑‑Okay. Like I said, I have to have the relevant licence for a start. If I need to go out of the log book area, well then I've got to take care of the log book requirements. I've also got to make sure the vehicle is roadworthy, and you might think that is a silly statement but it's not, because a lot of these vehicles don't come with guards, so we have to make sure that they meet the Department of Transport's standards to be driven on the road.

PN2880

They're trade‑plated, aren't they?‑‑‑Yes, it's trade‑plated, but that doesn't make it a roadworthy vehicle. You know, when we pick up those vehicles, a lot of them don't have guards on them and we have to physically put guards on them, or inspect the guards that have been supplied and assembled on them, and if they're not roadworthy well then we don't drive them. So our requirement is if I'm going to drive a vehicle, it needs to be roadworthy. So just because it's new doesn't mean that I can just in it and drive it.

PN2881

Mr Mealin, that's not a National Heavy Vehicle Law requirement. I want to know what National Heavy Vehicle Law requirements you say are applicable to you?‑‑‑Well, I go back to my licence and I'll go back to the log book.

PN2882

The licence isn't a National Heavy Vehicle Law requirement, Mr Mealin?‑‑‑Okay, well I don't know the laws relevant to what NHVR require. For me, NHVR is the governing body that cover Department of Transport. They're trying to regulate Australia‑wide all the rules, so I have mistakenly believed or assumed that they're attached, or they're separate bodies working together.

PN2883

So the evidence you give at paragraph 53 of your statement is not correct, is it? Perhaps I should be fair to you, is that you're not sure - you're just not sure what laws apply to you?‑‑‑Okay.

PN2884

Do you accept that?‑‑‑No, I don't accept that at this stage.

PN2885

Well you've just said that you don't know a moment ago. I just want to understand, because it's your evidence, Mr Mealin; it's not - - -

*** DENNIS MEALIN XXN MR BARONI

PN2886

SENIOR DEPUTY PRESIDENT HAMBERGER: I guess you look at his evidence. What exactly is it are you saying is not correct?‑‑‑If you look at the specific - - -

PN2887

MR BARONI: Your Honour, he makes reference, for example, to the Heavy Vehicle National Laws. I want to know - - -

PN2888

SENIOR DEPUTY PRESIDENT HAMBERGER: Hang on, but if you read the sentence, he just says in the material that has been suggested by - he's describing what has been suggested. Then he said a - he's describing the material, which presumably is somebody else's - I'm not quite sure what material this is - but he then - I think that's all just a comment on somebody else's evidence, isn't it? That's the material submitted by Truck Moves. He's describing it. That's all he's doing.

PN2889

MR BARONI: But he goes on to paragraph 55.

PN2890

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, okay.

PN2891

MR BARONI: He goes on to paragraph 55 to disagree with that proposition.

PN2892

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, but just can you be more specific?

PN2893

MR BARONI: Yes, your Honour.

PN2894

SENIOR DEPUTY PRESIDENT HAMBERGER: All he says is it's not as simple for drivers in the vehicle relocation industry as it is for a car driver who might just jump into a car and take off.

PN2895

I still have most of the same requirements as the interstate drivers carrying loaded vehicles do, and I feel we have a lot of other obligations and added responsibilities because of the nature of our work.

PN2896

It's pretty broad terms. He hasn't gone into: I have to comply, disagree about the rules in relation to the National Heavy Vehicle Law.

PN2897

MR BARONI: He does at paragraph 57, your Honour.

*** DENNIS MEALIN XXN MR BARONI

PN2898

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay. "I need to know all these laws occur in the National Heavy Vehicle Laws."

PN2899

MR BARONI: That's what I'm trying to get out of the witness.

PN2900

SENIOR DEPUTY PRESIDENT HAMBERGER: Can you just be more specific about it.

PN2901

MR BARONI: I don't think I can be any more specific than asking him what provisions of the National Heavy Vehicle Law apply to that trip.

PN2902

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN2903

MS CARR: If he wants to talk about paragraph 57 and what he talks about, he's talking about his work - his work - and his work, he says, is not as simple as jumping in and out. He needs to know the laws. That's the work that he does as a long distance driver.

PN2904

MR BARONI: Including National Heavy Vehicle Laws and that's what I'm asking him, because he says he does local and long distance.

PN2905

MS CARR: He says he does long distance work. Mr Baroni is asking him about local work generally. He's talking about local work, if he's doing that. He does long distance work, and that's the context of that paragraph.

PN2906

MR BARONI: And the question I put to him: firstly, in relation to local work.

PN2907

MS CARR: Can't you be asking if he does local work?

PN2908

MR BARONI: Are you listening to the same person, are you?

PN2909

SENIOR DEPUTY PRESIDENT HAMBERGER: Can you ask the question again then, Mr Baroni?

*** DENNIS MEALIN XXN MR BARONI

PN2910

MR BARONI: Mr Mealin, I want to know in relation to the work you do what provisions of the National Heavy Vehicle Law apply to your work, when you do local first of all?‑‑‑As I said, if I go out past the log books I have to fill in the log books, which is a 100‑kilometre limit.

PN2911

So when you're doing work inside of the 100‑kilometre limit, what then applies to you?‑‑‑Well, apparently, the NHVR does not - the rules don't apply to me then. The Department of Transport laws still do.

PN2912

When you then do longer journeys, you'd agree with me that - and you're driving a cab chassis, you understand that?‑‑‑Yes.

PN2913

There's nothing to restrain, do you agree with that?‑‑‑No, I don't, because a percentage of the time I was driving vehicles that did have loads on them and had to be restrained.

PN2914

Mr Mealin, this is really going to be difficult if you don't listen to my question. What I asked you is - what I put to you is that when you're driving - - -?‑‑‑You're talking about the cab chassis?

PN2915

Yes?‑‑‑Sorry, yes.

PN2916

So when you're driving a cab chassis, what I'm putting to you is there is nothing to restrain. Do you agree with that?‑‑‑No, I still don't agree with you, because some of the vehicles they had parts that had to be restrained on the chassis of the vehicle, and so no, I don't agree.

PN2917

Mr Mealin, I am putting to you that that is absolutely incorrect and you did nothing of the sort, because it would be entirely illegal to carry anything?‑‑‑I don't know your intention here, but all I can tell you that is on occasion there were vehicles that had extra parts on them that we had to tie down and/or restrain.

PN2918

And what I'm putting to you - - -?‑‑‑There wasn't that - - -

PN2919

Sorry, go on?‑‑‑Sorry?

PN2920

Go on?‑‑‑I'll repeat myself and I will say some of those vehicles had parts that we had to restrain - - -

*** DENNIS MEALIN XXN MR BARONI

PN2921

What I'm putting to you, Mr Mealin, is if you're driving a cab chassis, you cannot carry any load and therefore there is nothing to restrain. Do you agree with that proposition or not?‑‑‑No, I don't, because like I said, sometimes we had to put on - they have the airfoil that goes over the cab, and then they don't attach that and we have to make - they put it on and restrain it, or we do, but then we've got to check that load to make sure it's going to stay on and check the tightness of it and re‑secure it if need be.

PN2922

There are no issues in respect of mass, is there, when you're driving a cab chassis vehicle?‑‑‑No, there isn't.

PN2923

There are no issues about - you've answered my question, Mr Mealin, thank you - there are no issues in relation to dimension, is there?‑‑‑No.

PN2924

You don't have to load and unload anything, do you?‑‑‑Not off the back of the vehicle. Into and out of the cabin sometimes, yes.

PN2925

On very rare occasions you might unload what?‑‑‑Different parts and accessories that are going with the vehicles, and the dealer might say oh look, there's this, this and this to go with it, and then you go and place them inside the vehicle and make sure that they're secure in there also.

PN2926

You'd agree with me that if you had to do that, it would have no correlation to loading and unloading a fully loaded semitrailer, would it?‑‑‑No, it wouldn't, but if you're trying to make out that we don't do those jobs, well then you're - - -

PN2927

Mr Mealin, you've answered the question, thank you. At paragraph 9 you list all these different vehicles that you've driven, is that correct?‑‑‑Yes.

PN2928

And you've driven all those over a great number of years - for a number of years?‑‑‑Yes, I have at different times.

PN2929

So you're fairly knowledgeable and have got a fair bit of experience with different types of trucks?‑‑‑Yes, I do. I've worked my way up from medium rigid vehicle to heavy rigid vehicle, then HC vehicles and then the MC.

PN2930

So driving different vehicles - - -?‑‑‑Not the combination.

*** DENNIS MEALIN XXN MR BARONI

PN2931

Driving different vehicles for you is not really a complicated task, that's correct, isn't it?‑‑‑It's not a simple task like you want to lead people to believe. There is a lot more in driving all these different types of vehicles. There's a lot of different requirements within all of them, including whether they're a truck and trailer with the turntable on it; whether you've got a truck and dog; whether you're driving a compactor with all the different requirements on that with the - and make sure that everything is restrained on it, and what I mean is that they have the stabilisers that have to be restrained properly; the compactor, they've got their issues with making sure everything's restrained; fuel and gas tankers; car carriers. Buses have got their own different things that we need to be aware of and to be able to operate safely.

PN2932

And the majority of the vehicles you drove for Truck Moves were none of those vehicles, were they?‑‑‑(Indistinct) with all of those vehicles.

PN2933

The majority of the vehicles you drove for Truck Moves were none of those vehicles, were they?‑‑‑They were - I drove all those types of vehicles for Truck Moves.

PN2934

Mr Mealin, the majority of those vehicles - - -

PN2935

MS CARR: He has answered the question.

PN2936

MR BARONI: The majority of those vehicles are not what you drove for Truck Moves?‑‑‑Yes, but you're trying to make out like the majority - you're talking about the majority, but you don't want to talk about the minority.

PN2937

I don't want to talk about the minority. I want to talk about the majority, Mr Mealin. Please answer my question?‑‑‑But you want to focus on one particular thing and make out that we never drive anything else. So look, I don't know where you're going with this, but - - -

PN2938

You don't need to know where I'm going. What you need to do is answer my question, Mr Mealin?

PN2939

MS CARR: The question was none of those vehicles were - - -

PN2940

THE WITNESS: I'm trying to, but you don't like the way I answer.

PN2941

MR BARONI: It's not the question.

PN2942

MS CARR: It was. For Truck Moves, none of those vehicles were driven by you.

*** DENNIS MEALIN XXN MR BARONI

PN2943

SENIOR DEPUTY PRESIDENT HAMBERGER: Can you just put the question again?

PN2944

MR BARONI: Mr Mealin, I'll ask you for the third time - - -?‑‑‑That's basically what he's trying to say.

PN2945

Mr Mealin, stop - stop, please. Mr Mealin, just listen to my question and please answer it. The majority of those vehicles are not what you drove for Truck Moves?‑‑‑Okay, the majority. When you want to focus on the minority - - -

PN2946

Can you just answer the question, Mr Mealin?

PN2947

SENIOR DEPUTY PRESIDENT HAMBERGER: Mr Baroni, can you just hang on a sec. The photographs of all the vehicles attached to your statement, they're not all vehicles you drove while you were working for Truck Moves, are they? You said that they're vehicles you drove while you were in the vehicle relocation industry? Did you drive all those different types of vehicles while you were with Truck Moves?‑‑‑The majority of them, yes; some of those vehicles from my current employer, but lots of those vehicles with Truck Moves, and that includes vehicles that he's trying to say that - Matt Whitnall, that is, in his statement - that he didn't move for Midcoast Trucks. Those vehicles are Midcoast Trucks that I drove whilst driving for the TMA.

PN2948

Have you got the photos there with you?‑‑‑Yes, I do.

PN2949

Can we actually just go - I haven't got them in the right order, the same order - but can we just - sorry to do this - but can we just go through them?‑‑‑Yes.

PN2950

The first one - and I don't know the makes or anything - but the first one, it's a white one with - I don't know how to describe it. Assuming you've got the same order, the first one, did you drive that with Truck Moves?‑‑‑The first one, which is a white Kenworth with the sleeper cab.

PN2951

Yes. Did you drive that with Truck - - -?‑‑‑Yes.

PN2952

What about the second one?‑‑‑Yes.

PN2953

It looks like an Isuzu. And the third one, that's - - -?‑‑‑Yes.

*** DENNIS MEALIN XXN MR BARONI

PN2954

And the fourth one, which is a red Mack, a red and white Mack?‑‑‑Yes. Yes, that went to Coffs Harbour.

PN2955

And the next one, which has a red and yellow or green, I'm not sure - - -?‑‑‑Red and yellow crate liner, Linfox vehicle.

PN2956

Was that with Truck Moves?‑‑‑Yes, that was with Truck Moves.

PN2957

And the next one, again I can't see the make, the next one?‑‑‑It's a K200 Kenworth.

PN2958

Yes, did you drive that with Truck Moves?‑‑‑And that was with Truck Moves.

PN2959

And then the one, it's got DAF in the background?‑‑‑Yes. That's a Kenworth.

PN2960

And then there's a Scania?‑‑‑Yes, that's Truck Moves.

PN2961

And then the next one, the brown one?‑‑‑Truck Moves.

PN2962

And the next one?‑‑‑Yes, Truck Moves.

PN2963

And then the next one, the red one - it looks like a vehicle trailer?‑‑‑It's a car carrier, yes, with Truck Moves.

PN2964

And then the next one?‑‑‑Yes, Kenworth, gets parked at my home. That's Truck Moves.

PN2965

And then the next one?‑‑‑Yes, Mack.

PN2966

And then the bus?‑‑‑Yes.

PN2967

So you drove that bus while you were at Truck Moves?‑‑‑Yes.

PN2968

Okay, and then the green one - once again, I don't know the makes?‑‑‑It's another Kenworth, and yes.

*** DENNIS MEALIN XXN MR BARONI

PN2969

And then there's a - I don't know, how do you describe that - is that a combination?‑‑‑It's a Truck and a Dog. It's actually a long vehicle.

PN2970

Yes?‑‑‑It's longer than the normal Truck and Dog. It has five axles on the Dog trailer. You have to display long‑vehicle signs when you drive it.

PN2971

Who did you drive that for?‑‑‑Truck Moves. They were taken to Rockhampton, and we first delivered them to Laveley(?) to get work done on them, and then we went back there to pick them up and took them to Laveley.

PN2972

But it would have been empty, wouldn't it, even though it's a rigid - you know, it's got covers over the top?‑‑‑Yes, that was empty.

PN2973

And then - I think that's the same one taken from another angle, is it - I think it is, isn't it, the one with the long vehicle on? It's the same vehicle. What about the next one? There's a whole series of vehicles. They all look the same to me?‑‑‑Yes. They're all Kenworths. They all came from Melbourne. That was at Halfway Creek, which is halfway between Coffs Harbour and Grafton.

PN2974

Okay, and then the next one?‑‑‑Semitrailer, yes.

PN2975

And then this one that looks like it carries gravel or something?‑‑‑Yes, the Globetrotter, yes.

PN2976

Just to be clear, you're saying you drove that with Truck Moves?‑‑‑Yes, I did.

PN2977

The next one, which is I think - is that a cement mixer - I'm not sure - Scania?‑‑‑It's actually a dangerous goods vehicle. It was registered. It's a powder truck for a mine, and I moved a lot of those backwards and forwards from Newcastle to different mines for refurbishment.

PN2978

That was again with Truck Moves?‑‑‑Yes.

PN2979

And then there's two trucks on the next one?‑‑‑It's a Truck and Dog actually. It's a truck and trailer, and it's just the trailer is backed side‑by‑side.

PN2980

Again, was that with Truck Moves?‑‑‑Yes.

*** DENNIS MEALIN XXN MR BARONI

PN2981

And then the next one has got two vehicles on it?‑‑‑Yes.

PN2982

So you're saying you did - - -?‑‑‑Okay - - -

PN2983

Is that right, you moved - - -?‑‑‑Yes, I actually loaded those vehicles on and I restrained those vehicles and I brought that truck from Melbourne to Brisbane for the truck show, and then it was taken back, with the vehicles reloaded by Truck Moves staff, and taken back to Melbourne.

PN2984

Okay, and then the last, again I don't know what sort of truck that is. It's got - - -?‑‑‑I don't know what the function of it was either. I took that one to Adelaide. There was myself and Rob Cuthbertson(?). We took two of those down.

PN2985

And again, so are you saying all these vehicles were in fact driven by you when you worked for Truck Moves?‑‑‑That is correct.

PN2986

Thank you very much.

PN2987

MR BARONI: Thank you, your Honour. Mr Mealin, I'll ask you again, the majority of the vehicles that you drove for Truck Moves - and I'll make it clearer for you - were not those types of vehicles that you've annexed to your statement?‑‑‑I don't know why you keep going on to the majority of - - -

PN2988

SENIOR DEPUTY PRESIDENT HAMBERGER: But Mr Mealin, I think it's a reasonably simple question. In other words, while you may have driven all these vehicles for Truck Moves, the vehicles that you drove most of the time didn't look like any of those, is that correct?‑‑‑To be quite honest, the photos I took of vehicles were mostly the new ones, and I didn't really take a lot of photos of the second‑hand ones.

PN2989

No, we understand that?‑‑‑I don't know the percentage. I agreed on probably 76 per cent, but yes, okay, I'll agree the majority of the vehicles, yes.

PN2990

Great, thanks. We got that.

PN2991

MR BARONI: Thanks, your Honour. Mr Mealin, now that we've cleared that issue up, those vehicles that you drove, which are articulated vehicles in those photographs you showed us, they're much more difficult to drive than simply driving a cab chassis, are they not?‑‑‑Of course they are.

*** DENNIS MEALIN XXN MR BARONI

PN2992

And tasks that you say, for example, fuelling, that's not a complicated task, is it?‑‑‑No, it may not be a complicated task - okay, well I'll elaborate a little bit. It's a little bit more involved.

PN2993

No, don't elaborate. I don't need you to elaborate, Mr Mealin, thank you?‑‑‑No, you've asked me a question and after - - -

PN2994

And you've answered it. It's not a (indistinct)?‑‑‑No, you've asked me a question and (indistinct) complicated - - -

PN2995

Mr Mealin, please don't talk anymore. I have another question for you.

PN2996

SENIOR DEPUTY PRESIDENT HAMBERGER: I'm sorry, Mr Mealin - - -?‑‑‑I have a right to reply.

PN2997

Mr Mealin, I think you have answered the question. Thank you?‑‑‑No, well I haven't, because it's not - - -

PN2998

What I'll do is I'll allow - I'm sure Ms Carr may ask you to elaborate on that afterwards.

PN2999

MR BARONI: Can I take you to paragraph 82 of your statement? You've got that, Mr Mealin?‑‑‑No, I'm in the process of looking for it - yes.

PN3000

Review a consignment note is hardly a complicated task, isn't it?‑‑‑Yes, it is.

PN3001

It is, is it?‑‑‑It's more involved and that than you would like to believe.

PN3002

I'm putting to you that review a consignment note is actually not even part of your job when you're working at Truck Moves; I'm putting that to you?‑‑‑No. We have moved trucks for Toll, and I've done that on several occasions. They give us all the consignment notes that we have to go through and check. We've got to check the dangerous goods requirements within those loads and whether or not there's a dangerous goods licence required to pull those trailers, and I'll bring up an incidence. We, three of us, three TMA drivers drove to Townsville to pick up three B doubles, fully loaded - - -

*** DENNIS MEALIN XXN MR BARONI

PN3003

Mr Mealin, please don't - can you just stop there, please?‑‑‑You asked me a question.

PN3004

No, but please, I'm not asking you for a narration. I just asked you a simple question and you've answered the question, and again, to the extent that it is a complicated task, as you put it, it's a very small part of the tasks you have to do based on the evidence you gave before in relation to the types of vehicles the majority of the time you drove for Truck Moves, correct?‑‑‑No.

PN3005

You say at paragraph 82 as well that you complete a broad range of bending of squatting, do you see that?‑‑‑And this is in relation to the second‑hand - - -

PN3006

Just let me ask the question first. I'm not asking you for a narration, Mr Mealin?‑‑‑Yes, well, what am I supposed to say - - -

PN3007

Well, I haven't asked you anything yet, Mr Mealin?‑‑‑ - - - yes and no?

PN3008

SENIOR DEPUTY PRESIDENT HAMBERGER: Mr Mealin, just wait for the question.

PN3009

MR BARONI: Obviously the bending and squatting you're referring to there in that paragraph is not the same as the bending and squatting that you may have to do when you're, for example, loading cars onto the back of a car carrier, putting tarps over the back of a trailer, jumping over a trailer to restrain it, throwing straps over it. That's correct, isn't it?‑‑‑Yes. That's correct, yes.

PN3010

In relation to paragraph 90, can I put to you that none of those things you assert there in fact ever happened in relation to Truck Moves?‑‑‑Have you checked with their insurance company? I know of a couple of (indistinct) while I was working there.

PN3011

Just answer my question, Mr Mealin. I'm putting to you that it has never happened to Truck Moves - it's never had a fatality; none of those factors you raise in there, those matters, have ever happened to Truck Moves?‑‑‑All of those things happened.

PN3012

I'm putting to you that (indistinct) that it was a fatality or it was a driver that had a heart attack?‑‑‑It was a driver that had a fatality at Kempsey.

PN3013

He had a heart attack?‑‑‑When he fell asleep.

*** DENNIS MEALIN XXN MR BARONI

PN3014

He had a heart attack, I'm putting that to you. Do you agree with that or you don't?‑‑‑I was never given that information. I was told by Jenny Barco that he fell asleep at the wheel and hit a tree. She attended his funeral, and that is - - -

PN3015

So in other words you have no idea - - -?‑‑‑ - - - the amount of information that I know.

PN3016

In other words, you have no idea first‑hand what actually happened, that's correct, isn't it?‑‑‑I'm repeating what I was told.

PN3017

I know what you're repeating, but what I'm putting to you is that you don't have first‑hand knowledge of what happened, correct?‑‑‑Apparently not.

PN3018

I think I have one further question, your Honour. No, I've dealt with that. I have no further questions, thank you.

PN3019

SENIOR DEPUTY PRESIDENT HAMBERGER: Thanks. Ms Carr?

RE-EXAMINATION BY MS CARR [4.32 PM]

PN3020

MS CARR: Yes. Mr Mealin, I just have a couple of questions?‑‑‑Yes.

PN3021

Do you recall you were asked a series of questions by Mr Baroni about during your time with Truck Moves, the majority were unregistered vehicles, do you recall that?‑‑‑Yes.

PN3022

And you answered about 75 per cent?‑‑‑Yes.

PN3023

Then you were asked some questions about the types of vehicles that you drove for Truck Moves that had trade plates. Do you recall those questions?‑‑‑Yes.

PN3024

Or generally the types of vehicles you drove with trades plates, do you remember that?‑‑‑Yes.

PN3025

And then you went on and started to say a lot of second‑hand vehicles at auctions that had been deregistered, do you recall that?‑‑‑Yes.

*** DENNIS MEALIN RXN MS CARR

PN3026

You wanted to, further on in evidence, you wanted to elaborate on what you drove in relation to those vehicles. Do you recall that?‑‑‑Yes.

PN3027

Were they only new vehicles that you drove?‑‑‑No, they weren't. We drove for a lot of companies that were registered vehicles and they were second‑hand, or they were second‑hand coming from auctions like Pickles and Manheim and Nasco.

PN3028

You were also asked about a letter that the Queensland branch or the Transport Workers Union wrote in relation to underpayments, or alleged underpayments to Truck Moves. Do you recall that?‑‑‑Yes, I recall that on my behalf - yes.

PN3029

You were asked some questions about which was the applicable award, do you recall that?‑‑‑Sorry, I did not get that.

PN3030

Remember the letter that the Queensland branch wrote to Truck Moves in relation to - - -?‑‑‑Yes, I got that part.

PN3031

Do you recall that? And you were asked questions about the - I think it was the Vehicle Manufacturing Award. Do you recall that?‑‑‑Yes. Yes, I do.

PN3032

Did you attend the branch and have any discussions with the branch or the TWU about your underpayment?‑‑‑Yes.

PN3033

I think I recall you said you didn't know which award applied, is that correct?‑‑‑That's correct. We weren't sure if that award applied or not.

PN3034

Okay. So - - -

PN3035

MR BARONI: I object to the question.

PN3036

MS CARR: Well, you asked questions about it. You put to him that - - -

PN3037

SENIOR DEPUTY PRESIDENT HAMBERGER: Wait for the objection.

*** DENNIS MEALIN RXN MS CARR

PN3038

MR BARONI: Let me deal with the objection. His answer was "we." His evidence was he didn't know. Now it's "we" didn't know which award. Who is "we?" I mean, we're entitled to understand that the TWU thought that much because it's in evidence and it was never challenged on the first occasion. So there can be no dispute that the TWU thought that that was the relevant award at that time.

PN3039

MS CARR: There were questions asked about what Mr Mealin - and I recall a question was asked or put to him that it was Mr Mealin who said the award didn't apply. Is that correct? Do you recall that question being put to you, Mr Mealin?‑‑‑Yes. Look, it dropped out for a little while, so I had missed the last minute or two.

PN3040

Do you recall a question put to you that it was you who said it was the Vehicle Manufacturing Award that applied? Do you recall that question?‑‑‑Yes, I do.

PN3041

Whose decision was it that the Vehicle Manufacturing Award applied? Do you recall?

PN3042

MR BARONI: I object to the question.

PN3043

MS CARR: Well, you - - -?‑‑‑We discussed the matter and I mentioned that I'd worked for - - -

PN3044

MR BARONI: Mr Mealin, there's an objection.

PN3045

SENIOR DEPUTY PRESIDENT HAMBERGER: Just wait a moment. Sorry, Mr Mealin.

PN3046

MR BARONI: I object to that question. It's not a question of decision. The TWU have made a forensic decision to put it in a letter. It doesn't matter who made the decision. They've asserted to my client that that was the award.

PN3047

MS CARR: Yes, and it was the TWU who asserted that, not Mr Mealin. That's the point I'm making, because it was put to him that it was he that was asserting that. It was the TWU who asserted that.

PN3048

MR BARONI: But that was his evidence.

PN3049

THE WITNESS: Exactly.

PN3050

COMMISSIONER LEE: Does this really take us very far?

*** DENNIS MEALIN RXN MS CARR

PN3051

MS CARR: I'll move on. There were also some questions put to you in relation to your work diaries and paragraph 93 of Mr Whitnall's statement. Do you recall that?‑‑‑Yes.

PN3052

And you have the statement in front of you? Or could you go to that statement, the statement of Mr Whitnall?‑‑‑Yes. We're in the process of doing that. Yes?

PN3053

Okay. If you look at paragraph 93, there are a series of words there that have been redacted, that is, they've been blacked out?‑‑‑Yes.

PN3054

Is that the case with the copy you have, Mr Mealin?‑‑‑Yes, it is.

PN3055

MR BARONI: Before the question is asked, (indistinct) redacted anything.

PN3056

SENIOR DEPUTY PRESIDENT HAMBERGER: No, nor do (indistinct).

PN3057

MS CARR: Well, a series of questions were put to him in relation to that paragraph.

PN3058

SENIOR DEPUTY PRESIDENT HAMBERGER: No, this bit about being redacted.

PN3059

SPEAKER: That version was redacted.

PN3060

SENIOR DEPUTY PRESIDENT HAMBERGER: I see. Apparently some of it has been redacted in the public version. Yes, I didn't realise. It just took his name out, basically.

PN3061

MS CARR: Mr Mealin, did you understand that paragraph to be referring to you when you read the statement?‑‑‑Yes.

PN3062

You were asked some questions or a question about the tasks involved by Mr Baroni on refuelling, do you recall that?‑‑‑Yes.

PN3063

It was put to you that that task wasn't complicated, do you recall that?‑‑‑Yes, I do.

*** DENNIS MEALIN RXN MS CARR

PN3064

You didn't entirely agree with that?‑‑‑No, not at all.

PN3065

You wanted to elaborate?‑‑‑Some of the vehicles had up to six tanks in them. They all have taps on them to either open or close them. They have a main feeder tank. They have types of taps to turn the tanks on or off. You get a vehicle from Volvo, or Mack truck vehicles, they will put fuel in one tank only and have the rest of the tanks turned off, and if you fuel the other tanks and are not aware of what fuel tanks are turned on or off, you're going to run out of fuel. So it is not that simple, and then you've got to crawl under the truck and turn the tanks on. If you're driving say from Brisbane to Melbourne, you want them all on, you just don't want to run on one tanks, but if you're unaware of what has been done to the trucks, as in which tanks are turned on or off, well you're going to have a problem. So it is not as simple as just putting fuel in the tanks.

PN3066

Thank you, Mr Mealin. That's the re-examination, thank you.

PN3067

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you, Mr Mealin, for your help this afternoon. I hope you enjoy the rest of your time in New Zealand. Thanks a lot?‑‑‑Okay. Thank you.

<THE WITNESS WITHDREW [4.42 PM]

PN3068

SENIOR DEPUTY PRESIDENT HAMBERGER: That's all the evidence?

PN3069

MS CARR: That's the evidence, thankfully.

PN3070

SENIOR DEPUTY PRESIDENT HAMBERGER: So we'll adjourn for the day for submissions 13 April.

ADJOURNED UNTIL FRIDAY, 13 APRIL 2018 [4.43 PM]

*** DENNIS MEALIN RXN MS CARR

LIST OF WITNESSES, EXHIBITS AND MFIs

JOHN BRADAC, RECALLED......................................................................... PN1618

CROSS-EXAMINATION BY MR GIBIAN.................................................... PN1618

EXHIBIT #TWU16 EXTRACT OF TRANSCRIPT FROM FEDERAL COURT PROCEEDINGS ON 02/09/2015....................................................................... PN1635

RE-EXAMINATION BY MR BARONI.......................................................... PN1667

THE WITNESS WITHDREW.......................................................................... PN1687

ANTHONY CASSAR, SWORN........................................................................ PN1691

EXAMINATION-IN-CHIEF BY MR GIBIAN............................................... PN1691

EXHIBIT #TWU17 WITNESS STATEMENT OF ANTHONY CASSAR DATED 21/12/2017............................................................................................................................... PN1702

CROSS-EXAMINATION BY MR BARONI................................................... PN1705

THE WITNESS WITHDREW.......................................................................... PN1965

ANTHONY CASSAR, RECALLED................................................................ PN1990

CROSS-EXAMINATION BY MR BARONI, CONTINUING...................... PN1990

RE-EXAMINATION BY MR GIBIAN............................................................ PN2145

THE WITNESS WITHDREW.......................................................................... PN2167

GLEN FRANCIS DECLASE, SWORN........................................................... PN2189

EXAMINATION-IN-CHIEF BY MR GIBIAN............................................... PN2189

EXHIBIT #TWU18 STATEMENT OF GLEN FRANCIS DECLASE........ PN2202

CROSS-EXAMINATION BY MR BARONI................................................... PN2203

THE WITNESS WITHDREW.......................................................................... PN2374

GLEN FRANCIS DECLASE, RECALLED................................................... PN2374

CROSS-EXAMINATION BY MR BARONI, CONTINUING...................... PN2374

RE-EXAMINATION BY MS CARR............................................................... PN2419

THE WITNESS WITHDREW.......................................................................... PN2426

DARRELL RICHARD HAINING, AFFIRMED........................................... PN2545

EXAMINATION-IN-CHIEF BY MS CARR................................................... PN2545

EXHIBIT #TWU19 WITNESS STATEMENT OF DARRELL HAINING DATED 21/12/2017............................................................................................................................... PN2554

CROSS-EXAMINATION BY MR BARONI................................................... PN2556

RE-EXAMINATION BY MS CARR............................................................... PN2698

THE WITNESS WITHDREW.......................................................................... PN2706

DENNIS MEALIN, AFFIRMED...................................................................... PN2711

EXAMINATION-IN-CHIEF BY MS CARR................................................... PN2711

EXHIBIT #TWU20 WITNESS STATEMENT OF DENNIS MEALIN, UNSIGNED............................................................................................................................... PN2732

EXHIBIT #TWU21 WITNESS STATEMENT OF DENNIS MEALIN, SIGNED AND DATED 22/12/2017............................................................................................................. PN2732

CROSS-EXAMINATION BY MR BARONI................................................... PN2734

RE-EXAMINATION BY MS CARR............................................................... PN3019

THE WITNESS WITHDREW.......................................................................... PN3067