PN968

JUSTICE ROSS: Thanks for sorting out the order and providing a hard copy, given that we're not able to print anything, which is proving to be a source of some frustration. But I'm hoping the situation will be fixed up during the course of the day. So the first witness?

PN969

MS BURKE: Yes, the first witness is Katie Routley and all the witnesses of course will now be giving evidence by phone.

PN970

JUSTICE ROSS: Yes.

PN971

MS BURKE: While the call is being put, if I can just explain how I propose to tender the statements.

PN972

JUSTICE ROSS: Sure.

PN973

MS BURKE: All of the witnesses have been provided with hard copies and electronic copies of their statements. They should have them with them. I'll just ask them if they have statements with the particular date, number of paragraphs, the number of annexures.

PN974

JUSTICE ROSS: Certainly.

PN975

MS BURKE: If they say yes, then they'll be tendered. If there's any objection or better course I'm open to hearing that.

PN976

JUSTICE ROSS: Yes. No, I think we'll deal with it that way and see how we go.

PN977

THE ASSOCIATE: Please state your full name and address?

PN978

MS ROUTLEY: Katie Ann Routley, (address supplied).

<KATIE ROUTLEY, AFFIRMED [10.13 AM]

EXAMINATION-IN-CHIEF BY MS BURKE [10.13 AM]

PN979

MS BURKE: Good morning, Katie, this is Kate Burke. Can you hear me all right?‑‑‑I can. You're a little quiet but I can hear you.

*** KATIE ROUTLEY XN MS BURKE

PN980

Is that better?‑‑‑A little bit, yes.

PN981

I'll speak up?‑‑‑Thank you.

PN982

Can you please repeat your full name for the transcript?‑‑‑Katie Ann Routley.

PN983

And your address?‑‑‑(Address supplied).

PN984

And your occupation?‑‑‑I'm a teacher.

PN985

And Katie, have you prepared a statement for this proceeding?‑‑‑Yes.

PN986

Do you have that statement with you?‑‑‑I do.

PN987

And is that statement dated 6 May and 24 paragraphs?‑‑‑Yes.

PN988

And are there four attachments to that statement?‑‑‑There are.

PN989

And is that statement - sorry, are the contents of that statement true and correct?‑‑‑Yes.

PN990

Thank you. I tender the statement.

PN991

JUSTICE ROSS: I'll mark the statement exhibit ACTU7.

EXHIBIT #ACTU7 WITNESS STATEMENT OF KATIE ANN ROUTLEY

PN992

MS BURKE: Thank you, Katie, that's all from me and there will be some questions?‑‑‑Thank you.

CROSS-EXAMINATION BY MR WARD [10.14 AM]

PN993

MR WARD: Ms Routley, can you hear me?‑‑‑I can, yes.

*** KATIE ROUTLEY XXN MR WARD

PN994

Can I just introduce myself. My name is Nigel Ward. I'm appearing in this case for the Australian Chamber of Commerce and Industry which is an employer organisation. Can I just assure you before we start that I have no involvement with St John Grammar School at all, so don't be concerned that I'm acting for them because I'm not. I think probably what might be easier in me asking you questions is if I sort of take you through your statement. I'm not going to go to all the paragraphs but what I'll do is I'll reference a paragraph, I might read a little part of it, and then I might ask you a question. That might be the easiest way for us to follow, given we're on the phone?‑‑‑Sure.

PN995

Can I just understand, first of all, St John Grammar School is in South Australia?‑‑‑It is, yes.

PN996

Could you go to your statement and could you go to paragraph 2?‑‑‑Yes.

PN997

You say in your statement at paragraph 2 these words:

PN998

After the birth of my first child my husband did not have permanent work so I needed to work part‑time to ensure we had secure income.

PN999

As your husband, was he in permanent work before you had your first child?‑‑‑He was working point 8 before we had my ‑ our first child, yes.

PN1000

Before that was he in permanent work or has he always been in part‑time work?‑‑‑He had all in contracts, yes.

PN1001

Do I take it that he's a teacher as well?‑‑‑Yes, he is.

PN1002

There's some strange things in the school world. So when you say he's always done contract work ‑ ‑ ‑?‑‑‑Yes.

PN1003

‑ ‑ ‑ does that mean that he's only ever done fixed term contract work?‑‑‑Yes, he had up until that time, yes.

PN1004

Does he do those contracts with the same school or different schools?‑‑‑He's been at a few different schools.

*** KATIE ROUTLEY XXN MR WARD

PN1005

So up to you having your first child, were you the primary income earner in the family or was your husband?‑‑‑I guess it would have been me, although both of us, because we were both in the same position, we both have contract work and sometimes full‑time, sometimes part‑time. Yes, so I guess it's a bit of both.

PN1006

Am I right in saying that if you had part‑time contract work before your children, that was because you couldn't find full‑time work?‑‑‑Yes.

PN1007

Can I take you down to paragraph 4? You say:

PN1008

From 2003 to 2010 I held numerous one‑year contract teaching positions at a variety of non‑government schools in South Australia.

PN1009

?‑‑‑Yes.

PN1010

That's a reference to what we've just been talking about, is it?‑‑‑That's correct, yes.

PN1011

So you get a contract for a school year and that contract might be renewed or you might end up taking a contract with somebody else?‑‑‑Exactly, yes.

PN1012

And this isn't judgemental, I'm just asking a question. During those seven years were you looking for full‑time work?‑‑‑Yes.

PN1013

Was your husband looking for full‑time work?‑‑‑Yes.

PN1014

Is full‑time work hard to come by in schools in South Australia?‑‑‑Full‑time permanent work is hard to come by, yes, definitely. Contract work is a little easier to pick up.

PN1015

Is there any reason why the schools in South Australia use contract work?‑‑‑They might ‑ well, the schools that we normally worked in were in Catholic schools and they hold a teacher's permanent contract until their last child is 5 ‑ permanent position until their last child turns 5. So you know, if they have more than one child that might be they're holding that job for seven years for somebody else. And they won't make someone else permanent until that person has decided not to return to their permanent position.

PN1016

I'm sorry, I don't know much about the Catholic education system?‑‑‑That's okay, yes, that's fine.

*** KATIE ROUTLEY XXN MR WARD

PN1017

Can you turn to paragraph 8?‑‑‑Yes.

PN1018

You talk in paragraph 8 about the fact that you were contemplating moving to part-time when you returned after having your child?‑‑‑Yes.

PN1019

You talked to a number of your colleagues. Do I take it that it was common knowledge at the school that the school didn't support part-time work?‑‑‑Yes, certainly.

PN1020

Would you have known that before you started there?‑‑‑No, I didn't know because I just assumed that it would be the same as the Catholic system which is where I had previously worked and they have part-time positions available.

PN1021

So in other parts of the Catholic education system they do?‑‑‑Yes, but not in the independent system, which I didn't realise at the time.

PN1022

Just help me a little bit. Can you just explain to me what the difference is between the Catholic system and the independent system?‑‑‑Yes, so St John's Grammar is an independent school. They are Anglican so they're not under the same (indistinct) the Catholic system.

PN1023

I understand?‑‑‑I think they can make their own judgement on whether they have part-time work or not.

PN1024

I'll just get a - do you have a big echo on your end of the phone?‑‑‑Sorry, I didn't hear that.

PN1025

That's okay. Just bear with me. We've got a massive echo on the end of our phone?‑‑‑Yes, I can hear an echo, yes.

PN1026

Just bear with us, Ms Routley?‑‑‑Sure.

PN1027

Ms Routley, I'm going to press on?‑‑‑Okay.

PN1028

Because of the echo, if in any way you can't hear what I'm saying please just ask me to repeat myself, okay?‑‑‑Sure.

*** KATIE ROUTLEY XXN MR WARD

PN1029

I've got a copy of your statement that's got various black boxes over things. It's called being redacted. I doubt you have. Can I just ask this? Is the principal of St John's a woman or a man?‑‑‑The principal of the whole school is a woman. Principal of the junior school is a man.

PN1030

Do you work in the junior school or the other part of the school?‑‑‑The junior. I worked in the senior school but the principal of the whole school makes the final decision.

PN1031

Yes, yes, thank you. Could you turn to paragraph 13?‑‑‑13, yes.

PN1032

In 13 you talk about the letter you received from the principal telling you that they wouldn't support your job share proposal?‑‑‑Yes.

PN1033

Later on you talk about a memo, I assume from the principal ‑ ‑ ‑?‑‑‑Yes.

PN1034

- - - that gives an update on enterprise agreement discussions. You're familiar with the principal's letter to you and the memorandum?‑‑‑Yes.

PN1035

Can I just ask this? Both the letter and the memorandum describe the school's position on part-time employment, that's correct?‑‑‑They do, yes.

PN1036

Is it your understand that the letter and the memorandum represent the school's position on that issue?‑‑‑Yes.

PN1037

Can I take you to paragraph 15? It says in paragraph 15:

PN1038

Financially I needed to work and I also wanted to care for my child. I tried looking for part‑time work at other schools but was unsuccessful.

PN1039

Did you look for part‑time work in other Catholic schools or independent schools?‑‑‑In Catholic schools because independent schools won't take part‑time.

PN1040

You just weren't able to find a position that suited you?‑‑‑That's correct. Most part‑time positions are filled by people that are working at, you know ‑ they might be employed full‑time but would like to work part‑time so they are already in the job. It's hard to get a job part‑time if you're not already working in that school.

*** KATIE ROUTLEY XXN MR WARD

PN1041

So the majority of part‑time jobs in the Catholic system, those people have probably been full‑time first?‑‑‑Yes, and they would be returning from maternity leave.

PN1042

You talk in paragraph 15, around that time you're talking about the fact you've got to make a decision to return to full‑time teaching in 2014. Was your husband still doing part‑time contract work then?‑‑‑So in 2007 he was doing point 8 part‑time contract and it was about October, I think, that I needed to tell ‑ of 2013 that I needed to tell St John's what I was planning to do for the next year and he didn't know at that time what he would be doing for 2014 (indistinct).

PN1043

No, that's okay. So in 2013 he was on a one year contract again?‑‑‑Correct, yes.

PN1044

You and your husband weren't sure whether or not he'd have a contract in 2014?‑‑‑Correct, yes.

PN1045

Did that influence your decision to go back to work?‑‑‑Most definitely, yes. That was pretty much - I could have taken another year of parenting leave from my position but I felt that I couldn't do that in case he didn't have a position for the year after 2014.

PN1046

So it could have been possible that if you hadn't gone back to work both you and your husband in 2014 wouldn't have been in work?‑‑‑Correct, yes.

PN1047

I don't know if I'm wrong in this but if you go to paragraph 19?‑‑‑Yes.

PN1048

Am I right in saying that what you're trying to tell us in paragraph 19 is that you took additional parental leave at that time?‑‑‑Yes, so the year that I could have taken for my first child of parenting leave, which I decided not to take, I took again later.

PN1049

This is probably me just trying to clarify, so you returned to work in 2014?‑‑‑I did, full-time, yes, for a year.

PN1050

How long did that - for a year. Then you took further parental leave after that?‑‑‑I took maternity leave for my second child and then one year of parenting leave for my second child, and then a year of parenting leave that I had from my first child I took.

*** KATIE ROUTLEY XXN MR WARD

PN1051

I don't wish to pry but do I assume that by that time your husband had a full-time job?‑‑‑Yes, permanent position.

PN1052

That allowed you to afford to be able to take that two or three years off work?‑‑‑Correct, yes.

PN1053

Thank you, Ms Routley, those are the only questions I have for you. I don't know if somebody else might. Just wait and see. Thank you very much?‑‑‑Okay, thank you.

PN1054

PRESIDENT ROSS: Any re-examination?

PN1055

MS BURKE: No, no re-examination.

PN1056

PRESIDENT ROSS: Thank you for your examination, Ms Routley, you're excused.

<THE WITNESS WITHDREW [10.27 AM]

PN1057

MS BURKE: The next witness is Sherryn Jones-Vadala, and just to - there's a typo of her name on the timetable. It's Vadala not Valala. D first.

PN1058

PRESIDENT ROSS: Right.

PN1059

MS JONES-VADALA: Hello?

PN1060

THE ASSOCIATE: Ms Jones-Vadala, my name's Danielle, I'm calling on behalf of Ross J. I'm dialling you into the hearing. Can you confirm if there's anyone else in the room with you?

PN1061

MS JONES-VADALA: No, I'm just going to put my headphones in.

PN1062

THE ASSOCIATE: No worries. So we'll recommence proceedings, let me know when you're ready.

PN1063

MS JONES-VADALA: Can you hear me now? Hello?

*** KATIE ROUTLEY XXN MR WARD

PN1064

THE ASSOCIATE: So we'll now recommence proceedings. I'll proceed to read the affirmation. Please state your full name and address.

PN1065

MS JONES-VADALA: Sherryn Jones-Vadala, (address supplied).

<SHERRYN JONES-VADALA, AFFIRMED [10.29 AM]

EXAMINATION-IN-CHIEF BY MS BURKE [10.29 AM]

PN1066

MS BURKE: Ms Jones-Vadala, this is Kate Burke speaking. Can you please repeat your full name for the transcript?‑‑‑Sherryn Jones-Vadala.

PN1067

Your address?‑‑‑(Address supplied).

PN1068

Your occupation?‑‑‑Teacher.

PN1069

Ms Jones-Vadala, you prepared a statement for the purposes of this proceeding?‑‑‑Yes, I have.

PN1070

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

PN1071

Can you confirm that it is dated 6 May 2017?‑‑‑Yes.

PN1072

It's 26 paragraphs?‑‑‑Yes.

PN1073

With two attachments?‑‑‑Yes.

PN1074

Is it the case that in paragraph 2 you talk about your employment situation and that since you made a statement that situation has changed?‑‑‑Yes.

PN1075

Have you just finished a six month contract 0.8 at St Monica's in Epping?‑‑‑Yes.

PN1076

In 2018 did you start a permanent position working 0.7 at Salesian College in Sunbury?‑‑‑Yes.

PN1077

With those corrections, is your statement - are you the contents of your statement true and correct?‑‑‑Yes.

*** SHERRYN JONES-VADALA XN MS BURKE

PN1078

Thank you. I tender the statement and the attachments.

PN1079

PRESIDENT ROSS: I'll mark that exhibit ACTU8.

EXHIBIT #ACTU8 WITNESS STATEMENT OF SHERRYN JONES-VADALA DATED 06/05/2017

PN1080

MS BURKE: Thank you, Ms Jones-Vadala, just wait there and there'll be some questions.

CROSS-EXAMINATION BY MR WARD [10.31 AM]

PN1081

MR WARD: Good morning, Ms Jones-Vadala, can you hear me?‑‑‑Yes.

PN1082

Let me introduce myself. My name's Nigel Ward. I appear in this case for a number of employer associations. Can I just assure you straight away that I have no relationship or role with Ave Maria Secondary College. I don't represent them in these proceedings?‑‑‑Okay.

PN1083

I'm going to ask you some questions and it might be easiest if I as much as possible take you through your statement and ask you questions about your statement. Can I just understand first, before you had children your work history is - have you always been a teacher?‑‑‑No.

PN1084

What were you doing before you were teaching?‑‑‑I worked in the fitness industry, I worked in hospitality, varied casual employment.

PN1085

How long have you been teaching for now?‑‑‑I started teaching in 2003.

PN1086

Your teaching jobs, have they all been full-time or have they been part-time, what have they been?‑‑‑Prior to having children, all full-time.

PN1087

Am I right in saying you work in the Catholic education sector in South Australia?‑‑‑Victoria.

PN1088

I'll withdraw, sorry. The witness before South Australia, I apologise. I've just had an education on the Catholic education system in South Australia. Can I take you to your statement. Paragraph 3 you say:

*** SHERRYN JONES-VADALA XXN MR WARD

PN1089

My husband is the director of operations at Siena College.

PN1090

Is that a senior role at the college?‑‑‑Yes.

PN1091

Just for my benefit, it's under the Principal or what does the role involve?‑‑‑It's not Deputy Principal but it's fairly close so senior leadership.

PN1092

Thank you very much. Can you just tell me when did your children start school?‑‑‑I've got a daughter in Grade 2 and a daughter in Grade 1, so the youngest started last year and the eldest started the year before.

PN1093

Just for my knowledge, in Victoria, when do most children start school, what age?‑‑‑Approximately five but they can start at four if they're born before April.

PN1094

Did your children start when they were five?‑‑‑Yes.

PN1095

Can I take you to paragraph 5. You say:

PN1096

Prior to my children starting school I had returned to work at Ava Maria Second College or another school. I would have had to use paid childcare, I would have had no other viable option.

PN1097

Can I understand, were you contemplating - when you say there, "or another school", were you actually contemplating fairly early on leaving Ave Maria Secondary College?‑‑‑No, I want to stay.

PN1098

So is there any reason why you've referenced, "or another school"?‑‑‑Because I didn't know whether I was going to be able to negotiate work.

PN1099

And I don't want to sound judgmental, did you have a personal preference for staying with your children when they were young?‑‑‑I wanted to have a role in their lives, definitely.

PN1100

Okay and the issue with child care, was there any issues with availability or affordability of child care?‑‑‑With having to work, like working too many hours meant that the child care made it not worth working.

*** SHERRYN JONES-VADALA XXN MR WARD

PN1101

I understand. I understand. Now you explain by the time you get down to paragraph 8 about various periods of parental leave. Can I just check to see if I've got my mathematics right. As I've done my maths you were on parental leave from January 2009 through to February 2012?‑‑‑I'm just having a look at the statement. Yes.

PN1102

And you then go on to say in paragraph 9:

PN1103

In or about July 2011 I advised the college in writing that I intended to return to work.

PN1104

And I'm right in confirming that the process for doing that was the process under your enterprise agreement?‑‑‑Yes.

PN1105

Yes, and that's in the appendix 1 at the back of the agreement, is it?‑‑‑Appendix B.

PN1106

B, okay, and when you made that request to work part‑time work, and I've just turned to the last sentence in paragraph 11 of your statement, you said you were willing to work two to three days a week. At that stage you had not organised child care?‑‑‑I had been - put my child - children down on a waiting list.

PN1107

Right, and is child care hard to find where you live?‑‑‑Good child care is hard to find.

PN1108

So what do you mean by good child care; people with good reputations, or?‑‑‑People with good reputations, a good service, clean, the children are well looked after.

PN1109

So at that stage you'd put your name down on a waiting list. Did you tell the school at that stage whether or not you had a preference for which days?‑‑‑I gave them my preference. I said - because Monday to Friday were the days that child care preferred so I informed my principal that those were the better days, but said that I would negotiate.

PN1110

And you then say in paragraph 12:

PN1111

I was advised by the principal that she doesn't allow job share and there was no guarantee that part‑time work of the same two or three days each week was available as it was too hard to accommodate in the timetable. She advised that "If you want to do part‑time it's more likely to be spread out".

*** SHERRYN JONES-VADALA XXN MR WARD

PN1112

Can I just understand, I take it that each new school year the school develop a timetable for that year. How do they allocate teachers to that timetable? Is there any pecking order as to who gets allocated first?‑‑‑It's based on what staff are present, what their capabilities are, what the students have selected, particularly in the senior years and all the electives. So, different years have different needs. It depends on the student numbers in each year level. So essentially they look at everyone. They have teachers that they prefer in certain areas or who have expertise in certain areas, but it can change year to year based on the college needs.

PN1113

So there's no - the more senior teachers don't get allocated first?‑‑‑The senior teachers might be preferenced for VCE subjects for example, just due to their experience, but there wasn't necessarily a pecking order.

PN1114

You then say in paragraph 14:

PN1115

And in October 2011 the principal called me and offered me just over point 2FTE.

PN1116

When you say just over, how much over?‑‑‑One hour. So it was a day and an hour a week.

PN1117

A day and an hour, okay. And look, for a person who doesn't know much about the education system a day and an hour sounds strange but was the hour, the extra hour, to fit in with the timetable?‑‑‑Correct.

PN1118

So if I understand this, you were offered a day and an hour but you had to work four days a week. Is that right?‑‑‑That's correct, and also a different four days week 1 to week 2.

PN1119

Can we just take these slowly for me?‑‑‑Sure.

PN1120

So how many - I'll start again. Are all the periods in this school 80 minutes?‑‑‑At the time I was negotiating, yes.

PN1121

Is that a feature of Victoria?‑‑‑Quite a lot of schools have gone down that pathway.

*** SHERRYN JONES-VADALA XXN MR WARD

PN1122

So do I take it that - I'm trying to do my maths now - you had sort of an 80 minute - you were offered an 80 minute period on Monday and an 80 minute period on Tuesday; how was it actually offered?‑‑‑I was not given any particulars and I was told I couldn't find out any particulars until much later on. I was just told it was going to be spread out.

PN1123

So the only thing you knew was that it would be timetabled in week 1 and then timetabled in week 2?‑‑‑Yes.

PN1124

And I appreciate that week 1 and week 2 are different but your week 1s during the school year would have been the same week 1 and your week 2s would have been the same week 2?‑‑‑Unless they decided to make last minute changes.

PN1125

And do I take it that last minute changes sometimes occur because children don't - the number of people in a classroom might be smaller or larger than they expected?‑‑‑More to do with staff leaving.

PN1126

Okay so it's - - -?‑‑‑Someone might leave last minute.

PN1127

So we think John's coming back to teach but at the last minute John tells us he's not coming?‑‑‑That could be an example.

PN1128

All right. Now at paragraph 18 you say:

PN1129

It was not viable for me to accept my employer's proposal because the hours of work were not predictable.

PN1130

I'm just trying to understand what you mean by not predictable because I think you've just said that you were offered the same hours in week 1 and the same hours in week 2 of the timetable?‑‑‑I was - what I mean by not predictable is I didn't know what days they would be on, what time of the day. None of that information was given to me.

PN1131

And was it the case that it wasn't given to you because the school had not finished working out its timetables, or was the school just deliberately withholding it from you?‑‑‑I can't answer what they were thinking.

PN1132

No, that's fine. Now between that sort of July and October period are you still trying to organise child care?‑‑‑I was.

*** SHERRYN JONES-VADALA XXN MR WARD

PN1133

And I think you say here that you managed to secure some Monday and Friday child care?‑‑‑It was getting really difficult because I couldn't give them anything concrete and they said the only two days they could guarantee were Monday and Friday but they could only hold it for a period of time.

PN1134

And I take it that period was the month you've said in your statement?‑‑‑That's right. They had other people on the waitlist.

PN1135

And can I just understand did the school understand what you were doing with your child care arrangements at this time?‑‑‑Very clearly and she was not compassionate about it at all.

PN1136

And so she being who?‑‑‑The principal.

PN1137

You then say in paragraph 16 that the Principal came back to you and said:

PN1138

I can now offer you something else, working two of the same days each week and an extra day on the second week.

PN1139

So is that two days for the first week of the timetable and one day for the second week of the timetable?‑‑‑No, it meant two days one week, three days the other.

PN1140

So the Principal was at least considering your needs, that she came back and gave you another offer?‑‑‑But also she was desperate.

PN1141

By desperate you mean somebody had dropped out of the numbers for teachers during the year?‑‑‑Her Deputy Principle resigned and I had a very good record of teaching Year 12 biology.

PN1142

I take it that you would have accepted that if you had been able to organise childcare?‑‑‑Yes.

PN1143

Was it just too late in the day to organise child care?‑‑‑I had lost my place. I couldn't organise it. They gave it to someone else.

*** SHERRYN JONES-VADALA XXN MR WARD

PN1144

Did you look at other childcare centres?‑‑‑I looked - had already prior, had looked and I wasn't happy with most of them in the area, and the ones - most of them had said you had to have put your name down at birth. So any of the reasonable ones I couldn't get in. They said maybe in two years time.

PN1145

So the ones you were comfortable sending your children to, they were full?‑‑‑That's correct.

PN1146

Now can I take you to paragraph 19. You say:

PN1147

During 2013, I was undecided as to whether to try and seek a return to work part-time again.

PN1148

So you're on parental leave still at this time?‑‑‑Correct, unpaid parental leave.

PN1149

You say:

PN1150

I discussed with the IEU organiser for the college in about September and October 2013. Around this time I filled the form required by the college setting out my intentions for 2014.

PN1151

Can I just pause there and I don't want to pry into what advice the IEU organiser gave you but was there any consideration of raising dispute under your enterprise agreement about your situation?‑‑‑No, basically he said there's nothing he could do to help me.

PN1152

Then you say:

PN1153

Around this time I filled in the form required by the college setting out my intentions for 2014.

PN1154

Is that the enterprise agreement process you went through before or is that a different form?‑‑‑Different form provided by the college.

PN1155

So can I just understand this. I take it what you're saying is, is that prior to the beginning of any school year teachers fill out a form?‑‑‑Correct.

PN1156

What's on that form?‑‑‑What load you would like, whether you're going to take any leave, what subjects you'd like to teach, what year levels, just your preferences.

*** SHERRYN JONES-VADALA XXN MR WARD

PN1157

I take it that's one of the things that school uses to kind of work out how to juggle and put everybody into the timetable is it?‑‑‑It's one of the things they use, yes.

PN1158

If you go to paragraph 21, you say:

PN1159

I applied for other part-time positions in the Catholic education system but was not successful.

PN1160

How many jobs have you applied for?‑‑‑I can't remember how many at that time but I know over the years I could wallpaper a whole wall of the house I've applied for so many jobs.

PN1161

Well let's just focus on this period which is around late 2014(sic) to 2014. How many jobs did you apply for in that period?‑‑‑I can only take an educated guess and I would say at least eight to 10.

PN1162

Do I take it that part-time jobs are very hard to find in the Catholic education system?‑‑‑If you're not already employed at the school it's extremely hard, unless you're in niche areas.

PN1163

So can I just understand this then, so if I'm already full-time it's a lot easier to get a part-time job but simply applying from outside the school is much harder?‑‑‑Correct.

PN1164

What did you mean by niche areas?‑‑‑It might be a primary school position where they need a PE teacher and they only offer PE certain days of the week or performing arts. It might be careers counselling which I have since trained in. Areas that don't get defined by the full week and don't interfere with the timetable usually or balance out the timetable.

PN1165

So just by way of example, if you only needed the school counsellor Monday, Thursday, Friday, that would more naturally suit part-time?‑‑‑Correct.

PN1166

Did you apply for jobs outside the Catholic education sector at that time?‑‑‑Yes, I did.

PN1167

Same problem again?‑‑‑Yes, but I ended up working outside of teaching as a result.

*** SHERRYN JONES-VADALA XXN MR WARD

PN1168

I understand that. So could I just confirm that in the end you were on parental leave from 2009 through to 2014?‑‑‑Yes.

PN1169

Now in paragraph 25 you say:

PN1170

Due to the insecurity of my employment my husband and I have not been able to get a loan and we remain in rental accommodation.

PN1171

Trying not to pry into your private life but are you saying there that you can't get a loan because the bank wants both you and your husband to be in permanent work?‑‑‑Correct.

PN1172

So the bank aren't prepared to accept your husband's senior full-time position as being satisfactory to get a loan?‑‑‑Not for a loan of that amount, that is correct.

PN1173

So it's the - - -?‑‑‑We can get a smaller loan but not a property loan.

PN1174

So there's a certain amount of money you want to borrow and your husband's income alone isn't enough?‑‑‑At that point in time it wasn't.

PN1175

Has that changed?‑‑‑He's gone up the pay scale a few times. We haven't applied for a home loan in the last couple of years, so we'd have to go through the process so I wouldn't be - I'm not sure whether it would now.

PN1176

So you haven't applied for a few years?‑‑‑That's correct.

PN1177

If you'd just give me a moment, sorry. I think you said at the beginning that you've now got a permanent job?‑‑‑That's correct.

PN1178

How long have you had that job for?‑‑‑I only got offered it last month and it starts next year.

PN1179

Is that in the Catholic education system?‑‑‑Yes.

*** SHERRYN JONES-VADALA XXN MR WARD

PN1180

Given that you've told me it's very hard to get those jobs, what sort of job is it?‑‑‑It's careers counselling. So only because I did a Masters of Career Development while my kids were babies was the only reason I was considered, and it's one of the niche areas that gives the possibility of part-time but the - everyone's shocked that I got an ongoing part-time job and a new school for this position. It's extremely rare.

PN1181

That's because as you said these positions are very rare in that sector?‑‑‑That's correct. I was very, very lucky in the end.

PN1182

Ms Jones-Vadala, thank you, and I wish you and your husband luck going forward?‑‑‑Thank you.

PN1183

PRESIDENT ROSS: Any re-examination?

PN1184

MS BURKE: No, no, re-examination.

PN1185

PRESIDENT ROSS: Thank you for your evidence, Ms Jones-Vadala. You're excused.

<THE WITNESS WITHDREW [10.54 AM]

PN1186

MS BURKE: The next witness is Sascha Hammersley and I understand she's ready.

PN1187

MS HAMMERSLEY: Hello, this is Sascha.

PN1188

THE ASSOCIATE: Hi Sascha, my name is Danielle. I'm calling on behalf Ross J. I'm dialling you into the hearing. Can you confirm if there's anyone else in the room with you?

PN1189

MS HAMMERSLEY: No. No one else is here.

PN1190

THE ASSOCIATE: We will now recommence proceedings and I will proceed to read the affirmation. Can you please state your full name and address.

PN1191

MS HAMMERSLEY: Sascha Lee Hammersley, (address supplied).

<SASCHA LEE HAMMERSLEY, AFFIRMED [10.55 AM]

EXAMINATION-IN-CHIEF BY MS BURKE [10.55 AM]

*** SASCHA LEE HAMMERSLEY XN MS BURKE

PN1192

MS BURKE: Ms Hammersley, this is Kate Burke speaking from the counsel for the ACTU. Could you please repeat your full name?‑‑‑Sascha Lee(?) Hammersley.

PN1193

And your address?‑‑‑(Address supplied).

PN1194

And your occupation?‑‑‑I'm a lending connect banker with Westpac.

PN1195

Thank you, and have you prepared a statement for use in this proceeding?‑‑‑Yes, I have.

PN1196

Do you have a copy of that statement with you?‑‑‑Yes, I do.

PN1197

Is that statement dated 1 May and it's 15 paragraphs?‑‑‑Yes, it is.

PN1198

It has three attachments?‑‑‑That's correct.

PN1199

Are the contents of that statement true and correct?‑‑‑Yes, it is.

PN1200

Thank you. I tender the statement.

PN1201

JUSTICE ROSS: Mark that exhibit ACTU9.

EXHIBIT #ACTU9 WITNESS STATEMENT OF SASCHA HAMMERSLEY DATED 01/05/2017

PN1202

MS BURKE: Thank you, Ms Hammersley. Just wait there. There will be some questions.

CROSS-EXAMINATION BY MR FERGUSON [10.56 AM]

PN1203

MR FERGUSON: Good morning, Ms Hammersley. My name is Brett Ferguson. I represent the Australian Industry Group in these proceedings. Can you hear me?‑‑‑Yes, just.

PN1204

That's okay. I think some arrangements were just being made. Can you hear me now?‑‑‑Yes, I can, thank you.

*** SASCHA LEE HAMMERSLEY XXN MR FERGUSON

PN1205

That's good. Can I just start by asking you, Ms Hammersley, what does your husband do for a job?‑‑‑He works at the local hospital as a telephonist on the switchboard.

PN1206

Has he ever, to your knowledge, made a formal written request to his employer seeking part‑time work in order to accommodate his parenting responsibilities?‑‑‑No.

PN1207

Are you able to tell me what the amount of your typical weekly wage is?‑‑‑This - sorry, do you mean the full‑time wage or the part‑time wage?

PN1208

Part-time wage?‑‑‑My part-time wage after tax is roughly $39,000 a year.

PN1209

Does that fluctuate - well, does the amount you receive each week fluctuate or is it - - -?‑‑‑No, no.

PN1210

How many hours a week do you currently work?‑‑‑I currently work 24 hours a week.

PN1211

You say you work as a lending connect banker?‑‑‑Yes.

PN1212

What's involved in that role?‑‑‑So I take inbound calls to a call centre for servicing of home loans, personal loans, and I also do a lot of work with everything that they basically service, so all bank accounts and credit cards as well.

PN1213

Have you had to undertake any internal training in order to perform that role?‑‑‑Yes, I have.

PN1214

What's involved in that training?‑‑‑Generally in that training I would be asked to come in full‑time for a certain amount of time, depending on how long that particular training is. Generally it's at least one week and I would have to work 8.30 to 5 or 9 until 5.30 and just sit through the training to learn the job, I guess.

PN1215

How regularly does that training get undertaken?‑‑‑That's a very good question. It depends on how often I ‑ law changes, with legislative changes. It can be as often as once every six months or - I haven't actually had training for over three years now.

*** SASCHA LEE HAMMERSLEY XXN MR FERGUSON

PN1216

You would have undertaken that sort of training, say, when you first started the job, did you?‑‑‑Yes.

PN1217

I just want to take you to paragraph 9 of your statement just briefly. You there indicate when you returned to work after your first child, as I understand it. You were working full days on a Monday and a Thursday and then 10 to 2 on a Friday, is that right?‑‑‑Can I ‑ I'll just quickly have a look at that paragraph first and then ‑ ‑ ‑

PN1218

You're right?‑‑‑Yes, that is correct.

PN1219

Do you recall what time you started and finished work on a Monday and Thursday?‑‑‑I certainly do because that actually hasn't changed so that's 9 until 5.30.

PN1220

In your statement you refer to shift rostering or to shifts and the way they're allocated. I just want to understand how the rostering works. Is it right that a roster is sort of released periodically by a manager?‑‑‑So being a national company and such a large workforce, what happens is they - we have an area, workforce management, who predict how many calls are going to come into the call centre and they predict how many people are going to need to be on the phones at that particular time. They then write up the roster with input from our management and then it is released to us every six months.

PN1221

Do you understand that the hours of part‑time employees may vary based on what that roster provides?‑‑‑The - I'm sorry? I missed that question.

PN1222

You say in your statement that it seems that part‑timers find it easier to get the shifts that they want. But is it your understanding that a part‑time employee's hours may vary depending on what the roster actually provides?‑‑‑As long as a part‑timer says ‑ say, for instance, I say I want to work 24 hours a week. I'm then allocated only 24 hours a week and it is my understanding that the part‑time shifts are built first.

PN1223

Yes, but part‑time employees have to work at the times that are specified on the roster, do they?‑‑‑That is correct.

PN1224

How many employees are in your particular team doing the same role as you?‑‑‑In the same role as me? It's only an estimate; 80? And that's around the country.

*** SASCHA LEE HAMMERSLEY XXN MR FERGUSON

PN1225

How many in your office?‑‑‑In my office we're probably looking at about 40.

PN1226

Can I just take you to paragraph 10? Now, I understand in 2016 you agreed to work Tuesday instead of Thursday, is that right?‑‑‑Yes, I did.

PN1227

Do you know why your manager wanted you to make that change?‑‑‑Due to their call volumes on those particular days they found that Tuesdays were busier than Thursdays and they also wanted me to show some flexibility as I hadn't been showing flexibility in the past eight years and were requesting that I continue on to show that by changing a day.

PN1228

But you were willing to accommodate that, as your youngest child was attending kindy on a Thursday, is that right?‑‑‑Yes, I was willing to do that at that stage because I had the caring arrangements.

PN1229

So I'm just want to understand those caring arrangements. I take it that your second child commenced kindergarten at or around the commencement of 2016, is that right?‑‑‑That is correct.

PN1230

So during 2016 how many days of the week was your youngest child attending either school or childcare?‑‑‑My oldest child was attending five days a week at school. My youngest was ‑ my middle child was attending three days at school. And my baby was attending two days at day care and one day at home with my mother.

PN1231

Well, so just to be clear, I want to make sure we're not at cross‑purposes here. You changed days before the birth of your third child, didn't you?‑‑‑Yes, that's correct, sorry.

PN1232

That's okay?‑‑‑Sorry.

PN1233

Yes, so during that period between then and the changing role and when you had your third child, as I understand your then‑youngest child was attending school three days. Was the child also attending childcare?‑‑‑No, she had the Fridays with my mother.

PN1234

So three days - I see?‑‑‑So she had three days at school and one day with my mother, so I had one day on my own to attend (indistinct).

*** SASCHA LEE HAMMERSLEY XXN MR FERGUSON

PN1235

I understand. At paragraph 12 you refer to Westpac's policy about working part-time hours and a policy for working flexibly and you've attached those to your statement. Do you understand that those policies apply to you?‑‑‑Yes.

PN1236

I'll take you to paragraph 15 briefly. You there seem to imply that working part-time gives you time to take your children to sporting lessons and extra-curricular activities. What other co-curricular activities are you referring to there?‑‑‑SO the older two do piano lessons, so I take them to piano lessons and my youngest does - we just also to take them to doctors' appointments, et cetera.

PN1237

I take it that the sporting lessons that you're referring to and the piano lessons are things you've enrolled your children in because you believe they've beneficial?‑‑‑Absolutely.

PN1238

So you've chosen to enrol them in those events, those activities?‑‑‑Yes.

PN1239

Yes. Thank you, no further questions.

PN1240

MS BURKE: No re-examination, thank you.

PN1241

JUSTICE ROSS: Thank you for your evidence, Ms Hammersley, you're excused.

<THE WITNESS WITHDREW [11.06 AM]

PN1242

MS BURKE: Your Honour, the next witness is Jessica van der Hilst, who was scheduled for 12.

PN1243

JUSTICE ROSS: Yes.

PN1244

MS BURKE: She is able to be on the phone at 11.30.

PN1245

JUSTICE ROSS: Just bear with me for a moment. So we'll adjourn until 11.30.

PN1246

MS BURKE: Thank you.

SHORT ADJOURNMENT [11.07 AM]

RESUMED [11.32 AM]

*** SASCHA LEE HAMMERSLEY XXN MR FERGUSON

PN1247

MS BURKE: Thank you. The next witness is Jessica van der Hilst.

PN1248

THE ASSOCIATE: Can you please state your full name and address.

PN1249

MS VAN DER HILST: Yes, my name is Jessica van der Hilst and my address is (address supplied).

<JESSICA VAN DER HILST, AFFIRMED [11.33 AM]

EXAMINATION-IN-CHIEF BY MS BURKE [11.33 AM]

PN1250

MS BURKE: Jessica, it's Kate Burke, counsel for the ACTU. You can hear me all right?‑‑‑I can hear you okay.

PN1251

Hello. Can you please repeat your full name for the transcript?‑‑‑Jessica Kathryn van der Hilst.

PN1252

Your address?‑‑‑(Address supplied).

PN1253

Your occupation?‑‑‑I'm the internal communications specialist at IAG.

PN1254

Thank you, and have you prepared a statement for the purposes of this proceeding?‑‑‑Yes.

PN1255

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

PN1256

Is that statement dated 6 May 2017 and it's 14 paragraphs?‑‑‑Yes, it is.

PN1257

There's one attachment?‑‑‑Correct - there's two attachments, there's the enterprise agreement, I beg your pardon, and the email.

PN1258

Yes, thank you - there's two attachments. Are the contents of that statement true and correct?‑‑‑Yes, they are.

PN1259

Thank you. I tender that statement.

*** JESSICA VAN DER HILST XN MS BURKE

PN1260

JUSTICE ROSS: I mark that exhibit ACTU10.

EXHIBIT #ACTU10 WITNESS STATEMENT OF JESSICA VAN DER HILST DATED 06/05/2017

PN1261

MS BURKE: Thank you, Ms van Der Hilst. Just wait there and there will be some questions?‑‑‑Sure.

CROSS-EXAMINATION BY MR FERGUSON [11.35 AM]

PN1262

MR FERGUSON: Good morning, Ms van der Hilst, my name's Brent Ferguson. I represent the Australian Industry Group and I have a small number of questions for you. Can you hear me?‑‑‑I can hear you. Hi Brent.

PN1263

I just want to know, do you work in George Street office of AiG in the city?‑‑‑Yes, 388 George Street, correct.

PN1264

Can I just ask, what does your husband do for employment?‑‑‑He is working at Maersk Line Australia. He is currently working as an EDI coordinator, so with a lot of electronic data interface work for a shipping organisation.

PN1265

I understand that you work partly from home and partly from the office. What time do you start work on the days that you're in the office?‑‑‑When I go into the office I normally arrive at I would say 10 past 8, yes, that's my normal start time.

PN1266

Is that when you start work, 10 past 8?‑‑‑Probably ends up being about 20 past 8 by the time I get my feet under the desk.

PN1267

So a little bit of flexibility?‑‑‑Yes.

PN1268

What are the days your work from home? Do you have set specific start and finish times or is there a degree of flexibility around that also?‑‑‑So yes, I have set start and finish times but I do have access to flexibility on those times. So it's based around the times that I can drop my child off at day care, and then - but if there's a change in needs, like if the carer needs to do shorter hours or if I need to take them to a doctor's appointment then I'm able to let my manager know and be able to change the start or end times accordingly.

PN1269

But you at your own election can change the start times or the finish times, is that right?‑‑‑Yes, as long as my manager okays it, yes.

*** JESSICA VAN DER HILST XXN MR FERGUSON

PN1270

Do they have to approve it on each occasion do they?‑‑‑Yes, I mean if it's like a 15 minute window then I don't need to talk to them about that but if there's something where it's half hour, hour sort of difference then I certainly make sure it's all okay with my manager on each occasion.

PN1271

Thank you. I understand you work in the internal communications team at AiG?‑‑‑Yes.

PN1272

How many employees are engaged in the internal communications team in doing a role such as yours?‑‑‑Well approximately 20 I'd say, not in necessarily the exact same type of role but in the internal communications team probably about 20.

PN1273

Do you know how many would be doing the same sort of role that you're performing?‑‑‑Roughly six or actually no, fewer than that, probably four doing my type of role. There are other roles that are similar but probably at a higher level.

PN1274

Let me know if you don't know the answer to this but do you know approximately how many employees are employed by AiG in Australia?‑‑‑In Australia it's I think roughly 10,000. Roughly.

PN1275

It's actually a multinational business though isn't it?‑‑‑Correct.

PN1276

Your role I assume doesn't involve any external customer interaction does it?‑‑‑No, no, it's focused on employees.

PN1277

Now you've attached to your statement some emails between yourself and your manager concerning your return to work in 2016?‑‑‑Yes.

PN1278

You have those with you, I assume?‑‑‑Yes, I do.

PN1279

I'm just going to take you briefly to the email from (indistinct) dated 19 May 2016. Can you turn to that?‑‑‑Yes.

PN1280

That's the email, to be clear, that specifies:

*** JESSICA VAN DER HILST XXN MR FERGUSON

PN1281

No worries, I'll put your first day back as Monday, 25 July. I think you mentioned you had lined up care for Tuesdays. Did you want to work Mondays to Wednesdays or Tuesdays to Thursdays. I don't mind as long as you're here on Wednesdays please.

PN1282

Do you know why your manager wanted you there on a Wednesday?‑‑‑Yes, my manager was also working flexibly. She worked four days per week and Wednesday was the day she wasn't in the office, so I - she wanted to make sure that I was in the office on the day she wasn't, so that we had at least one person from our area available throughout the week.

PN1283

So there was a need for operational reasons within your team to coordinate your two hours of work, is that right?‑‑‑Yes.

PN1284

In 2016 you increased your days of work to four days per week at your manager's request. Do you know why the manager made that request?‑‑‑Yes, so between May and the beginning of - May 2015 and the beginning of 2016, I had a change of manager and my new manager didn't work on Fridays and my established working pattern also didn't work on Fridays, so we had a day where we didn't have any coverage. So my manager and my (indistinct) manager both put in for one of myself or my manager to be able to start working on the Friday. And so I was able to arrange day care on a Friday and that's why I began working on a fourth day, on the Friday.

PN1285

Thank you, no further questions.

PN1286

PRESIDENT ROSS: Any re-examination?

PN1287

MS BURKE: No, no re-examination, thank you.

PN1288

PRESIDENT ROSS: Thank you for your evidence, Ms van der Hilst, you're excused.

<THE WITNESS WITHDREW [11.41 AM]

PN1289

MS BURKE: Your Honour, the next witness unfortunately can't be brought forward because she's got an obstetrician appointment.

PN1290

PRESIDENT ROSS: No, that's fine.

PN1291

MS BURKE: What I thought I could do is tender the statements of those witnesses who are not required for cross-examination.

*** JESSICA VAN DER HILST XXN MR FERGUSON

PN1292

PRESIDENT ROSS: Yes.

PN1293

MS BURKE: The first of those is Michelle Ogulin, O-g-u-l-i-n. Her statement is dated 1 May 2017 and there are five attachments.

PN1294

PRESIDENT ROSS: Mark that exhibit ACTU11.

EXHIBIT #ACTU11 WITNESS STATEMENT OF MICHELLE OGULIN DATED 01/05/2017, TOGETHER WITH FIVE ATTACHMENTS

PN1295

MS BURKE: Thank you, the next is Monica Bowler, B-o-w-l-e-r. Her statement is dated 21 April 2017, there's one attachment.

PN1296

PRESIDENT ROSS: Mark that exhibit ACTU12.

EXHIBIT #ACTU12 WITNESS STATEMENT OF MONICA BOWLER DATED 21/04/2017, TOGETHER WITH ONE ATTACHMENT

PN1297

MS BURKE: The next is of Nicole Mullan - M-u-l-l-a-n. Her statement is dated 3 May 2017 and there are five attachments.

PN1298

PRESIDENT ROSS: Exhibit ACTU13.

EXHIBIT #ACTU13 WITNESS STATEMENT OF NICOLE MULLAN DATED 03/05/2017, TOGETHER WITH FIVE ATTACHMENTS

PN1299

MS BURKE: The next is Andrea Sinclair, her statement is dated 8 May 2017 and there are nine attachments.

PN1300

PRESIDENT ROSS: Exhibit ACTU14.

EXHIBIT #ACTU14 WITNESS STATEMENT OF ANDREA SINCLAIR DATED 08/05/2017, TOGETHER WITH NINE ATTACHMENTS

PN1301

MS BURKE: The next witness is Perry Anderson, his statement is dated 27 April 2017, and there are two attachments.

PN1302

PRESIDENT ROSS: ACTU15.

EXHIBIT #ACTU15 WITNESS STATEMENT OF PERRY ANDERSON DATED 27/04/2017, TOGETHER WITH TWO ATTACHMENTS

PN1303

MS BURKE: The final statement to tender is from witness 1, that person's identity - sorry, your Honour.

PN1304

PRESIDENT ROSS: We'll adjourn now.

LUNCHEON ADJOURNMENT [11.42 AM]

RESUMED [2.01 PM]

PN1305

PRESIDENT ROSS: We were just marking Witness 1.

PN1306

MS BURKE: Yes, Witness 1. Witness statement dated 2 May 2017 with five attachments.

PN1307

PRESIDENT ROSS: Exhibit ACTU16

EXHIBIT #ACTU16 WITNESS STATEMENT OF WITNESS 1 DATED 02/05/2017, TOGETHER WITH FIVE ATTACHMENTS

PN1308

MS BURKE: The final statement that the ACTU was to rely on was of Julia Johnson. That statement is now withdrawn. Now I call Ashlee Czerkesow, who I understand will also give evidence by phone.

PN1309

PRESIDENT ROSS: Thank you.

PN1310

MS CZERKESOW: Good afternoon, Ashlee speaking.

PN1311

THE ASSOCIATE: Hello Ashlee, my name is Danielle. I'm calling on behalf of Ross J. I'm dialling you into the hearing. Can you confirm if there's anyone else in the room with you?

PN1312

MS CZERKESOW: No, there's not.

PN1313

THE ASSOCIATE: Thank you. So we'll now recommence proceedings and I'll proceed to read the affirmation. Please state your full name and address.

PN1314

MS CZERKESOW: Ashlee Simone Czerkesow, (address supplied).

<ASHLEE SIMONE CZERKESOW, AFFIRMED [2.03 PM]

EXAMINATION-IN-CHIEF BY MS BURKE [2.03 PM]

PN1315

MS BURKE: Ms Czerkesow, it's Kate Burke, counsel for the ACTU speaking. Can you hear me?‑‑‑Yes, I can.

PN1316

Can I ask you please to restate your name for the Commission?‑‑‑Ashlee Simone Czerkesow.

PN1317

Your address?‑‑‑(Address supplied).

PN1318

Your occupation?‑‑‑Customer service.

PN1319

Have you prepared a statement for use in this proceeding?‑‑‑Yes, I have.

PN1320

Do you have a copy of that statement with you?‑‑‑Yes, I do.

PN1321

Is that statement dated 8 May 2017 and it's 31 paragraphs?‑‑‑Yes, that's correct.

PN1322

There are two attachments to that statement?‑‑‑Yes.

PN1323

Ms Czerkesow, can I just confirm that in your current job you're employed under the Clerks Award?‑‑‑That's correct.

PN1324

With that modification or that additional information, are the contents of your statement true and correct?‑‑‑Yes, that is correct.

PN1325

I tender that statement, your Honour.

PN1326

PRESIDENT ROSS: I'll mark that exhibit ACTU17.

EXHIBIT #ACTU17 WITNESS STATEMENT OF ASHLEE SIMONE CZERKESOW DATED 08/05/2017

*** ASHLEE SIMONE CZERKESOW XN MS BURKE

PN1327

MS BURKE: Thank you, Ms Czerkesow, please just wait there a moment and there'll be some questions.

CROSS-EXAMINATION BY MR WARD [2.05 PM]

PN1328

MR WARD: Ms Czerkesow, can you hear me?‑‑‑Yes, I can.

PN1329

My name's Nigel Ward, I appear in this matter for a number of employer associations and I have a relatively small number of questions for you. If at any stage you can't hear me just please let me know. When you were in the customer service centre, how many employees were in the centre working with you?‑‑‑Sorry, did you say how many employees were working with me?

PN1330

Yes, what number of employees worked in the centre with you?‑‑‑At the time of maternity leave there was about 60 to 80 employees across two sites.

PN1331

When you left how many were working there?‑‑‑When I - when I finished the role and left the company, do you mean?

PN1332

Yes, yes, I do?‑‑‑There was approximately 20.

PN1333

Of the 20 how many were full-time?‑‑‑There would have been about approximately 15.

PN1334

Were the other five people part-time employees?‑‑‑That's correct.

PN1335

Where there any casual employees in the call centre?‑‑‑No, there wasn't.

PN1336

Have you got your statement in front of you?‑‑‑Yes, I do.

PN1337

Could I ask you to go to paragraph 4 and the last sentence of paragraph says this:

PN1338

I was on a rotating roster so my starting and finishing times changed each week.

*** ASHLEE SIMONE CZERKESOW XXN MR WARD

PN1339

I'm just going to ask you some questions about the rostering. Were you working day work when you were on roster?‑‑‑Yes, the roster commenced on a 8 am start to anywhere up to an 11 am start and then finished anywhere from 4 - 4, 4.30 pm finish to an 8 pm finish.

PN1340

I take it when you say that your start and finish times changed. The start might have changed somewhere between 8 and 11?‑‑‑That is correct.

PN1341

Finish between 4.30 and 8?‑‑‑That is correct.

PN1342

Did you start and finish times change each week or each day? On what basis did they change?‑‑‑They changed weekly over a six week rotating roster.

PN1343

How much notice did you have for the roster?‑‑‑Six weeks.

PN1344

Can you explain a little bit about why they changed? Why you didn't stay on the same hours?‑‑‑Sorry, could you repeat the question?

PN1345

Do you know why your hours changed over the six week roster?‑‑‑As far as I am aware it was due to making sure that there was enough staff in the busy periods and the peak periods during the day.

PN1346

What were the busy periods during the day?‑‑‑The busy periods at that time were before working hours, so between 8 and 9.30, then again through lunchtime period because we are a national company so we had to cover Australia wide. So across lunchtime from 12 to 2 and then again in the evening once people had finished work, so between 6 and 8.

PN1347

Were the change in hours changed simply to share it around everybody in the workforce?‑‑‑That is correct.

PN1348

Were any days busier than other days?‑‑‑Yes, normally earlier in the week was busier but then the financial period we had a much busier time during financial year, so end of June through to August, September.

PN1349

Would there have been more staff working during those busy times than otherwise?‑‑‑No. No, that's correct.

PN1350

So we had the same 20 people rostered in the same way on the six week roster?‑‑‑That's correct.

*** ASHLEE SIMONE CZERKESOW XXN MR WARD

PN1351

Can I take you to paragraph 9 of your statement and in paragraph 9 you discuss the company's proposal to work part-time, five hours a day, five days a week on a rotating weekly roster of different starting and finish times. Can you just explain there if you were working five hours a day, again, what would have driven the rotating start or the rotating finishing times?‑‑‑Again, that was to make sure that there was enough staff in each period of time.

PN1352

So it's the same as the regular roster?‑‑‑That's as far as I was concerning.

PN1353

Yes, that's fine. That's fine. If you go down to paragraph 10, there is then a proposal discussed as I understand it to fix your roster between 9 and 2, Monday to Friday. Is that right?‑‑‑Yes, that's correct.

PN1354

So that is fixed rather than differing start and finishing times?‑‑‑That's correct.

PN1355

And how many people in the call centre - sorry, withdraw that - how many people in the contact centre other than you have fixed start and finishing times like that?‑‑‑A mix of others.

PN1356

Who are they?‑‑‑Sorry, could you repeat that?

PN1357

Sorry - who were they?‑‑‑They were in the exact same position that I was, that I was in. the only difference is that they had come from another call centre group and they were already - that was already stipulated in their contracts, so their contracts couldn't be changed when they moved into our contact centre.

PN1358

And by saying they were in the same situation you were in, are you saying they were women?‑‑‑Sorry, could you just repeat that?

PN1359

Were they both women?‑‑‑Yes, they were.

PN1360

Were they both returning from having children?‑‑‑One had been made redundant and had come - and had been rehired and another had children but hadn't come from maternity leave. Her children were late primary school.

PN1361

Now, tell me if my mathematics is wrong but as I understand it, you reluctantly accepted the 9 am to 2 pm proposal. Am I right in saying that you worked those hours between August 2012 until you finally left the company?‑‑‑For the most part, yes.

*** ASHLEE SIMONE CZERKESOW XXN MR WARD

PN1362

And my rough maths tells me that's about four-and-a-half years?‑‑‑That is correct.

PN1363

Did you look for another job during those four-and-a-half years?‑‑‑I had looked for other positions within the company but no, not outside of the company.

PN1364

No further questions - thank you very much for your - thank you?‑‑‑Thank you.

PN1365

MS BURKE: There's no re-examination, your Honour.

PN1366

JUSTICE ROSS: Thank you for your evidence, Ms Czerkesow. You're excused.

<THE WITNESS WITHDREW [2.14 PM]

PN1367

MS BURKE: Your Honour, that is the evidence of the ACTU. Was there any questions?

PN1368

JUSTICE ROSS: There will be next week.

PN1369

MS BURKE: I'll be ready for them.

PN1370

JUSTICE ROSS: Next witness?

PN1371

MR FERGUSON: The next witness is Ai Group's Janet O'Brien.

PN1372

JUSTICE ROSS: Should we deal with - just before we call Ms O'Brien, why don't we deal with the issues associated with her witness statement?

PN1373

MS BURKE: Your Honour - sorry, I should have said that I withdraw the objection to her witness statement.

PN1374

JUSTICE ROSS: So same with Mr Lappin?

PN1375

MS BURKE: Well, the objection to Mr Lappin's statement was the employer survey.

*** ASHLEE SIMONE CZERKESOW XXN MR WARD

PN1376

DEPUTY PRESIDENT GOOLEY: What about Mr Ross and - - -

PN1377

JUSTICE ROSS: Yes.

PN1378

MS BURKE: We are in a deal-making period with regard to Mr Ross.

PN1379

JUSTICE ROSS: That's fine. We'll leave it to you.

PN1380

THE ASSOCIATE: So I'll get you to please state your full name and address.

PN1381

MS O'BRIEN: Janet Elizabeth O'Brien, (address supplied.)

<JANET ELIZABETH O'BRIEN, SWORN [2.15 PM]

EXAMINATION-IN-CHIEF BY MR FERGUSON [2.15 PM]

PN1382

MR FERGUSON: Thank you, Ms O'Brien. Please state your full name again for the transcript?‑‑‑Janet Elizabeth O'Brien.

PN1383

Your address?‑‑‑(Address supplied).

PN1384

Have you prepared a statement for the purposes of these proceedings?‑‑‑I have indeed.

PN1385

Do you have a copy of that statement with you?‑‑‑I do.

PN1386

Is that statement some 47 paragraphs in length?‑‑‑It is.

PN1387

Does it contain one attachment?‑‑‑Yes.

PN1388

Is it dated 30 October 2017?‑‑‑Yes.

PN1389

Is it true and correct to the best of your knowledge?‑‑‑Yes.

PN1390

I tender that.

*** JANET ELIZABETH O'BRIEN XN MR FERGUSON

PN1391

JUSTICE ROSS: Exhibit Ai Group 1.

EXHIBIT #AIGROUP1 WITNESS STATEMENT OF JANET O'BRIEN DATED 30/10/2017

PN1392

MR FERGUSON: Have you also prepared a supplementary witness statement?‑‑‑I have.

PN1393

Do you have a copy of that with you also?‑‑‑I do.

PN1394

Is it some two paragraphs in length and dated 11/12/2017?‑‑‑It is.

PN1395

Is it true and correct to the best of your knowledge?‑‑‑It is.

PN1396

I tender that also.

PN1397

JUSTICE ROSS: Exhibit Ai Group 2.

EXHIBIT #AIGROUP2 SUPPLEMENTARY WITNESS STATEMENT OF JANET O'BRIEN DATED 11/12/2017

PN1398

MR FERGUSON: The witness is available for cross-examination.

CROSS-EXAMINATION BY MS BURKE [2.16 PM]

PN1399

MS BURKE: Thank you, Ms O'Brien. I just want to ask you some questions about the working arrangements at Conplant?‑‑‑Yes.

PN1400

I understand you've got 85 employees?‑‑‑That's right.

PN1401

About 66 of them are employed under your enterprise agreement?‑‑‑Yes.

PN1402

The rest are employed under the clerks' award and the sales award?‑‑‑We have a number of (indistinct) managers as well.

PN1403

And how many of those do you have?‑‑‑Probably 15.

*** JANET ELIZABETH O'BRIEN XXN MS BURKE

PN1404

All right, well, my questions first are just going to be about the agreement and the employees under the agreement. Now, I understand based on your enterprise agreement - do you have a copy of that in the witness box with you?‑‑‑I do.

PN1405

So looking at clause 4.1, your plant is open 18 hours or its operational 18 hours a day Monday to Friday?‑‑‑That's the span of hours.

PN1406

Yes?‑‑‑We actually are open from - it varies state to state but normal working hours for the EBA would be 7 am till 3.30 pm.

PN1407

Right, so although the span of hours in the agreement starts at 6 am and finishes at midnight, do you have people there working that whole time?‑‑‑No, we don't - not as a general rule.

PN1408

But you have a morning shift and an afternoon shift?‑‑‑No - 7 am till 3.30 pm.

PN1409

All right?‑‑‑Occasionally the drivers will start early.

PN1410

Right, so what happens during the time when nobody is there but the plants are open?‑‑‑They're not open. They close, generally, in the afternoon. So they would normally close by about 5 pm.

PN1411

So the reference then in clause 4.1 to the span of ordinary hours, which is 6 to midnight and then on Saturdays, 6 am to 5 pm - they are hours when you may require people to work in certain situations?‑‑‑That's right.

PN1412

But ordinarily the working hours are 7 am till - I think you said 3.30?‑‑‑3.30 pm, yes.

PN1413

If you look down the page there at 4.3.3, there is a reference to an afternoon shift and a penalty rate that's payable for an afternoon shift?‑‑‑Yes.

PN1414

So how - but you've answered that there is really just the one shift?‑‑‑Yes.

PN1415

So when would an afternoon shift penalty be payable?‑‑‑Well, I've been at the business for nine years and it hasn't been used in that time.

PN1416

What is the intention, then, of having that there?‑‑‑It's for flexibility - - -

*** JANET ELIZABETH O'BRIEN XXN MS BURKE

PN1417

Right, but - - -?‑‑‑ - - - for if business conditions change but it's not normally used.

PN1418

It's to give you the option if it's necessary?‑‑‑That's right.

PN1419

All right. You've also explained - sorry, no you haven't explained. In the enterprise agreement, I'm looking at 4.3.2, subparagraph (d). You've stated that the shift roster can be changed at any time to enable the functions of the company to be carried on where an employee is absent due to illness or emergency. But as I understand it the shift roster in terms of the hours that are set, they are what they are so in terms of the last-minute changes that this clause would entitle you to make, is that about who is actually working on the roster?‑‑‑No, everyone is normally working 7 am to 3.30 pm.

PN1420

So in what circumstances might you then change the roster to deal with illness or emergency contemplated by this clause?‑‑‑Well, if an employee couldn't make it in in the morning because of an illness they may come to work later and they start at the time that they start.

PN1421

Does that change the roster or is that just ‑ ‑ ‑?‑‑‑No, it doesn't.

PN1422

Then in those - but I suppose what I'm trying to understand is when would you ever change the roster at any time in the way that this clause seems designed to contemplate?‑‑‑In my experience we haven't needed to.

PN1423

So again it's in there in case you need to make some last‑minute changes?‑‑‑Yes, yes.

PN1424

You've also got employees that are on call or you've got a provision for employees to be on call in the agreement?‑‑‑Yes.

PN1425

Are employees regularly on call?‑‑‑It depends on the nature of the work. So for example if we have 24‑hour day work, perhaps in Queensland, some of the Queensland employees may be on call but not in every state.

PN1426

So you don't have something like a rotating roster of employees being on call where, you know, every six weeks you might be on call for a couple of days?‑‑‑No.

PN1427

It's on an as needs basis?‑‑‑Absolutely, and sometimes it's not required.

*** JANET ELIZABETH O'BRIEN XXN MS BURKE

PN1428

For those employees for whom it is required they are entitled to a callout allowance of, I think, $55 a day or something like that?‑‑‑Yes, that's correct.

PN1429

That's to enable them to be ready for work?‑‑‑Yes.

PN1430

Are there requirements about what that means, being ready for work, if you're on call?‑‑‑Yes, it means that they can't drink alcohol, that they have to be prepared to attend site and conduct whatever work that needs to be conducted. Quite often the problem can be solved by telephone. So they will try and resolve it remotely first and then travel to site if necessarily.

PN1431

So it's a $55 sort of non‑drinking penalty rate?‑‑‑And convenience.

PN1432

Understood. I mean, if it's on a weekend or something like that?‑‑‑Yes, and sometimes it ‑ ‑ ‑

PN1433

You would have people on call on the weekend?‑‑‑Yes, sometimes it crosses seven days, yes.

PN1434

So staying with the agreement, I noticed that it covers some provisions that are in the National Employment Standards, so annual leave, sick leave. And there are others in the National Employment Standards that aren't also in this agreement, so parental leave for example is not in this agreement. And the right to request a flexible working arrangement under section 65, that's not in the agreement either. You do have an individual flexibility arrangement clause in the agreement and that's at clause 3.15. Was this included because in the award or awards that you need to measure this agreement against for the purposes of satisfying the BOOT that there is an IFA clause, if I can call it that?‑‑‑We have one employee who has an individual flexibility agreement, so yes.

PN1435

But you've included it in the agreement because you thought it was necessary?‑‑‑Yes, but we would consider all requests to work flexibly on a case by case basis. So even if it wasn't in the agreement, for any employee on a case by case basis.

PN1436

I see. And other parts of the agreement, so looking here at clause 5.5.5, you refer to or there's a reference to flex work?‑‑‑Yes.

*** JANET ELIZABETH O'BRIEN XXN MS BURKE

PN1437

Is that a reference to the sort of agreement that you might make under clause 3.15 or is it any flexible arrangement made formally, informally, under this clause, under a section 65 arrangement?

PN1438

MR FERGUSON: I object.

PN1439

MS BURKE: I'm sorry, I'm asking six questions at once.

PN1440

MR WARD: Yes, and about the effect of this agreement in terms of what it actually provides for which is really a legal question.

PN1441

JUSTICE ROSS: Well, you can ask how it operates in practice.

PN1442

MR WARD: Yes.

PN1443

MS BURKE: Your Honour, and this agreement was, as I understand it, Ms O'Brien was very much involved in this agreement. So I'm not asking to draw any legal conclusions, just explain how it operates in practice. But I'll go back to asking one question at a time, or I'll start asking one question at a time, more accurately. I was asking you about clause 4.4.5?‑‑‑Yes.

PN1444

A reference there to:

PN1445

No overtime payment for flexible hours.

PN1446

And there's a description of working flex time. What does that mean?‑‑‑Well, we have an employee who works in Hunter Valley called David Pearce.(?) David works specific days a week. If David wants to change those days a week we will accommodate him. If we want to change those days a week we pay additional overtime to accommodate the increase in his working hours.

PN1447

Was that arrangement with David reached pursuant to clause 3.15 or some other arrangement?‑‑‑It was another arrangement.

PN1448

So clause 4.5.5 could refer to ‑ it doesn't really matter how the flexible agreement was reached, it's any type of flexible agreement?‑‑‑Yes, yes.

*** JANET ELIZABETH O'BRIEN XXN MS BURKE

PN1449

I understand that. You've given some evidence that you were required to give a number of undertakings to the Fair Work Commission concerning this agreement?‑‑‑That's correct.

PN1450

Two out of four of those relate to part‑time work and casual work. Is that because those matters were in the awards that the Commission was looking at for the purposes of satisfying the BOOT?‑‑‑Yes.

PN1451

But you didn't think it was necessary to include them in your agreement?‑‑‑We don't generally have casual employees or many part‑time employees so the agreement - it's silent because it doesn't apply generally to our employee population.

PN1452

So it was just something that you didn't have regard to as necessary for your workforce?‑‑‑Yes.

PN1453

You've given some evidence about an employee who is working under a ‑ who is working part‑time, I'm sorry?‑‑‑Yes.

PN1454

She made a formal request for part‑time work. Was that made with section 65, do you know?‑‑‑Shelby(?) came into the branch after ‑ or during her maternity leave with her baby and asked to work part‑time and we said we would absolutely consider that. We are a small business so we know all employees. It's first name terms. So we asked Shelby to put in writing in an email what she actually wanted so that we could consider it properly.

PN1455

So when in your witness statement you describe it as formal, you mean it was in writing?‑‑‑Yes.

PN1456

She is engaged under the Clubs Award? She's not an award‑free?‑‑‑She's Private Clerks.

PN1457

I see, right. Is she the part‑timer that's referred to in your supplementary statement? I think there's one female ‑ ‑ ‑?‑‑‑Yes.

PN1458

She recently ‑ well, I'm not sure how recently it was, actually, but she took three months maternity leave?‑‑‑That's right.

PN1459

What did you do with her role while she was on maternity leave?‑‑‑We had a replacement on a casual basis.

*** JANET ELIZABETH O'BRIEN XXN MS BURKE

PN1460

Was this somebody from within the organisation or somebody you brought in from outside?‑‑‑Someone we brought in from outside.

PN1461

What happened to that person after Shelby, if I can call her that, came back to work?‑‑‑She left so ‑ ‑ ‑

PN1462

Was Shelby ‑ without any disrespect to her by assuming this familiarity, was she working full‑time before she went on maternity leave?‑‑‑She was.

PN1463

Now she's working four days a week one week, and the second week she works four days a week but she has an hour off on Wednesdays and Thursdays, is that right?‑‑‑That's right, yes.

PN1464

That hour is between 2.30 and 3.30?‑‑‑That's right.

PN1465

Does she come back to work at 3.30?‑‑‑No, she's finished. She finishes for the day at 2.30.

PN1466

So her ordinary hours would be 7 to 3.30 or ‑ ‑ ‑?‑‑‑Shelby wouldn't normally start at 7 am. She would alternate between the manager.

PN1467

But 3.30 is her ordinary finishing time?‑‑‑Yes.

PN1468

It's just been pulled back by an hour every second week on two days?‑‑‑That's correct. That's to take account of her childcare arrangements.

PN1469

Thank you. The branch manager who she works with, he is willing to work within those parameters?‑‑‑He is.

PN1470

Do you consider that she's lucky to have that willingness of the branch manager to do that?‑‑‑Matthew is a reasonably inexperienced manager. He's flexible. He's new to the business. So I don't necessarily consider it lucky but I think as a business we have good people. We take a lot of care with our equipment so I like to think it's less luck and more judgement.

PN1471

Judgement because you've hired somebody ‑ ‑ ‑?‑‑‑Yes.

*** JANET ELIZABETH O'BRIEN XXN MS BURKE

PN1472

‑ ‑ ‑ who is open-minded, flexible and so on?‑‑‑We take time and care to do that.

PN1473

I understand. Do you consider that this arrangement is working well?‑‑‑It has, because we had a trial basis so that contributed to a common understanding of what was expected going forward. We have had some issues around the handover process. It's been problematic on occasions.

PN1474

Is that referred to in your statement in paragraph 33 at the last dot point? There's three dot points there?‑‑‑Yes.

PN1475

Have you - did you give Shelby and I think is it Matthew who's the branch manager?‑‑‑Yes.

PN1476

Were they given any training on how to manage this new arrangement?‑‑‑No, but since Shelby's returned to work we've sent her on two courses, so she's been on a two day resilience training course. She lost her mum last year and it was a difficult time for her, and she's also been on an effective communication course.

PN1477

What about Matthew?‑‑‑No, Matthew has my support on a day to day basis so in terms of considering her request for part-time working and in terms of managing that process, we came up with a template that would allow him to structure that in the way that reduces operational difficulties.

PN1478

Is that designed to improve the communication between the two of them?‑‑‑Yes.

PN1479

Overcome these handover issues that you've identified?‑‑‑Yes.

PN1480

Now you would accept wouldn't you that handover issues generally will arise if an employee is, for example, on annual leave? So if somebody's going to be away for a couple of weeks?‑‑‑Yes.

PN1481

You can't really ever have perfect continuity in any business?‑‑‑Yes.

PN1482

You've indicated also that Shelby might need to change her current arrangement with you because of the availability of child care?‑‑‑(No audible reply).

PN1483

Do you accept that if Complan is unable to accommodate what changes she needs, she may need to leave her job?

*** JANET ELIZABETH O'BRIEN XXN MS BURKE

PN1484

MR FERGUSON: I object to that. You're asking the witness to speculate on what she may need to do. You can't give that evidence.

PN1485

MS BURKE: Your Honour, I am asking the witness to speculate because the witness has speculated about what the impact of that would be.

PN1486

PRESIDENT ROSS: But not on the employee.

PN1487

MS BURKE: No, but - - -

PN1488

PRESIDENT ROSS: You're asking her to speculate about what the employee's reaction would be in those circumstances.

PN1489

MS BURKE: The witness has given evidence that - well speculated about what the impact would be if the employee needs to change her working arrangements.

PN1490

PRESIDENT ROSS: Yes, take me to that bit.

PN1491

MS BURKE: Paragraph 46 and then following there is discussion about the impact on the company.

PN1492

PRESIDENT ROSS: No, no, I accept that she can give evidence about the impact on the company. But you're asking her to speculate about what the employee would do.

PN1493

MS BURKE: I'll ask the question a different way.

PN1494

PRESIDENT ROSS: Right.

PN1495

MS BURKE: Can I ask you to assume that at some point a company - sorry, an employee may leave their job?‑‑‑On what basis?

PN1496

On any basis?‑‑‑Well an employee can choose to leave their job for any reason at any time with notice, yes.

*** JANET ELIZABETH O'BRIEN XXN MS BURKE

PN1497

That's right, yes. If that occurs you will incur recruitment costs if you need to replace the employee?‑‑‑Yes, that's correct.

PN1498

You'll incur training costs?‑‑‑Yes.

PN1499

There's be productivity issues that you've identified?‑‑‑Yes, which is why we tend to take a flexible approach.

PN1500

I understand. Under the - are you familiar with the ACTU's proposed clause that is being sought in this proceeding?‑‑‑Yes.

PN1501

I don't want it to be a memory test so I might - I'm happy to give you a copy if that would help?‑‑‑Yes.

PN1502

Does anyone else need one?

PN1503

DEPUTY PRESIDENT GOOLEY: I hope that's not the first time you've looked at it.

PN1504

MR WARD: Well it's been changed so many times, your Honour.

PN1505

MS BURKE: Just having a look there and in particular I will ask you to look at X.3. Under the ACTU's clause an employee who's asking or who is giving notice of working flexible work arrangements, family friendly work arrangements, would have to give - would have to give the employee some notice about the period of time required for that arrangement. Do you understand that?‑‑‑Yes.

PN1506

Also at the time they would need to give you as their employer notice of their intention to revert to their previous hours if that's what they were seeking?‑‑‑Yes.

PN1507

So in those circumstances, if you needed to hire somebody to fill the hours that the person seeking the family friendly arrangement was leaving vacant, you would know how long you would need that replacement employee for?‑‑‑Yes.

PN1508

Accepting of course that you can't always predict the future but - - -?‑‑‑Yes.

PN1509

So you would also have to inform that replacement employee that their position is a temporary one, and I'll just take you to clause X.5.1 of the proposed clause.

*** JANET ELIZABETH O'BRIEN XXN MS BURKE

PN1510

MR FERGUSON: I object to this. This witness can't give an interpretation of this. The effect of the clause will be what it is. The ACTU can make submissions but - - -

PN1511

PRESIDENT ROSS: The questions will come but she's not being asked to give an interpretation.

PN1512

MS BURKE: Would you like me to ask that question again?‑‑‑Yes, please.

PN1513

You can see there that clause X.5.1 provides that:

PN1514

An employee engaged to replace an employee on a family friendly working arrangement must be informed of the temporary nature of their engagement.

PN1515

So if this clause applied to your organisation, you would need to inform the replacement employee that it was a temporary nature.

PN1516

MR FERGUSON: I object on the same basis.

PN1517

PRESIDENT ROSS: No, keep going.

PN1518

THE WITNESS: It's the same process we followed with Shelby's replacement when she was on maternity leave.

PN1519

MS BURKE: You do that anyway?‑‑‑Yes.

PN1520

So in those circumstances you could hire somebody, the replacement employee, as a casual as you've done - or as you've done in the past I'm sorry with Shelby's replacement?‑‑‑Yes.

PN1521

Or you could hire somebody on a fixed term contract?‑‑‑Yes.

PN1522

In those circumstances you wouldn't need to pay redundancy costs as you foreshadowed in your statement would you?‑‑‑Potentially, yes.

PN1523

Thank you, I don't have any other questions. Thank you Ms O'Brien.

*** JANET ELIZABETH O'BRIEN XXN MS BURKE

PN1524

PRESIDENT ROSS: Any re-examination?

RE-EXAMINATION BY MR FERGUSON [2.37 PM]

PN1525

MR FERGUSON: Just one. You were asked a question to the effect of whether or not you consider there were any or whether or not you thought the arrangement with Shelby was working well, and you gave evidence - you indicated that there was some issues. Can you explain what those issues were?‑‑‑Yes, they relate to the handover of operational information. So it's - there are multiple subject areas around safety, around organising transport, that can be quite significant in terms of handover information s that that can be managed by someone when she - on her non-working day.

PN1526

Have there been any problems with those handovers that have arisen sine the arrangement's been in place?‑‑‑Yes, as I understand it there have. But nothing that is currently insurmountable.

PN1527

Thank you.

PN1528

PRESIDENT ROSS: Thank you for your evidence, Ms O'Brien. You're excused.

<THE WITNESS WITHDREW [2.38 PM]

PN1529

PRESIDENT ROSS: We might just stand down for a couple of minutes while we get the IT sorted.

SHORT ADJOURNMENT [2.39 PM]

RESUMED [2.48 PM]

PN1530

MS BHATT: Ai Group calls Jeremy Lappin.

PN1531

THE ASSOCIATE: Please state your full name and address.

PN1532

MR LAPPIN: Jeremy Lappin, (address supplied).

<JEREMY LAPPIN, AFFIRMED [2.49 PM]

EXAMINATION-IN-CHIEF BY MS BHATT [2.49 PM]

*** JANET ELIZABETH O'BRIEN RXN MR FERGUSON

*** JEREMY LAPPIN XN MS BHATT

PN1533

MS BHATT: Good afternoon, Ms Lappin. Could you please state your full name for the record?‑‑‑Jeremy Lappin.

PN1534

Your address please?‑‑‑(Address supplied).

PN1535

Have you prepared a statement for the purposes of these proceedings?‑‑‑Yes.

PN1536

Do you have a copy of it there with you?‑‑‑Yes, I do.

PN1537

Does that statement have some 20 paragraphs?‑‑‑It does.

PN1538

It's dated 26 September 2017?‑‑‑Yes.

PN1539

Does your statement also have some 32 attachments numbered attachment A through to attachment ZF?‑‑‑Yes.

PN1540

Are there any corrections or amendments you wish to make to the statement?‑‑‑No.

PN1541

Is there statement true and correct to the best of your knowledge?‑‑‑Yes.

PN1542

I tender the statement and attachments.

PN1543

PRESIDENT ROSS: Mark that exhibit AIGROUP3.

EXHIBIT #AIGROUP3 WITNESS STATEMENT OF JEREMY LAPPIN DATED 26/09/2017, TOGETHER WITH 32 ATTACHMENTS

PN1544

MS BHATT: Witness is available for cross-examination.

CROSS-EXAMINATION BY MS BURKE [2.50 PM]

PN1545

MS BURKE: Good afternoon, Mr Lappin. I'm going to start by asking you some questions about your evidence about LimeSurvey. You've given a little bit of evidence about LimeSurvey. Have you used that software before this proceeding? Sorry I didn't - - -?‑‑‑No.

*** JEREMY LAPPIN XXN MS BURKE

PN1546

So you wouldn't describe yourself as a particularly experienced user of it?‑‑‑No.

PN1547

So where does the evidence that you've given then at paragraphs 4 and 5, where does that come from. Is that your knowledge?‑‑‑So the version and build is written on the home page of LimeSurvey, the page that I interacted with most of the time.

PN1548

Yes?‑‑‑And the second paragraph is how LimeSurvey describes itself. If you Google LimeSurvey this is how it describes it but it's also the description that was given to me by Brett von Holt who's the person who helped me with any IT issues to do with using LimeSurvey.

PN1549

Is Mr von Holt an employee of the Australian Industry Group or is he a LimeSurvey person?‑‑‑He works for Ai Group.

PN1550

Do you know - please just tell me if you don't know the answer to these questions. I just want to ask you about the sort of data that LimeSurvey captures, because you've extracted some of that data?‑‑‑Mm.

PN1551

It captures the responses to the survey?‑‑‑Yes, as far as I understand it, that's right.

PN1552

Each response, and you can - I don't know if you can see that properly. We can enlarge it if you like but each response has a response ID?‑‑‑Yes, that's right.

PN1553

Do you know if LimeSurvey allocated that number or if it was done by AiG?‑‑‑I'm not sure.

PN1554

Now in your statement and I'm looking here at paragraph 8, you give some evidence about the survey completion data?‑‑‑That's right.

PN1555

You've said that 2616 respondents submitted a complete response and 2994 did not submit a complete response?‑‑‑Mm.

PN1556

So the total there is 5610 responses?‑‑‑Okay.

PN1557

Do you know how many people the survey went to?‑‑‑No, I don't.

*** JEREMY LAPPIN XXN MS BURKE

PN1558

So where did you get these two figures in the table in paragraph 8 from?‑‑‑So the figures in this is when you - - -

PN1559

I can ask the question in a different way. Did you get those figures from LimeSurvey?‑‑‑I don't recall getting those exact figures from LimeSurvey myself and because it was three months ago I assume that I did get it from LimeSurvey as small amounts of data that, you know, as you move through selecting the survey, because I had access to just this survey. When you select it, it informs you of small bits of things, like how many people submitted the survey and I don't remember collecting that evidence like those two pieces of data from any particular point, but I assumed that where I got it from was LimeSurvey.

PN1560

Is it possible that you were told this information from someone at the Australian Industry Group?‑‑‑Yes, I think that that's possible.

PN1561

Have you seen the 2994 incomplete responses?‑‑‑I have not, no.

PN1562

So you don't have that data?‑‑‑No.

PN1563

At paragraph 7 you've said that your understanding is that the survey closed at 4 o'clock on 8 September. Where does this understanding come from?‑‑‑I was told that.

PN1564

Who were you told that by?‑‑‑Brett von Holt again.

PN1565

Now at paragraph 11 of your statement this is where you explain that you exported the 2616 completed responses to Excel. Was it - sorry, who asked you to do that?‑‑‑So I received instructions from the policy team.

PN1566

Who in particular?‑‑‑Richie Bhatt.

PN1567

Are you an experienced user of Excel?‑‑‑Yes, a relatively experienced used. Probably over the last 20 years I've used it relatively regularly and in my job at Ai Group I use it on a daily or second daily basis.

PN1568

This was not the first time you've used it?‑‑‑No.

PN1569

So you exported the raw data, that's in attachment B?‑‑‑Yes.

*** JEREMY LAPPIN XXN MS BURKE

PN1570

That is the spreadsheet that is open on the screen there. I won't take you through the whole spreadsheet but just for the purposes of the transcript there are 150 columns of data in which transcript, the questions that were in the survey start at column E and then they cover each potential - they include each potential answer that was available to respondents for each question, which is why there's so many?‑‑‑Sure.

PN1571

Now do you know if this is all the information that you can pull out of LimeSurvey for this particular survey?‑‑‑I don't now the limits of what one survey can do with the data that it accessed. I'm not sure.

PN1572

So do you know in particular if you can pull out the IP address of a respondent to a survey?‑‑‑No, I don't know that.

PN1573

Have a look at column B in this spreadsheet. Is that big enough? Can you see that properly?‑‑‑Yes, I can see that.

PN1574

This is the date submitted column, and you'll notice there that all of the entries, and I'm happy for the Associate to scroll if you like, are the same date and time. That's 1 January 1980, so it's unlikely to be accurate?‑‑‑Yes.

PN1575

Do you know why that is?‑‑‑I don't know.

PN1576

So your evidence is that the survey closed on the 8th but you didn't export the data until 19 September?‑‑‑Yes, that's right if - I'd have to refer to my statement to check the exact date.

PN1577

Yes, certainly and just for clarification that's at paragraphs 7 and 10 of your statement?‑‑‑At 10, is that right?

PN1578

19 September is when you actually exported this data?‑‑‑Yes, that's right, that's right.

PN1579

Do you know if it's possible that respondents were still completing the survey between 8 and 19 September?‑‑‑I don't know if that's possible or not or not possible.

*** JEREMY LAPPIN XXN MS BURKE

PN1580

You'd agree wouldn't you that we can't actually tell from these timestamps when the dates - when the survey was completed?‑‑‑I personally can't tell from those date stamps and the time that I exported the data. I don't know that that occurred, but that's what I was informed of.

PN1581

After you exported the data you manipulated it in the way you've described in paragraph 11?‑‑‑Yes, that's right.

PN1582

In summary form, you did some formatting changes to make it easier to read and added some additional columns and calculations?‑‑‑That's right.

PN1583

What you've produced is attachment C?‑‑‑Mm.

PN1584

Can I ask that that document come up please. So you can see it's much easier to read now, there are headings, there's different colours. At paragraph 11(b) of your statement you've explained that answers - respondents were asked if they were covered by a modern award and a number of them answered no, and those answers were deleted?‑‑‑That's right.

PN1585

Just to be clear, your statement says that these responses were deleted from the spreadsheet. Was it you who deleted them or did someone else do that?‑‑‑I deleted them.

PN1586

Who told you to do that?‑‑‑The - so the - either in a conversation with Richie Bhatt but I think from my recollection I had a Word document of instructions and that would have been step whatever in that Word document of instructions to export the data and then delete the responses that were no or don't know.

PN1587

Who provided you with that Word document of instructions?‑‑‑The policy team.

PN1588

You haven't annexed that to your statement?‑‑‑No.

PN1589

Do you have that available?‑‑‑I don't have it, no.

PN1590

Could it be made available? Would you be able to get it?‑‑‑It exists, yes.

PN1591

I call for that note of instructions.

PN1592

PRESIDENT ROSS: Ms Bhatt, can you make arrangements to get a copy of that and provide it to - - -

*** JEREMY LAPPIN XXN MS BURKE

PN1593

MS BHATT: We'll have discussions with the ACTU, yes.

PN1594

PRESIDENT ROSS: Thank you. I'm assuming you don't have it with you.

PN1595

MS BHATT: No.

PN1596

PRESIDENT ROSS: No.

PN1597

MS BURKE: Were you asked to delete any other responses?‑‑‑No.

PN1598

So when you - and just I'm getting this number just from basic maths but you shouldn't assume that I'm 100 per cent accurate, even on basic maths. There were 2616 complete responses and your evidence is that you deleted all of those who answered no or don't know to the question about award coverage, and that left 2032 responses?‑‑‑Yes, that's right.

PN1599

So that's 584 that were deleted?‑‑‑Sure, yes.

PN1600

PRESIDENT ROSS: Can I just ask you a question about that. When you say you deleted, did you delete them from the whole of the data or just from this question?‑‑‑Just from this Excel document.

PN1601

MS BURKE: So what we're left with here are 2032 responses out of a total of 5610?‑‑‑Yes, that's right.

PN1602

The next thing you did was calculate the total number of employees; full-time, part-time, casual and the overall total?‑‑‑Mm.

PN1603

Who instructed you to do that?‑‑‑The policy team again.

PN1604

And again the individual who instructed you to do that?‑‑‑The - well Richie Bhatt was my contact on the policy team.

PN1605

The calculations you performed you said indicated that the 2032 survey respondents employed a total of 177,749 employees, and I don't want this to be a memory test. That's at paragraph 13 of your statement?‑‑‑Yes, sure. That sounds right.

*** JEREMY LAPPIN XXN MS BURKE

PN1606

Do you know how many award covered employees there are in Australia?‑‑‑I don't.

PN1607

Have you seen the Australian Industry Group's submissions in this matter?‑‑‑I haven't.

PN1608

Can I ask please that the witness be shown page 182? What you'll see there, looking at paragraph 516, is a table that has three columns, the number of employees, the number of respondents and the percentage of respondents, and this is obviously about the number of employees that each of the 2032 respondents employ?‑‑‑Mm.

PN1609

If you look there at the footnote 399 - no, sorry, that's no accurate. The footnote above at 398, it says this data in the submission comes from your calculations?‑‑‑Mm.

PN1610

Can I ask now please that column N and attachment C be gone to. Just highlight it. Yes. You can see that there. So that's all employees, it's in black. That's a column that you created?‑‑‑That's right, yes.

PN1611

Can I ask please that that be sorted in an ascending order. Can you see there that there's a number of zeros for all employees?‑‑‑Okay.

PN1612

Can I ask please that that just be scrolled down and if you get to cell - sorry, go back up. If you get to cell 44 I think. So you can see there that 43 respondents don't employ anyone?‑‑‑(No audible reply).

PN1613

I'm sorry, you need to answer for the transcript?‑‑‑Yes, I can see that.

PN1614

Did you notice this when you were doing your calculations about the number of employees?‑‑‑I don't remember it striking me, no. I didn't check line by line the numbers of employees and it didn't jump out at me, no.

PN1615

Do you know anything about the survey logic, the way it was designed?‑‑‑No, not at all.

*** JEREMY LAPPIN XXN MS BURKE

PN1616

So going back to the AiG submissions which you should have open in front of you there, at the table at 516, where it says that there are 1,108 respondents who employed between one to 19 employees, that's wrong, isn't it?‑‑‑I don't know that that's wrong.

PN1617

Well, those three numbers in the middle column, 1108, 762 and 162, they add up to 2,032?‑‑‑Yes.

PN1618

There are 2,032 respondents in this spreadsheet?‑‑‑Okay.

PN1619

And 43 of them don't employ anyone at all?‑‑‑Okay.

PN1620

So in those circumstances it follows, doesn't it, that there aren't 1,108 respondents who employ one to 19 people. It would be less 43 because 43 don't employ anyone at all?‑‑‑That sounds right, yes.

PN1621

So a total number of respondents who actually employ anyone in this dataset should actually be 1,989, shouldn't it, because that's 2,032 minus 43?‑‑‑Yes, trusting your maths, that sounds right.

PN1622

I'm happy to give you some time to - all right. Going back to your paragraph 8, I think you agree with me that the two numbers there in that table add up to 5,610?‑‑‑Yes.

PN1623

So that's the total number of respondents to this survey?‑‑‑Yes.

PN1624

Can we go back to attachment B, please? This is the raw data that you exported and didn't do anything to?‑‑‑That's right.

PN1625

Can I ask, please ‑ and sorry, and just as a reminder, this contains the 2,616 complete responses. You can see there that column A, the response ID, the first number is 50. And then if you look down a bit it skips 56, then it skips 59 and 60 and so on. Can we assume from that that the first 49 responses were incomplete?‑‑‑I really don't know how the response ID gets allocated so it might be that it allocates it at 50 first. I have no knowledge about how the response IDs are allocated at all.

PN1626

Can I ask, please, that this spreadsheet be sorted by column A from largest to smallest? Can you see that response ID at the top is 5,839?‑‑‑Mm hmm.

*** JEREMY LAPPIN XXN MS BURKE

PN1627

Does this suggest that there are at least 5,839 responses?‑‑‑I really don't know what it suggests. It's a response ID. I mean, you might be able to reason that that's it but I don't know why those numbers are those numbers.

PN1628

But your evidence is that there were 5,610 responses?‑‑‑Yes.

PN1629

So if that number is an accurate response ID, as in if that's meant to represent 5,839 responses, the difference between 5,610 and 5,839 is 229 responses?‑‑‑Okay.

PN1630

Can you explain what happened to those responses?‑‑‑I don't know that they are responses and I don't know what happened to those numbers at all, no.

PN1631

We'll just go back to attachment C and I'll ask that the response ID column be sorted largest to smallest just to confirm that that's the same; you get the same result doing that. And it was this dataset, column C, from which you generated the reports that are attached to your statement and marked attachments E to ZF?‑‑‑No.

PN1632

No?‑‑‑No.

PN1633

So it wasn't the 2,032?‑‑‑It's not, no. It's not, it's not.

PN1634

Which set was it, I'm sorry?‑‑‑The dataset that was used for those ‑ and I think it indicates on the front of each attachment, the total records in the survey says 2,616 and that was the data that was used. So the Excel data was specifically, as I say in the statement, used just to calculate the total number of employees. All of the rest of the attachments are calculated directly from Lime.

PN1635

Directly from Lime, and so does that mean that the attachments E to ZF which are award‑specific reports, except for the first one which is all awards, is capturing responses from people who said they weren't covered by any award?‑‑‑No, that's not what that means, no.

*** JEREMY LAPPIN XXN MS BURKE

PN1636

So what happens then to the 584 responses who've said no? They don't turn up in the reports at all?‑‑‑That's right. They'd be filtered out because you choose certain filters and you click the button that says, "Are you covered by an award?" And it says, "Yes," and Lime does that work itself. So the responses that would be in those 2,616 I think, just based on the logic of what happens, is that it would filter itself just to include the people who responded, "Yes," to an award because it's asking specifically, "Are you covered by an award and which award was that?"

PN1637

Yes, I see. But Lime doesn't filter ‑ because no ‑ sorry, I withdraw that. Lime doesn't filter for whether or not any of those 2,616 employ anyone at all? If there's a zero in any of the employee columns that won't affect whether or not that response is included in a report?‑‑‑I'm not sure whether that's true or not.

PN1638

All right. Thank you. Those are all my questions.

PN1639

JUSTICE ROSS: Any re‑examination?

PN1640

MS BHATT: No re‑examination.

PN1641

JUSTICE ROSS: Thank you for your evidence. You're excused.

<THE WITNESS WITHDREW [3.10 PM]

PN1642

JUSTICE ROSS: How have you gone with Mr Hoang and whether he'll be here in person or ‑ ‑ ‑

PN1643

MR ARNDT: Your Honour ‑ ‑ ‑

PN1644

JUSTICE ROSS: I think the way we're going, video conferencing might be a bit tricky, that's all.

PN1645

MR ARNDT: Absolutely, your Honour. Mr Hoang, he's making arrangements or has made arrangements to arrive ‑ to travel from Melbourne to Sydney tomorrow so, all going well, he will be here slightly early, if not on time.

PN1646

JUSTICE ROSS: So nothing further until 10 o'clock tomorrow? Just in case I forget tomorrow, and my associate may have already contacted you about this, but can you just make sure that we have Word copies of your submissions and the witness statements and the material that you've filed? It needn't be done immediately but, yes, at some point.

PN1647

MS BURKE: I'll be able to attend to that in Melbourne next week.

PN1648

JUSTICE ROSS: Of course. Yes, no, of course. Good luck trying to attend to it here. No, no, it's just I usually remember this long after the event but I'm just reminded to do it now, that's all.

*** JEREMY LAPPIN XXN MS BURKE

PN1649

MS BURKE: We don't have internet in the hotel either, your Honour, so we're all in the same boat.

PN1650

JUSTICE ROSS: No, I'm in the same boat. Right, see you at 10 o'clock tomorrow.

PN1651

MS BURKE: Thank you.

ADJOURNED UNTIL THURSDAY, 14 DECEMBER 2017 [3.12 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

KATIE ROUTLEY, AFFIRMED....................................................................... PN978

EXAMINATION-IN-CHIEF BY MS BURKE.................................................. PN978

EXHIBIT #ACTU7 WITNESS STATEMENT OF KATIE ANN ROUTLEY PN991

CROSS-EXAMINATION BY MR WARD........................................................ PN992

THE WITNESS WITHDREW.......................................................................... PN1056

SHERRYN JONES-VADALA, AFFIRMED.................................................. PN1065

EXAMINATION-IN-CHIEF BY MS BURKE................................................ PN1065

EXHIBIT #ACTU8 WITNESS STATEMENT OF SHERRYN JONES-VADALA DATED 06/05/2017............................................................................................................. PN1079

CROSS-EXAMINATION BY MR WARD...................................................... PN1080

THE WITNESS WITHDREW.......................................................................... PN1185

SASCHA LEE HAMMERSLEY, AFFIRMED............................................... PN1191

EXAMINATION-IN-CHIEF BY MS BURKE................................................ PN1191

EXHIBIT #ACTU9 WITNESS STATEMENT OF SASCHA HAMMERSLEY DATED 01/05/2017............................................................................................................. PN1201

CROSS-EXAMINATION BY MR FERGUSON............................................ PN1202

THE WITNESS WITHDREW.......................................................................... PN1241

JESSICA VAN DER HILST, AFFIRMED...................................................... PN1249

EXAMINATION-IN-CHIEF BY MS BURKE................................................ PN1249

EXHIBIT #ACTU10 WITNESS STATEMENT OF JESSICA VAN DER HILST DATED 06/05/2017............................................................................................................. PN1260

CROSS-EXAMINATION BY MR FERGUSON............................................ PN1261

THE WITNESS WITHDREW.......................................................................... PN1288

EXHIBIT #ACTU11 WITNESS STATEMENT OF MICHELLE OGULIN DATED 01/05/2017, TOGETHER WITH FIVE ATTACHMENTS................................................ PN1294

EXHIBIT #ACTU12 WITNESS STATEMENT OF MONICA BOWLER DATED 21/04/2017, TOGETHER WITH ONE ATTACHMENT................................................... PN1296

EXHIBIT #ACTU13 WITNESS STATEMENT OF NICOLE MULLAN DATED 03/05/2017, TOGETHER WITH FIVE ATTACHMENTS................................................ PN1298

EXHIBIT #ACTU14 WITNESS STATEMENT OF ANDREA SINCLAIR DATED 08/05/2017, TOGETHER WITH NINE ATTACHMENTS................................................ PN1300

EXHIBIT #ACTU15 WITNESS STATEMENT OF PERRY ANDERSON DATED 27/04/2017, TOGETHER WITH TWO ATTACHMENTS................................................ PN1302

EXHIBIT #ACTU16 WITNESS STATEMENT OF WITNESS 1 DATED 02/05/2017, TOGETHER WITH FIVE ATTACHMENTS................................................ PN1307

ASHLEE SIMONE CZERKESOW, AFFIRMED.......................................... PN1314

EXAMINATION-IN-CHIEF BY MS BURKE................................................ PN1314

EXHIBIT #ACTU17 WITNESS STATEMENT OF ASHLEE SIMONE CZERKESOW DATED 08/05/2017............................................................................................................. PN1326

CROSS-EXAMINATION BY MR WARD...................................................... PN1327

THE WITNESS WITHDREW.......................................................................... PN1366

JANET ELIZABETH O'BRIEN, SWORN...................................................... PN1381

EXAMINATION-IN-CHIEF BY MR FERGUSON....................................... PN1381

EXHIBIT #AIGROUP1 WITNESS STATEMENT OF JANET O'BRIEN DATED 30/10/2017............................................................................................................................... PN1391

EXHIBIT #AIGROUP2 SUPPLEMENTARY WITNESS STATEMENT OF JANET O'BRIEN DATED 11/12/2017.............................................................................................. PN1397

CROSS-EXAMINATION BY MS BURKE..................................................... PN1398

RE-EXAMINATION BY MR FERGUSON.................................................... PN1524

THE WITNESS WITHDREW.......................................................................... PN1528

JEREMY LAPPIN, AFFIRMED...................................................................... PN1532

EXAMINATION-IN-CHIEF BY MS BHATT................................................ PN1532

EXHIBIT #AIGROUP3 WITNESS STATEMENT OF JEREMY LAPPIN DATED 26/09/2017, TOGETHER WITH 32 ATTACHMENTS...................................................... PN1543

CROSS-EXAMINATION BY MS BURKE..................................................... PN1544

THE WITNESS WITHDREW.......................................................................... PN1641